Contempt of Constitution: The 5-4 Heller Decision
Will Malven
6/26/2008
Al-riiight! [fist pump] Yee-hah! Victory at last! Woo-hah! Celebrate the power!
Okay, back to reality.
The United States Supreme Court, that august body "assigned" the highest responsibility of all judicial authorities, to determine what is or is not within the bounds of our Constitution, made a decision that the right to keep and bear arms, as laid out in our Bill of Rights, is an individual right; something that should have been intuitively obvious to any casual reader of the Constitution without the need of reflection.
So what’s wrong? They did so along partisan philosophical lines.
Imagine that, the “right to keep and bear arms” described in the Bill of Rights as…well…”the right to keep and bear arms,” being interpreted as an individual right.
Gee guys (and gal), ya think so? My, how clever you are. What an original concept, reading the Constitution of the United States…as written. What will they think of next?
For some inexplicable reason, there was a collective sigh of relief and celebration of this narrow vote as a victory for those who believe in that right of the individual law abiding citizen to keep and bear arms…in other words those who actually believe the Constitution to be primary and to be the fundamental basis of all of our laws…as our founding fathers intended.
This was not a victory ladies and gentlemen; this was an escape (and a narrow one at that). It was, to quote Lord Wellington following his victory at Waterloo:
Being neither fish nor fowl, I find this decision both gratifying and terrifying, gratifying in that it proves at least five of the justices on the Supreme Court can read, terrifying in that such a fundamental and inherent right, as are all rights protected by the Bill of Rights, should be decided under the hot passion philosophical and political opinion rather than the cold reason of constitutional interpretation by so many of our Supreme Court Justices.
It is horrifying that five of our nine justices (I include Kennedy here because his decisions are as inconstant as the wind) are so willing to include their own philosophical biases when making a decision that is so cut and dried as to the original intent of the framers of our constitution.
In the ruling, Justice Scalia says that laws that restrict access or possession of firearms, such as permitting fall within the constitution “as long as they are not arbitrary or capricious,” yet every vote by Justice Kennedy seems “arbitrary and capricious.”
For those who view the Heller decision as a “victory,” I will remind them that “stare decisis” as an “immutable” principle, or even a convenient excuse for avoiding changing prior rulings, is only considered so by those on the Left when the Court’s decisions agree with their own position, otherwise it is simply a vague and nebulous concept to be given cursory consideration before pressing forward with their Leftist agenda. Only honest jurists, those who believe in the concept of “original intent,” ever defer to stare decisis after careful consideration.
With the appointment of one more justice holding the (historically indefensible) belief that the constitution is a “living document” and that decisions should be made, “reflective of today’s evolving society” and the most recent public opinion polls, Heller can (and likely will) be overturned at the first opportunity if the American people relax their vigilance for even a moment.
Those on the Left have a cavalier contempt for the Constitution and for the concept of “original intent” when called upon to interpret the constitution, preferring instead a sort of “sense of the nation and society” basis for their interpretation. The fallacy of this view becomes readily apparent if closely examined.
If nothing within the Constitution of the United States is fixed in stone, if everything within the Constitution is impermanent and it is a “living, breathing document, then no aspect of our government or the way we choose our leaders can be considered sacrosanct.
If enough justices believe the people should not be able to elect their own government, who cares what the Constitution says? After all, it is a “living breathing document.”
If the original intent of our founding fathers, as made known in their concurrent writings doesn’t pertain or inform as to how the Second Amendment is to be enforced, then no right, is safe, no part of our Constitution is protected from the political whims of whoever sits in the majority of our Supreme Court.
In such a case, our Republic ceases to be a Republic and becomes an oligarchy in which the Courts, not the people or the democratically elected representatives of the people, rule our lives.
This ominous power of the Supreme Court was never the intent of our Founding Fathers when they wrote, revised, and then approved our Constitution. Their intent was clear and it was set down in Article III, Section 2 of the Constitution.
With that self-assumed power, the Supreme Court went from being the weakest of the three branches of our government, to the most powerful. Since that time and particularly over the past 100 years, the Court has used its self-determined powers to make sweeping changes to our nation and our society, substituting philosophical and ideological opinions for strict interpretation of our laws.
The dangers inherent in such a philosophically driven judiciary has become readily apparent in the court's modern tendency to "legislate from the bench" laws which cover matters rightfully belonging in the domain of the Legislative and/or Executive branches.
It is this tendency of modern jurists to legislate rather than interpret which has turned the Supreme Court from a strict monitor of our constitutional rights, into a political football.
It is also this tendency which emboldens the Supreme Court to thwart the wishes of the electorate as expressed by the various state legislatures and the Congress of the United States, as happened in the previous decision in Kennedy vs. Louisiana.
Justice Kennedy decided that raping a child was not a severe enough crime to warrant the death penalty (I think maybe justice Kennedy confusing his name with that of the appellant and fearing he might be the target of the investigation, cast his vote with the Foul Four just in case), in direct defiance of the will of the people of the State of Louisiana as made known in their passing of the law that was struck down.
Folks, I’m not certain what sort of Justices John McCain would appoint. I’m not terribly sanguine that he will appoint men of good originalist intent, but I do know for certain the kind of Justices Barack Obama would appoint and that alone is reason enough for me to vote for McCain in spite of my misgivings.
Long Live Our America Republic!!!
Uh, oh yeah! Hey Anthony…Anthony Kennedy – sorry -- Mr. Justice Kennedy, the word is “Republic,” not “Oligarchy.”
6/26/2008
“This is the way the world endsIn Heller vs. Washington D.C., The Supreme Court of the United States voted 5-4 (divided along ideological lines) to declare that “the right to keep and bear arms,” as described in the Second Amendment to the Constitution of the United States of America, is an individual right.
This is the way the world ends
This is the way the world ends
Not with a bang but a whimper.”
T.S. Elliot – The Hollow Men
Al-riiight! [fist pump] Yee-hah! Victory at last! Woo-hah! Celebrate the power!
Okay, back to reality.
The United States Supreme Court, that august body "assigned" the highest responsibility of all judicial authorities, to determine what is or is not within the bounds of our Constitution, made a decision that the right to keep and bear arms, as laid out in our Bill of Rights, is an individual right; something that should have been intuitively obvious to any casual reader of the Constitution without the need of reflection.
So what’s wrong? They did so along partisan philosophical lines.
Imagine that, the “right to keep and bear arms” described in the Bill of Rights as…well…”the right to keep and bear arms,” being interpreted as an individual right.
Gee guys (and gal), ya think so? My, how clever you are. What an original concept, reading the Constitution of the United States…as written. What will they think of next?
For some inexplicable reason, there was a collective sigh of relief and celebration of this narrow vote as a victory for those who believe in that right of the individual law abiding citizen to keep and bear arms…in other words those who actually believe the Constitution to be primary and to be the fundamental basis of all of our laws…as our founding fathers intended.
This was not a victory ladies and gentlemen; this was an escape (and a narrow one at that). It was, to quote Lord Wellington following his victory at Waterloo:
“…the nearest run thing you ever saw in your life.”I find little comfort in this decision. Justice Scalia, in writing his opinion, was very eloquent. He was prolific in his use of quotations from our founding fathers’ writings and statements, to provide the historical context for the majority decision, but in the end this decision left the door open to a very broad array of laws restricting and limitations on, what should be, a law abiding citizen’s unfettered right, as long as those restrictions are not “arbitrary and capricious” in their enforcement.
Being neither fish nor fowl, I find this decision both gratifying and terrifying, gratifying in that it proves at least five of the justices on the Supreme Court can read, terrifying in that such a fundamental and inherent right, as are all rights protected by the Bill of Rights, should be decided under the hot passion philosophical and political opinion rather than the cold reason of constitutional interpretation by so many of our Supreme Court Justices.
It is horrifying that five of our nine justices (I include Kennedy here because his decisions are as inconstant as the wind) are so willing to include their own philosophical biases when making a decision that is so cut and dried as to the original intent of the framers of our constitution.
In the ruling, Justice Scalia says that laws that restrict access or possession of firearms, such as permitting fall within the constitution “as long as they are not arbitrary or capricious,” yet every vote by Justice Kennedy seems “arbitrary and capricious.”
For those who view the Heller decision as a “victory,” I will remind them that “stare decisis” as an “immutable” principle, or even a convenient excuse for avoiding changing prior rulings, is only considered so by those on the Left when the Court’s decisions agree with their own position, otherwise it is simply a vague and nebulous concept to be given cursory consideration before pressing forward with their Leftist agenda. Only honest jurists, those who believe in the concept of “original intent,” ever defer to stare decisis after careful consideration.
With the appointment of one more justice holding the (historically indefensible) belief that the constitution is a “living document” and that decisions should be made, “reflective of today’s evolving society” and the most recent public opinion polls, Heller can (and likely will) be overturned at the first opportunity if the American people relax their vigilance for even a moment.
Those on the Left have a cavalier contempt for the Constitution and for the concept of “original intent” when called upon to interpret the constitution, preferring instead a sort of “sense of the nation and society” basis for their interpretation. The fallacy of this view becomes readily apparent if closely examined.
If nothing within the Constitution of the United States is fixed in stone, if everything within the Constitution is impermanent and it is a “living, breathing document, then no aspect of our government or the way we choose our leaders can be considered sacrosanct.
If enough justices believe the people should not be able to elect their own government, who cares what the Constitution says? After all, it is a “living breathing document.”
If the original intent of our founding fathers, as made known in their concurrent writings doesn’t pertain or inform as to how the Second Amendment is to be enforced, then no right, is safe, no part of our Constitution is protected from the political whims of whoever sits in the majority of our Supreme Court.
In such a case, our Republic ceases to be a Republic and becomes an oligarchy in which the Courts, not the people or the democratically elected representatives of the people, rule our lives.
This ominous power of the Supreme Court was never the intent of our Founding Fathers when they wrote, revised, and then approved our Constitution. Their intent was clear and it was set down in Article III, Section 2 of the Constitution.
"Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.These powers were further refined by the Eleventh Amendment, ratified in 1795:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed"
"The Judicial power or the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citzens of another State, or by Citizens or Subjects of any Foreign State."Judicial review, as it is currently practiced was not explicitly granted to the Supreme Court in the Constitution. It was only in making the Marbury v. Madison decision (1803) that the Supreme Court assumed for itself the extra-constitutional powers of judicial review.
With that self-assumed power, the Supreme Court went from being the weakest of the three branches of our government, to the most powerful. Since that time and particularly over the past 100 years, the Court has used its self-determined powers to make sweeping changes to our nation and our society, substituting philosophical and ideological opinions for strict interpretation of our laws.
The dangers inherent in such a philosophically driven judiciary has become readily apparent in the court's modern tendency to "legislate from the bench" laws which cover matters rightfully belonging in the domain of the Legislative and/or Executive branches.
It is this tendency of modern jurists to legislate rather than interpret which has turned the Supreme Court from a strict monitor of our constitutional rights, into a political football.
It is also this tendency which emboldens the Supreme Court to thwart the wishes of the electorate as expressed by the various state legislatures and the Congress of the United States, as happened in the previous decision in Kennedy vs. Louisiana.
Justice Kennedy decided that raping a child was not a severe enough crime to warrant the death penalty (I think maybe justice Kennedy confusing his name with that of the appellant and fearing he might be the target of the investigation, cast his vote with the Foul Four just in case), in direct defiance of the will of the people of the State of Louisiana as made known in their passing of the law that was struck down.
Folks, I’m not certain what sort of Justices John McCain would appoint. I’m not terribly sanguine that he will appoint men of good originalist intent, but I do know for certain the kind of Justices Barack Obama would appoint and that alone is reason enough for me to vote for McCain in spite of my misgivings.
Long Live Our America Republic!!!
Uh, oh yeah! Hey Anthony…Anthony Kennedy – sorry -- Mr. Justice Kennedy, the word is “Republic,” not “Oligarchy.”
What do you think?
To leave your opinion click on the word "COMMENT(S)" below
posted by Will Malven at 1:54 PM
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