September 16, 2012

A "Chill On The First Amendment" If There Ever Was One

Consider these things that have happened in the wake of the murder of U.S. Ambassador Christopher Stevens and four other Americans on Friday, and the rioting that has continued throughout the Middle East since then:

Martin Dempsey, the chairman of President Obama's Joint Chiefs of Staff, spoke Wednesday morning by phone with Terry Jones, pleading with the Florida-based anti-Islamic pastor to stop promoting a film that protesters have cited in the attacks on the U.S. consulate in Libya that killed at least four American diplomats.

And this:

Over at MSNBC, a riot of consensus broke out when contributors Mike Barnicle and Donny Deutsch as well as University of Pennsylvania professor Anthea Butler all agreed that the people behind the video should be indicted as accessories to murder. "Good morning," declared Butler, "How soon is Sam Bacile [the alleged creator of the film] going to be in jail folks? I need him to go now."

Barnicle set his sights on Terry Jones, the pastor who wanted to burn the Koran a while back and who was allegedly involved in the video as well. "Given this supposed minister's role in last year's riots in Afghanistan, where people died, and given his apparent or his alleged role in this film, where . . . at least one American, perhaps the American ambassador, is dead, it might be time for the Department of Justice to start viewing his role as an accessory before or after the fact.

And worst of all, this

Just after midnight Saturday morning, authorities descended on the Cerritos home of the man believed to be the filmmaker behind the anti-Muslim movie that has sparked protests and rioting in the Muslim world.

Los Angeles County sheriff's deputies escorted a man believed to be Nakoula Basseley Nakoula to an awaiting car. The man declined to answer questions on his way out and wore a hat and a scarf over his face. He kept his hands in the pockets of a winter coat.

I certainly hope these are isolated incidents that do not reflect a wider opinion on how to handle situations like the one we are going through.

It's bad enough when our government calls pastors and tells them not to do things (even when the pastor is a nut). It's really bad when big-name news commentators call for an end to the First Amendment. But the arrest or detention of the filmmaker is third-world tin-pot dictator territory. When someone pisses off the Head Honcho they arrest him on trumped up charges of corruption or reckless driving or whatever. Anything it takes to get him or her behind bars.

And everyone gets the message; don't piss off the Head Honcho.

Let's also get out of the way; the issue is not what prompted the riots. I don't believe for an instant it was the video, but that's actually irrelevant. The video could actually be the real and proximate cause and it still doesn't matter. No one in the United States government should call anyone and ask them to not do or say something because it might "inflame" someone somewhere.

It also doesn't matter if the maker of the video is guilty of the parole violation his is apparently being charged with. The message the Jihadis will get is that that U.S.government came up with a charge to take down the guy they're mad at. One down, so many more to go.

And the message Americans get is; don't write or produce anything that might piss off the Muslims to where they riot, or your own government will come after you. As has been said, any prosecutor can get a grand jury to indite a ham sandwich, so they can certainly come up with something to get anyone if they try hard enough. And even if you're not convicted, all that court time will break you through legal fees. it's intimidation 101.

Seems like a "chill on the First Amendment" to me.

Law Professor Glenn Reynolds calls it right:

When taking office, the President does not swear to create jobs. He does not swear to "grow the economy." He does not swear to institute "fairness." The only oath the President takes is this one:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

By sending -- literally -- brownshirted enforcers to engage in -- literally -- a midnight knock at the door of a man for the non-crime of embarrassing the President of the United States and his administration, President Obama violated that oath. You can try to pretty this up (It's just about possible probation violations! Sure.), or make excuses or draw distinctions, but that's what's happened. It is a betrayal of his duties as President, and a disgrace.

He won't resign, of course. First, the President has the appreciation of free speech that one would expect from a Chicago Machine politician, which is to say, none. Second, he's not getting any pressure. Indeed, the very press that went crazy over Ari Fleischer's misrepresented remarks seems far less interested in the actions of an administration that I repeat, literally sent brown-shirted enforcers to launch a midnight knock on a filmmaker's door.

But Obama's behavior -- and that of his enablers in the press -- has laid down a marker for those who are paying attention. By these actions he is, I repeat, unfit to hold office. I hope and expect that the voters will agree in November.

Any Jihadi worth his salt gets the message loud and clear: if someone in the United States gets under your skin, riot and kill a few Americans, and the government of the United States will take that person down for you.

In this case it is "only" an obscure video. But what is next? A Hollywood movie? A TV show? A newspaper columnist? Book author?

The Jihadis don't like a columnist? Riot and kill an American, and the chairman of the joint chiefs calls the newspaper or magazine editor? The cops arrest him or her for unpaid parking tickets?

If they figure out they can manipulate us this easy, imagine what this can go.

Finally, via Sister Toldjah, here is the original arrest picture followed by some parodies.

Arrest Picture


Arrest Picture Parody 2

Arrest Picture Parody1

Posted by Tom at 8:45 PM | Comments (0) | TrackBack

January 4, 2011

Is the Constitution a Gimmick?

When they take control of the House of Representatives this week, the new Republican majority will do something unprecedented; they will read the Constitution. They've even invited Democrats to join them, although it's not clear if any will.

Not being that long, it would only take about a half an hour or so to read it straight through. Because they'll be taking turns, they'll stretch it out.

Not only will will they read the Constitution, but this will be one of the new rules that House Republicans will pass that will change how Congress works:

Requiring lawmakers to cite the Constitutional authority for any piece of legislation: The Constitution will get a "starring role" in the new Republican-led Congress, says the Washington Post. The fact that this is noteworthy proves just how dysfunctional the House of Representatives has become. Legislators will now be required to outline, in the text of a bill, where in the Constitution the federal government is delegated the authority to carry out a given law. As Boehner said last fall, "If we cannot do this much - we should put down the pen and stop right there."

As you might imagine, this has the left all in a tizzy. They see it as a gimmick, an irrelevancy, or quaint. Most have taken to mocking the exercise. Telling, I think.

The sad reality is that many liberals ("progressives" probably being a better term) regard the United States Constitution as little more than a schedule for holding elections with a few amendments on civil rights. If you think that there is a right to an abortion in the Constitution, or that that there arem"penumbras" and "emanations" in it, then you're part of the problem too.

Don't believe me? A quick trip down memory lane tells us that many liberals/progressives/Democrats, and some Republicans (I won't call this group "conservatives), do need a refresher on what's in the Constitution. These videos were first published on this website last summer:

Democrat Representative Pete Stark (CA-13) ""The federal government can do most anything."

Congressman Phil Hare (D-IL), "I don't care what the Constitution says about this"

Congressman Bart Stupak (D-MI) who thinks that "life, liberty, and the pursuit of happiness" is in the Constitution:

Congressman Frank LoBiondo (R-NJ) who doesn't know the difference between Article 1 and the First Amendment:

Just last week liberal blogger Ezra Klein, a blogger for the Washington Post, gave an astonishing interview on MSNBC in which he said that the Constitution is "confusing" because it was written over 100 years ago:

To these people, the Constitution is an irrelevancy at best. They're interested in the exercise of raw power, and if they can get a law passed that's all that counts. Install some pliable judges who will substitute the Constitution for the liberal political agenda of the day and who cares what that ancient document, written by old white slave owning men, says?

So yes, I do rather think that not only is a reading of the Constitution in order, and I think that not only should members of Congress listen carefully and follow along with a printed copy, but everyone else should too.

Posted by Tom at 9:00 PM | Comments (7) | TrackBack

August 18, 2010

Reagan v Today's Democrats

"Those Voices Don't Speak for the Rest of Us"

Made by the Republican Study Committee, a caucus of House conservatives, this video shows our 40th President as contrasted with today's Democrat leadership. The differences could not be more stark. The Democrats come across as silly and childish, while Reagan demonstrates leadership and command of the issues and our founding principles.

This November the choice is equally clear. The Democrats believe in big-government solutions for everything, which also gave us government run health care and the "stimulus." Republicans stand for responsible reform guided by our free market principles.

As Reagan says in the video, the American people can plan their lives better than "a little intellectual elite in a far-distant capital." More, "a government can't control the economy without controlling people, and they know that when it sets out to do that it must use force and coercion to achieve it's purpose."

Reagan's words ring as true today as they did then. Free market principles and individual freedom are the keys to a strong, prosperous, America.

Posted by Tom at 8:00 AM | Comments (3) | TrackBack

August 4, 2010

Stark Raving Mad

Does Democrat Representative Pete Stark (CA-13) come across as crazier in the first video or the second? You decide:

About a week ago...

"The federal government can do most anything." No big surprise that Stark doesn't seem to recognize any limits to what the federal government can do. There are a whole slew of Democrats who agree with him.

h/t Powerline for both)

... and on October 18, 2007:

Bush just likes to blow things up!" Soldiers in Iraq are being killed "for the President's amusement!"

All of us say a few things every now and then that are off base, but really, this guy is too much.

Posted by Tom at 8:15 AM | Comments (1) | TrackBack

June 30, 2010

McDonald v. City of Chicago: Upholding the Constitution

In McDonald v. City of Chicago, the Supreme Court does the right thing:

In its second major ruling on gun rights in three years, the Supreme Court Monday extended the federally protected right to keep and bear arms to all 50 states. The decision will be hailed by gun rights advocates and comes over the opposition of gun control groups, the city of Chicago and four justices.

Justice Samuel Alito wrote for the five justice majority saying "the right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner."

The ruling builds upon the Court's 2008 decision in D.C. v. Heller that invalidated the handgun ban in the nation's capital. More importantly, that decision held that the Second Amendment right to keep and bear arms was a right the Founders specifically delegated to individuals. The justices affirmed that decision and extended its reach to the 50 states. Today's ruling also invalidates Chicago's handgun ban.

It always struck me as bizarre that anyone would claim that the Second Amendment could not be applied to the states. I know we went through this with the rest of the Bill of Rights, and I had thought that the issue was pretty much settled.

The issue is that liberals want to treat the Second Amendment like they treat immigration laws; as "fake" laws that ok are on the books but aren't meant to be enforced.

Some on the left will also claim that this decision represents "conservative activism," but this is not a serious argument.

Activism is when you're making things up that aren't in the constitution. Harry Blackmun found a right to abortion in the due process clause Constitution, but this was pure imagination. Likewise, the commerce clause has been stretched to the point where it's meaningless. But the Second Amendment is there in plain sight, and any study shows that it means an individual right to own firearms. So it's not judicial activism when you're striking down laws that blatantly violate the constitution.

Gun prohibition is dead, at least for now. Jurisdictions such as Chicago will have to obey all of the Constitution, and are rewriting their laws as I type this. Whether their rewritten laws pass muster will be determined in innumerable court cases. The McDonald decision correctly left open some gun control, the question will be how much is acceptable.

What is scary is that as with DC v Heller, this was a 5 - 4 decision. This shows the importance of winning elections, and of getting originalists on the Supreme Court. Four justices actually do not believe the Second Amendment means what it plainly says, or what the Founders meant it to mean. Now that is judicial activism.

Writing in The Washington Times, author and attorney David Kopel explains how the McDonald decision has implications for the current hearings on Elena Kagan's bid to replace John Paul Stevens on the Supreme Court:

Perhaps the most startling aspect of the Supreme Court opinions in McDonald v. Chicago was the dissenters' assault on District of Columbia v. Heller. Not only did Justice Stephen G. Breyer vote against extending the Second Amendment to state and local governments, he also argued forcefully and at length for overturning Heller and, therefore, for turning the Second Amendment into a practical nullity. Ominously, Justice Sonia Sotomayor joined the Breyer dissent - contradicting what she told the U.S. Senate and the American people last summer.

Regarding the key issue in McDonald - whether the 14th Amendment makes the Second Amendment enforceable against state and local governments - Justice Sotomayor resolutely refused to tell the senators how she might vote. So in voting against incorporating the Second Amendment, Justice Sotomayor was not inconsistent with what she had told the Senate. But regarding Heller, her actions as a justice broke her promises from last summer.

The Breyer-Sotomayor-Ruth Bader Ginsburg dissent urged that Heller be overruled and declared, "In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense."

Contrast that with her Senate testimony: "I understand the individual right fully that the Supreme Court recognized in Heller." And, "I understand how important the right to bear arms is to many, many Americans."

Yet her McDonald opinion shows her "understanding" that those many, many Americans are completely wrong to think they have a meaningful individual right.

To the Senate Judiciary Committee, Justice Sotomayor repeatedly averred that Heller is "settled law." The Associated Press reported that Sen. Mark Udall, Colorado Democrat, "said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases."

They're looking to overturn Heller, folks.

Posted by Tom at 7:00 AM | Comments (2) | TrackBack

April 14, 2010

What is the Job of a Supreme Court Justice?

Wesley Pruden sums up what I've been thinking about the role of a Supreme Court Justice

Chance for 41 votes and a spine
The Washington Times
by Wesley Pruden
April 13, 2010

President Obama probably isn't looking for another "wise Latina" to put on the Supreme Court to replace John Paul Stevens, but he's apparently looking for a rabble-rouser. He promised on his return from Prague that he will nominate someone who knows "that in a democracy powerful interests must not be allowed to drown out the voices of ordinary citizens."

Ordinarily, this sort of boiler-plate civics-lesson blah-blah is easily dismissed as a politician's instinctive blather, but this is community-activism writ large, reflecting what Barack Obama actually believes and wants to impose on the court if he means what he says.

The voices of ordinary citizens are important, and it's important to make sure their voices aren't "drowned out" by "powerful interests," but once upon a time that was not the job of judges. The job description for a Supreme Court justice was about allegiance and dedication to the Constitution, which would take care of the citizens, ordinary and otherwise. A justice of the Supreme Court understood that he was to look to the law and leave community organizing to someone like Barack Obama.

Alexander Hamilton thought "the judiciary will always be the least dangerous institution to the Constitution" because it has neither "the sword nor the purse." He never imagined that judges could, or would want to, steal from Congress the power and authority to write the nation's laws. Robert Yates, the chief justice of the New York Supreme Court, tried to warn the constitutional convention of 1787 of what the U.S. Supreme Court might come to because "a court of justice" had never been invested "with such immense powers, and yet placed in a situation so little responsible." The Supreme Court, he warned, could "extend the limits of the general government gradually ... and melt down the states into one entire government for every purpose."

And so it came to pass. The states -- with Congress going happily along -- have been "melted down" so that presidents with a majority can now expect his senators, whose first allegiance is to party and partisanship, to rubber-stamp whomever he chooses. Some Republicans promise a rousing opposition to Mr. Obama's nominee if he (or more likely she) is a nominee outside the "mainstream." But more likely the Senate, a weak and skulking lot of badgers and hedgers, will indulge their usual appetite for debate and discussion, which is to say, none at all. Orrin Hatch of Utah, ever eager to argue that he and his fellows aren't quite as bad as everyone thinks they are, set the tone for the loyal opposition with his hint that he might endorse Hillary Clinton, if the president is tempted to use the court as the town dump, as presidents before him have done to rid themselves of ambitious allies.

With 59 sure votes, the Democrats could confirm a melancholy Dane, an imam or a Hottentot if the president insists, but with 41 votes, a spine and the threat of a filibuster the Republicans could make the debate over the nominee a teaching moment, particularly with the November elections casting a dark and deepening shadow over the proceedings. The nomination of Sonia Sotomayor, the "wise Latina," ultimately succeeded, but the debate unfolded as the teaching moment the conservatives intended. They can repeat this modest success again.

The Republicans in the Senate will be tempted to resign themselves to contributing polite argument and then polite applause, to sit back in the warm embrace of self-satisfaction for the job they imagine they have done on the president, his agenda and his party over the past year. The polls show the president's approval ratings continuing the slide; the passage of health care "reform" has only accelerated the slide. The Republican pols imagine they did it, that all they have to do now is coast toward November and reward.

But the unraveling of the Obama myth is the refining work of reality, which is a harsh teacher who grades on a steep curve. The Tea Party protests, much maligned by polite and prissy folk, have turned the nation's politics upside down and there's scant sign that anything will turn them aright again. The meek and mild Republican strategists have been neutered by the accusation that theirs has become "the party of No." Indeed it has, and for one brief, shining moment it has the old politics on the run. This is no time to go wobbly.

Posted by Tom at 7:13 AM | Comments (1) | TrackBack

April 10, 2010

But Is It Constitutional?

All three are disturbing, but the first is the worst.

Congressman Phil Hare (D-IL):

Congressman Bart Stupak (D-MI):

Congressman Frank LoBiondo (R-NJ)

One, not a single one of these congressmen has the foggiest notion of what is actually in the Constitution.

Two, none of them care.

Congressman Phil Hare blatantly says "I Don't Worry About the Constitution'

Congressman Bart Stupak (D-MI) thinks "life, liberty, and the pursuit of happiness" is in the Constitution when it is in the Declaration of Independence

Congressman Frank LoBiondo confuses Article 1 Section 1 with the First Amendment

This is disgraceful. The current attitude is "if we can pass a bill it must be constitutional."

Er, no.

Does The Constitution Matter?

Does the Constitution matter as anything more than a schedule for holding elections? We're all concerned with the Bill of Rights, especially the First, Second, Fourth, and Fifth Amendments, and we talk about them all of the time.

But what about the "welfare clause", which states that

Section. 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Or the "interstate commerce" clause

Article I, Section 8, Clause 3. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Or, finally, the "necessary and proper" clause

Article I, Section 8, Clause 18. The Congress shall have Power ...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

For that matter, what about the 9th and 10th Amendments

Amendment IX - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The truth is that to most of our politicians, both Republican and Democrat, none of this matters a whit. They trot out the Eighth Amendment when they want to ban the death penalty, or the Second when they want to defend our gun rights. The First, Fourth, and Fifth get a lot of attention too. Otherwise, a dispassionate observer can be excused for thinking that our government document provides little more than a schedule for holding elections.

This said, it is true that liberals, progressives, Democrats, whatever term you want to use, are the most blatant in their distain for using the Constitution as any sort of guide as to what laws Congress can or cannot pass. It is they who have twisted the interstate commerce clause out of all recognition, and why buy into a theory of a "living constitution" that essentially says "we're going to make it up as we go along."

If liberals want to bring up the Patriot Act or some such, fine, I'll trade you a Patriot Act for your health care legislation. I'll make those trades all day.

Progressives tried and failed to get FDR's Second Bill of Rights incorporated into the Constitution, they just decided to achieve the same set of objectives through legislative fiat and hope that they could get enough sympathetic justices on the bench who would approve. We've seen the results in everything from Roe v Wade to our current health care legislation.

Which brings us to Virginia's Attorney General Ken Cuccinelli and Delegate Bob Marshall

Defenders of the Constitution

Many attorney generals around the U.S. (15 by last count) have filed suit against certain provisions in the Democrat health care bill. Since I live in Virginia, I'm going to concentrate there.

Former state senator Ken Cuccinelli was elected Attorney General last November, and wasted no time in setting forth a Constitutionalist agenda. He explained his lawsuit against Obama Care in an article in National Review yesterday:

There are very good reasons that the federal government has never, in the last 221 years, used the Commerce Clause of the Constitution as a vehicle for requiring citizens to purchase goods or services from other citizens.

The first is textual. Article I, Section 8 of the Constitution provides that "the Congress shall have Power . . . To regulate Commerce with Foreign Nations, and among the several States." Although there have been disputes about just how far this should reach into commerce that is entirely intrastate, until now, it has been recognized that this constitutional provision deals with regulation of commerce -- that is, with the use of law to impose reason and order on the voluntary commercial actions of citizens, as well as on activities that substantially affect commerce. An individual mandate to purchase health insurance is not regulation in that sense.

Another good reason this has not been done before is that it turns the Commerce Clause into an alternative, off-books funding mechanism. According to the "findings" section of the law itself, the mandate achieves economies of scale, but in reality, it achieves income redistribution. The law caps the amount that insurance companies can charge based on age, and forbids them to exclude those with pre-existing conditions. As such, the young and healthy people the law forces to buy insurance are overcharged for the purpose of subsidizing the old and those with pre-existing conditions.

Fortunately, Virginia's governor and legislature acted decisively -- and in a bipartisan fashion -- to adopt Virginia's new anti-mandate law, the Health Care Freedom Act. The law states that in Virginia, citizens cannot be compelled to purchase health insurance against their will. It is in direct conflict with the federal health-care bill, and we have filed a lawsuit to defend it.

AG Cuccinelli discusses his lawsuit and how if Virginia loses it will mean the end of federalism in the United States

Also see this Q & A about the lawsuit on the website of the Attorney General.

Virginia Delegate Bob Marshall (R-VA-13) is the one who wrote and introduced the legislation AG Cuccinelli referred to above: HB10, Virginia Healthcare Freedom Act, which bans a mandatory federal health insurance mandate. The act was passed by the legislature with large bipartisan supportand signed into law by Governor McDonnell on March 24.

If you actually watch the video you'll learn that HB10 is not about '"nullification," so let's not have any silly comments comparing Bob Marshall to John C Calhoun or some such.

HB10: Virginia Healthcare Freedom Act

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 38.2-3430.1:1 as follows:

ยง 38.2-3430.1:1. Health insurance coverage not required.

No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage. No provision of this title shall render a resident of this Commonwealth liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage. This section shall not apply to individuals voluntarily applying for coverage under a state-administered program pursuant to Title XIX or Title XXI of the Social Security Act.

The bottom line is that it's not the government's job to provide you with health insurance. And it sure can't force you to buy a policy. Get over it.

We're not going to repeal all of the horrendous Obama-Pelosi-Reid-Care bill through lawsuits alone. In the end we've got to elect true conservatives to both the Congress and White House. But perhaps we can get rid of some of it's more onerous regulations through lawsuits, and at the very least we can get this country talking about the Constitution once again. It is more than a schedule for holding elections, it does limit the power of the federal government, and there is a growing consensus on these matters.

Posted by Tom at 12:00 PM | Comments (1) | TrackBack

June 26, 2008

District of Columbia v. Heller - A Victory for Civil Rights

That's right, a victory for civil rights. I know that most liberals don't see gun rights as having anything to do with civil rights. They mostly see guns as "scary" things, and the idea that individuals should have them is a relic of a bygone age. In most discussions about the Bill of Rights, the Second Amendment is either ignored, or interpreted in weird and bizarre ways.

The most bizarre of these is the notion that the purpose of the Second Amendment is to grant the states the right to establish their own armies, which is today the National Guard. The right to bear arms is a "collective" right, not one held by individuals. This despite that no one doubts that the rest of the Bill or Rights applies to individuals.

Today's decision by the U.S. Supreme Court in District of Columbia v. Heller changed all that. In a 5-4 decision, the court ruled that it was in fact an individual right. It also struck down the District of Columbia's handgun ban as unconstitutional, as well as the D.C. provision that all long guns be kept disassembled and with a trigger lock in place. There was more,but that's the essence.

This is very good news. All in all, I rate the decision as 80% positive.

Here's the Court's syllabus of the decision, as posted by Ed Whelen over at Bench Memos over at NRO

(a) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense at home.

(b) The Second Amendment right is not unlimited. The Court's opinion should not cast doubt on concealed-weapons prohibitions, laws barring possession of firearms by felons and the mentally ill, laws barring firearms in sensitive places like schools and government buildings, and laws imposing conditions on commercial sale of arms.

(c) D.C.'s handgun ban and trigger-lock requirement violate the Second Amendment. The total ban on handgun possession prohibits an entire class of arms that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any standard of scrutiny, that ban falls. The trigger-lock requirement makes self-defense impossible. D.C. may use a licensing scheme.

The decision can be downloaded from the SCOTUSblog here.

Ed Whelen has much more information and commentary on the decision here, and Tom Goldstein ( has a must-read post here. More from the SCOTUSblog here, here, and here.

I'm not a lawyer, nor do I play on on TV. Here then are some observations from an NRA member who believes strongly in the individual right to own firearms:

The Good News

Justice Scalia, writing for the majority, says outright that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense at home." This in and of itself is a huge victory.

Scalia also knocks down the notion that the Second Amendment was meant to protect the "right" of the states to have their own militias, ie National Guard.

Also, as mentioned above, the court declared that "D.C.'s ban on handgun possession violates the Second Amendment." and that "The "inherent right of self-defense has been central to the Second Amendment right." This last one is big, because the anti-gunners want us to rely on the government for protection.

And lastly, the total ban on handguns was struck down: "The handgun ban amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose....banning from the home 'the most preferred firearm in the nation to 'keep' and use for protection of one's home and family,' would fail constitutional muster."" Take that, you liberal anti-gunners!

The Bad News

While a victory is a victory, I wish it had been by a lot more than 5-4. That 4 justices see the Second Amendment as a "collective" right is disturbing.

The decision left the door open to gun bans beyond automatic weapons ("machine guns" for you non-gun types). "We do not cast doubt on concealed-weapons prohibitions...the sorts of weapons protected are the sorts of small arms that were lawfully possessed at home at the time of the Second Amendment's ratification, not those most useful in military service today, so "M-16 rifles and the like" may be banned"

So there's still going to be much fighting in legislatures. The anti-gunners can still ban "scary" guns.

Finally, the "licensing scheme" business is troubling. The court said that "Respondent conceded at oral argument that he does not 'have a problem with . . . licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.'" which seems to mean that jurisdictions may require a license to own a firearm, but can't be used in a manner to as to create a de facto firearms ban. This, too, opens the door to many court cases.

The Dangers

A change of one justice and a 5-4 decision is reversed. For all the liberals talk about stare decisis with regard to Roe v. Wade, you can bet you'll never hear the term if they think they can reverse this decision.

The bottom line is that a president Obama will appoint liberals to the court who will want to overturn today's decision, and McCain will appoint conservatives who will uphold it. The choice couldn't be clearer.


I've noticed around the Internet that some on the left are decrying this as an "activist" decision, and thus conservatives are hypocrites. I'm not sure if the people making this argument really believe what they are saying of whether they're being disingenuous, but I'll take it on.

No serious person on the right believes that the Supreme Court should not strike down unconstitutional laws, as long as the reasoning is solidly based on what the Constitution actually says, and what the founders (or those who wrote the various amendments) intended. What we object to is "making it up as you go along", ie rulings that are social engineering disguised as constitutional law. Whenever someone starts talking about a "living Constitution" or "penumbras", you know they're making it up to suit their political agendas.

So when Senator Obama said during the Roberts confirmation hearings that

Both a [conservative Justice Antonin] Scalia and a Ginsburg will arrive at the same place most of the time. What matters at the Supreme Court is those 5% of cases that are truly difficult. In those cases, adherence to precedent and rules of construction will only get you through 25 miles of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy.

In those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

and during a town hall meeting

What I really believe is that the Supreme Court has to be first and foremost thinking about and looking out for those who are vulnerable. People who are minorities, people who have historically been discriminated against. People who are poor. People who have been cheated. People who are being taken advantage of. People who have unpopular opinions. People who are outsiders.

and to CNN's Wolf Blitzer

...what I do want is a judge who's sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being -- from being dealt with sometimes unfairly, that the courts become a refuge for judges.

That's been its historic role. That was its role in Brown vs. Board of Education. know you're dealing with someone who sees the Supreme Court as a second legislature, who's purpose is to enact whatever laws the Democrats can't get through the regular legislature. And bty, he's wrong about Brown v Board of Education. Nothing other than the plain reading of Section One the Fourteenth Amendment was needed to decide that case.

Contrast this with Senator John McCain, who says he is a "Strict Constructionist" on his campaign website

John McCain believes that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, John McCain will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.

As I said, the choice couldn't be clearer. You have Senator Obama, who wants to use the courts as a second legislature, and Senator McCain, who wants the courts to make rulings based on the law.

Update II Sunday June 29

This letter to the editor today in The Washington Times exposes the liberal mindset perfectly:

The Supreme Court's decision in District of Columbia v. Heller ("The gun ban ends," Editorial, Friday). leaves me with a disturbing realization that our society is strangely wedded to words written in a profoundly different era. While your editorial praises the importance of this ruling on the District's gun ban and the protection of the rights of its citizens, Associate Justice Antonin Scalia's majority opinion was not about what is right, nor about what is smart, nor about the best interests of the District. Justice Scalia's grammar lesson on the relationship between prefatory clauses and objective clauses is hardly worthy of the sheer importance of such landmark decisions for our society. The District of Columbia and the United States do not need a long and winding recitation of the tyrannies of King George III that led to the formation of militias.

Were Justice Scalia and the others in the majority to have argued why the Second Amendment, as interpreted, is relevant today, this decision might not seem so anachronistic. On the contrary, Associate Justice John Paul Stevens' dissenting opinion smartly ignores such irrelevant history lessons and argues with the realities of the present era in mind. We need a justice system that lives in the 21st century, not one beholden to the myth that words written in 1791 about men carrying muskets have any bearing today.


If you don't like a law, just have some judge declare it irrelevant and put something different in its place. Those legislatures and referrendums can be so pesky!

Posted by Tom at 9:30 PM | Comments (2) | TrackBack