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You Mean You Didn’t See It Coming?

March 10th, 2007

The Washington, D.C. circuit court struck down a 70-year-old ban on guns in the city in a 2-1 decision that completely ignored long-standing Supreme Court rulings on the Second Amendment.

All three judges were Republican appointees, and the dissenting judge criticized the other two for holding their authority as being greater than that of the Supreme Court’s. Not to mention that in order to justify their biased opinion, they had to dredge up a citation from the Dred Scott decision, which listed the right to keep and bear arms among other individual rights. Never mind that Dred Scott was a horribly wrong decision, never mind that it is superseded by U.S. v. Miller and other decisions. They needed something, however feeble, to back up what was essentially a personal desire to establish a radical interpretation of a long-settled issue, so they found it wherever they could. (Talk about legislating from the bench!)

However, the surprising thing is not that two judges voted for it, but rather that one judge didn’t. Although not all Republican-appointed judges are rabid wingnuts, all too many today are. Look at the Bush administration, sending the same ten or so wacko ultra-rightists to be approved by Congress three times (maybe more, I could have lost count there). The idea that there is any emphasis on legal credibility over ideological loyalty to ultraconservatism is little more than a joke. And in the post-9/11 era, all too many of these judges were allowed through by cowed Democrats.

This is just one of the first signs of what is to be an onslaught of political rulings, which will include key decisions in disassembling the Separation of Church and State, weakening civil liberties, and altogether doing away with a host of other currently-protected rights and legal standings that the right wing feels is “legislated from the bench” (translation: decided according to law instead of right-wing political bias). This has been slow in transition, but will be long-lasting and devastating in effect. Even if a Democrat is elected president and Congress can get most or all of his or her judges installed, expect the Bush Effect to last for at least a generation, if not longer.

Welcome to the age of the Clarence Thomas judiciary. And kiss your rights and privacy goodbye.

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  1. Mark
    March 11th, 2007 at 03:14 | #1

    How is allowing a law-abiding citizen the right to own a gun a weakening of civil liberties?

  2. Luis
    March 11th, 2007 at 11:00 | #2

    The DC decision falls into the category of doing away with legal standings that conservatives disagree with (part of the list in the post, check it out). Next up will probably be the Ten Commandments issue, in which Scalia’s ruling, that separation of church and state is null and void, will become law, since O’Connor is no longer on the bench. Christian activists also see the rules against religious displays as a blow to their civil rights, but that doesn’t necessarily make it so.

    You should know also that I do not see the DC ruling as a loss of civil liberties–read my post on gun control and you’ll see what I mean. Instead, I object to it on the basis of the court using bogus legal grounds to essentially overrule the Supreme Court in order to make their own personal biases into standing law. Had these judges ruled on legitimate grounds, using, say, the Ninth Amendment to strike down the gun ban, I would have been OK with it.

    As it stands, however, this is simply an indication of a radical, lawless wave of political plants in the judiciary enforcing their own political agendas into law by hook and by crook, and is a sign of all kinds of legal mayhem down the road.

    [later edit: To be more clear, the point I am trying to make is that you should pay attention to the root causes & trends, and not the specific cases, lest you be misled and taken by surprise later on. Do not think that repeal of a gun ban equals a trend to more civil rights in the future; you’ll be in for a nasty shock.]

  3. Paul
    March 14th, 2007 at 18:39 | #3

    I’m with you- the Republican-appointed judges are going to be bad over the next several years.

    But the debate over the meaning of the Second Amendment is a pathetic joke. It’s plain as day that the intent of the Second is that individuals have the right to own and CARRY guns. Period.

    Now, whether or not we NEED that kind of right codified in the Constitution in today’s day and age, that’s a different discussion… but there just shouldn’t be any debate over the Second Amendment and what it’s supposed to mean.

    Sorry, but it’s clear. To say that where it says “the right of the People to keep and bear Arms shall not be infringed” is somehow limited to the States via the National Guard is ridiculous. It says “the People”, and everywhere ELSE in the Bill of Rights, we know and accept that to mean individuals, not government-run entities.

    First Amendment: “Congress shall make no law… abridging … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Plainly, in this one, we know that “the people” means that individuals have the right to free assembly, protest, and address the government.

    Fourth Amendment: “The right of the people to be secure in their persons…” Again, plain as day- it’s about THE PEOPLE. Individuals.

    My point here is that while I agree with you on the overall TREND in terms of what these judges will do, on this particular issue they got it right. The law up to this point has been wrong and anti-Second-Amendment.

    Paul
    Seattle, WA

  4. Luis
    March 14th, 2007 at 19:56 | #4

    Paul:

    As a matter of what rights the people have, the point is moot, because I see the right as existing in the 9th Amendment. I’m not sure how we might agree or disagree on controls and qualifications on the right pursuant to public safety, but we both agree that the basic right exists.

    As a technical matter of 2nd Amendment interpretation, you are ignoring a huge difference: the 2nd Amendment stands out among the other rights which speak of the “people” in that the 2nd is the only one with a restricting clause, limiting the right of the people to keep and bear arms within the context of an organized militia in order to protect the security of the states.

    The 1st, 4th, 9th, and 10th Amendments (the others which mention a collective “people”) have no such limiting clause.

    Furthermore, a review of the introduction of the 2nd Amendment shows that it was introduced within the context of military service as it existed in those days. For example, a clause allowing for conscientious objection was in most initial drafts of the amendment (“no person religiously scrupulous shall be compelled to bear arms”), demonstrating that this was about military service and not hunting or limited home protection. This is not to say that they did not assume that a personal/collective right did not exist; rather, it is to say that the 2nd Amendment was not about that.

    At that time, military service in the respective states required people to use their personal firearms in the collective defense, and since the founders wanted to protect and preserve each state’s militia’s from what they saw as the potential evil of tyrannical central government and a potential standing federal military, they added the second amendment so the federal government could not render the individual states defenseless by telling the “people” of those states that they could not keep and bear arms. Since the nature of the military has changed so drastically in the intervening 230 years, the 2nd Amendment is not much more than an outdated relic–unless you see the independence of the National Guard, today’s “well-regulated” militia, as being paramount to our freedoms.

    But there is no requirement that the word “people” needs to mean the exact same thing in all amendments when it is qualified in one amendment and not in others.

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