Scalia realises that Heller decision was a mistake

upon encounter with open carry idiot:

Shaddup You Face.

I'm not sure how to dedicate this song, but it is not to the owner of this blog.  It is to at least one person, maybe two (four? five?).



No disrespect is intended for the majority of Italian Americans: only one who really needs to heed this advice.

Judge Richard Posner on Scalia's dismissal of the first clause in the Heller decision

It's nice when the leading CONSERVATIVE jurist backs up my opinion.

Similarly, the book’s defense of the Heller decision fails to mention that most professional historians reject the historical analysis in Scalia’s opinion. Reading Law quotes approvingly Joseph Story’s analysis of preambles—“the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute”—but fails to apply the analysis to the preamble of the Second Amendment, which reads: “A well regulated Militia being necessary to the security of a free State.” The preamble implies that the Second Amendment (which creates a right “to keep and bear arms”) is not about personal self-defense, but about forbidding the federal government to disarm state militias. Contra Story, Justice Scalia treated the preamble dismissively in his opinion in Heller.

Actually, the proeme should act as a built in sunset clause.  It states the purpose for which the law was written, and once that purpose is no longer necessary: neither is the law.

In other words, those who would ask that we ignore it are tacitly admitting that the Second Amendment has no place in 21st Century America.

And if we are going to get into it, Aymette v State, 2 Humphreys 154 (Tenn. 1840), also contradicts what Scalia claims, which is " Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment . Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons.":

 We think there is a manifest distinction.  In the nature of things, if they were not allowed to bear arms openly, they could not bear them in their defence of the state at all.  To bear arms in defence of the state is to employ them in war, as arms are usually employed by civilized nations.  The arms, consisting of swords, muskets, rifles, etc., must necessarily be borne openly; so that a prohibition to bear them openly would be a denial of the right altogether.  And, as in their constitution the right to bear arms in defence of themselves is coupled with the right to bear them in defence of the state, we must understand the expressions as meaning the same thing, and as relating to public, and not private, to the common, and not the individual, defence...

 ...To make this view of the case still more clear, we may remark that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides "that no citizen of this state shall be compelled to bear arms provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms.  A man in the pursuit of deer, elk, and buffaloes might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.  So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

If the authorities are not helpful to his argument, it is because they contradict that argument.

Or did Scalia not bother actually reading Aymette and hope that no one else would and call him on it?

As is the case with most "pro-gun" arguments, Scalia's opinion in the Heller case does not withstand close scrutiny.

That Which Shall Not Be Infringed

Justice Scalia Offers Some Comments on Gun Control While Hawking his new Book

Lets Get Rid of the Appearance of (and Actual) Corruption in the Supreme Court

The following story raises some very deep and troubling questions about our current Supreme Court Justices.  The LA Times Story below is not the only instance  where the Justices appear to have relationships, including financially benefiting from activities, that compromise their appearance of propriety, as shown here in the New York Times from earlier this year.

We should be pursuing removal of these two Justices from the bench, and we also should be pursuing adding a requirement that the Supreme Court abide by the same judicial rules of ethics as lower courts.  This is not an unreasonable thing to request of the members of a body that have so much power; rather this should be mandated precisely because of the power and authority of the courts.

I adamantly believe that the right is correct in that Justice Kagan should be recusing herself from participating in the Supreme Court decision on the health care reform legislation that the right likes to call Obamacare.  I will be surprised and disappointed if she does not do so; for her to participate would be very wrong.

But if both Justices Scalia and Thomas do NOT recuse themselves from participating in this SCOTUS decision, they should be removed from office for corruption.

Where the difference occurs is that Justice Kagan has a clear conflict of interest because of her role in the White House during the legislative process that produced the health care reform.  She absolutely cannot be an impartial person in this matter.

But Thomas and Scalia have personally BENEFITED, materially and substantially from their relationships with one side of the case, prior to the matter coming before the court. And now apparently DURING the time the matter has come before the court as well; there is a clear bias on their parts as well as profit.

Read the story below; apparently these two conservative Justices no longer consider it worth their while to even pretend to be unbiased or impartial.  Maybe they think the right is so used to crony capitalism, SuperPacs and dirty money, that no one will notice, or care.  They are beyond shame.

They are wrong on both counts. It's time they were off the bench, in disgrace. That disgrace should be shared by the people and entities which were willing to behave unethically, and by the Presidents who nominated them for the Supreme Court.

From the L.A. Times:

Scalia and Thomas dine with healthcare law challengers as court takes case

Supreme Court Justice Antonin Scalia speaks to a policy forum in Washington last month. (Manuel Balce Ceneta/AP)

• Also
• Opinion: Will partisanship shape the healthcare ruling?
• Supreme Court puts healthcare law in campaign spotlight
• In a surprise, D.C. appeals court upholds healthcare law
• Supreme Court to hear in vitro case

By James Oliphant

November 14, 2011, 3:50 p.m.

The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.

The occasion was last Thursday, when all nine justices met for a conference to pore over the petitions for review. One of the cases at issue was a suit brought by 26 states challenging the sweeping healthcare overhaul passed by Congress last year, a law that has been a rallying cry for conservative activists nationwide.

The justices agreed to hear the suit; indeed, a landmark 5 1/2-hour argument is expected in March, and the outcome is likely to further roil the 2012 presidential race, which will be in full swing by the time the court’s decision is released.

The lawyer who will stand before the court and argue that the law should be thrown out is likely to be Paul Clement, who served as U.S. solicitor general during the George W. Bush administration.

Clement’s law firm, Bancroft PLLC, was one of almost two dozen firms that helped sponsor the annual dinner of the Federalist Society, a longstanding group dedicated to advocating conservative legal principles. Another firm that sponsored the dinner, Jones Day, represents one of the trade associations that challenged the law, the National Federation of Independent Business.

Another sponsor was pharmaceutical giant Pfizer Inc, which has an enormous financial stake in the outcome of the litigation. The dinner was held at a Washington hotel hours after the court's conference over the case. In attendance was, among others, Mitch McConnell, the Senate’s top Republican and an avowed opponent of the healthcare law.

The featured guests at the dinner? Scalia and Thomas.

It’s nothing new: The two justices have been attending Federalist Society events for years. And it’s nothing that runs afoul of ethics rules. In fact, justices are exempt from the Code of Conduct that governs the actions of lower federal judges.

If they were, they arguably fell under code’s Canon 4C, which states, “A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event.“

Nevertheless, the sheer proximity of Scalia and Thomas to two of the law firms in the case, as well as to a company with a massive financial interest, was enough to alarm ethics-in-government activists.

“This stunning breach of ethics and indifference to the code belies claims by several justices that the court abides by the same rules that apply to all other federal judges,” said Bob Edgar, the president of Common Cause. “The justices were wining and dining at a black-tie fundraiser with attorneys who have pending cases before the court. Their appearance and assistance in fundraising for this event undercuts any claims of impartiality, and is unacceptable.”

Scalia and Thomas have shown little regard for critics who say they too readily mix the business of the court with agenda-driven groups such as the Federalist Society. And Thomas’ wife, Ginni, is a high-profile conservative activist.

Moreover, conservatives argue that it’s Justice Elena Kagan who has an ethical issue, not Scalia and Thomas. Kagan served as solicitor general in the Obama administration when the first legal challenges to the law were brought at the trial court level. Her critics have pushed for Kagan to recuse herself from hearing the case, saying that she was too invested in defending the law then to be impartial now. Kagan has given no indication she will do so.

Roe and Heller

Very little of the criticism this page receives addresses the most valid point of criticism which is how can I be upset about DC v. Heller, but not Roe v. Wade, 410 U.S. 113 (1973)? But that also works the other way, How can you like Heller-McDonald, but not Roe v. Wade?

There is a simple non-legal answer which is that the most blatant form of tyranny is when a government interferes with a woman’s personal choice to have a child. This is a matter between a woman, her doctor, and her significant other with no place for government interference.

I am amazed at how many people want “gun rights” and freedom from government interference, yet balk at abortion. Also, it is amazing that people can call themselves “pro-life”, yet have no problem with shooting and killing someone. Or even capital punishment.

I mentioned use-benefit analysis in another post and personally, I find abortion to be far more of a right to be protected than some illusory “gun right”.

That said, I have several legal grounds to dislike Heller.

The first is that it is poorly written and does not stand scrutiny. Anyone who has read my posts can see that there are multiple lines of attack of this POS written by a committee.

Secondly, Scalia has had to violate everything he claims to believe in regarding judicial practise. The most egregious of these being that Scalia’s dissent in Planned Parenthood v. Casey, 505 U.S. 833 (1992) acknowledged that abortion rights are of “great importance to many women”, but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it!

In fact, reading Planned Parenthood v. Casey makes me even more curious as to how Scalia could deign to find a right of self-defence in the Second Amendment.

Scalia does everything that he expresses disgust in in his Planned Parenthood dissent.

The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

Roe v. Wade on the other hand, has some legal basis to support it. The Supreme Court rested its conclusions in Roe on a previously recognized constitutional right to privacy emanating from the Due Process Clause of the Fourteenth Amendment. Justice Blackmun said that the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

I am of the school that the decision is correct, but for the wrong reason. The First Amendment States that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

I extend this right to include exercising personal beliefs concerning the beginning of life. The morality of abortion is grounded in the precise belief of the nature of the fetus in Christianity, Judaism, Humanism as well as other religions and ethical systems,. There is a general consensus that when the foetus becomes a human person, then abortions should be severely limited. The question is when does life begin? But that is an ethical decision. Most would confine abortions at the stage when the foetus is viable to situations that threaten the life of the pregnant woman; a very few would eliminate access to abortions totally. The problem that generates so much controversy is that no consensus exists in society over the point, between conception and birth, when personhood begins.

Jewish beliefs and practice concerning abortion do not neatly match either the “pro-life” nor the “pro-choice” points of view. The general principles of modern-day Judaism are that:

• The fetus has great value because it is potentially a human life. It gains “full human status at birth only.”
• Abortions are not permitted on the grounds of genetic imperfections of the fetus.
• Abortions are permitted to save the mother’s life or health.
• With the exception of some Orthodox authorities, Judaism supports abortion access for women.
• ”…each case must be decided individually by a rabbi well-versed in Jewish law.”

Islam allows for abortion in cases where the mother’s life is threatened.

Sikhism has no problem with abortion.

Additionally, while the “right to an abortion” may not be specifically mentioned in the Constitution, it is a personal choice relating to health, personal finances, beliefs and other issues that government has no right to intrude upon.

As I said in my use-benefit analysis post, there are some things which are beneficial to society, of which prevention of unwanted children is one.

At this point, I have to reiterate another point I have made in my posts, that the Heller decision did not invalidate gun control laws. The problem is that Scalia did not give any idea of the scope of his new right.

The problem is that there are loads of knee-jerk RKBA people out there who follow rather than think. They are told that there is an individual right enshrined in this decision and then say this is about time. They do not analyse what has been written or think about the implications.

Next post in this series, Wedge issues.

Scalia's Own Logic

The Chicago Tribune published a very entertaining opinion piece by Thomas William Heyck.

I've seen the light! After many years of believing that the U.S. Constitution should be made relevant to modern society, I've been converted by the arguments of Supreme Court Justice Antonin Scalia, whose brand of originalism (often called "strict construction") clearly and decisively settles all the issues of gun control.

True, the Second Amendment is a tad ambiguous. The phrase with which it begins does not fit with the last part: "A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed." That first phrase about "a well-regulated militia" only confuses things. The correct way to deal with it is to ignore it (as the current Scalia-led majority on the court happily does). That way, we get a little wiggle room to focus on the part that counts: "the right of the People to keep and bear arms shall not be infringed."

So there you are: By their very words the Founding Fathers plainly meant to protect the right of every person to own and bear muzzle-loading flintlock arms. But we true originalists logically cannot see any constitutional prohibition of governmental regulation of center-fire weapons, whether they be revolvers, assault rifles, automatic or pump shotguns, submachine guns, Glock automatics, or whatever. This truth will upset the arms industry, the drug gangs, prospective terrorists, the National Rifle Association and most gun nuts — and Justice Scalia himself, an avid hunter. But that's the inescapable deduction from Scalia's own irrefutable originalist logic.

Don't you just love that part where he said, "That first phrase about "a well-regulated militia" only confuses things. The correct way to deal with it is to ignore it (as the current Scalia-led majority on the court happily does)." For me, that just says it all.

What's your opinion? Please leave a comment.