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GUNS AND JUDGES (Reinhard)
The Oregonian ^ | July 3, 2008 | David Reinhard

Posted on 07/03/2008 9:16:22 AM PDT by jazusamo

Judicial activism. Legislating from the bench. Ideological decision-making by judges.

No sooner had the Supreme Court announced its decision in District of Columbia v. Heller than critics of the 5-4 majority decision and the court's sometimes-conservative majority cried all the above. In holding that the Second Amendment granted individuals the right to keep and bear arms, the court's conservatives -- those champions of judicial modesty and originalism -- were now engaging in judicial activism of their own. Yes, everybody does it, and conservatives are just hypocrites for pretending otherwise.

The Washington Post's E.J. Dionne Jr. was at the head of the pack, with a column that appeared in The Oregonian the day after the decision. Not only was "the judicial right" guilty of this, but the ruling also showed that its talk of deferring to local authorities and elected officials on political decisions and heeding the Constitution's precise words was poppycock.

It's hard to know what accounts for the "They're activists, too" line. Is it confusion or a conscious bid to attack the judicial right's greatest strength -- the solid, winning notion that judges should interpret, not make, law? It certainly cannot be an impartial reading of Justice Antonin Scalia's majority opinion or a full understanding of judicial restraint.

Dionne thinks it's telling -- telling of dishonesty -- that Scalia spent the first 54 pages of the majority opinion explaining away the first 13 words of the Second Amendment ("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"). Dionne seems to have spent more time counting than reading. Would he have found the decision more compelling if Scalia had spent 25, 12 or no pages? Or would he have criticized it for not exploring the contemporaneous meaning and relevance of those (13) prefatory words and the (14) words that follow? Somehow I doubt he would have found any number of pages satisfactory, because he disagrees with the result. But what those 54 pages contain is honest, old-fashioned constitutional analysis -- a look at the text and context of the Second Amendment before, during and after the Framing.

But doesn't the "judicial right" favor local decision-making? Shouldn't elected city officials be able to craft policies (handgun bans) to deal with gun violence in their crime-ridden community? Not if they trample on the Constitution in the process. They cannot abrogate the First Amendment's assembly protections or the Fourth's search-and-seizure safeguards because a community wants to deal with gang violence or any other local problem. A due regard for states and local governments in our federal system and a proper judicial deference to the legislative and executive branches on political questions doesn't allow elected officials or unelected judges to ignore the Bill of Rights, and nobody on Dionne's "judicial right" has ever said otherwise.

Dionne and the Heller minority think the Second Amendment recognizes a collective right tied to "a well-regulated Militia," not any individual's right to keep and bear arms. They cite the 1939 "precedent" of United States v. Miller, which upheld two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce. They think this shows the majority's contempt for precedents anathema to conservatives.

Scalia argues, however, that Miller is no precedent at all for their view. He notes that Miller did not center on the fact that the two individuals were not bearing arms for military purposes. In Miller, the court ruled only that the weapon was not eligible for Second Amendment protection, since sawed-off shotguns had no relationship to the "preservation or efficiency of a well regulated militia." As Scalia wrote for the majority, "Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen." Bingo.

Noting Scalia's 54 pages on the 27 words of the Second Amendment, the page-counting Dionne wrote last week. "Does that reflect an honest attempt to determine the 'original' intention of the framers?"

Actually, it does. Majestically so.

David Reinhard, associate editor, can be reached at 503-221-8152 or davidreinhard@news.oregonian.com


TOPICS: Constitution/Conservatism; Editorial; Government
KEYWORDS: banglist; heller; judiciary; reinhard; scotus; secondamendment; shallnotbeinfringed
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To: wastedyears

Did you understand it was critics of the 5-4 majority decision he is talking about?


61 posted on 07/03/2008 6:08:18 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: Ancesthntr

Easier to pick your shots on semi. Better to keep heads down on full auto.

If I want to keep heads down, I’ll take a Stoner.

If I want to choose my shots, I’ll take an M14.

But that’s just me personally. I’m sure others would want an M16 to do both those jobs.


62 posted on 07/03/2008 6:38:46 PM PDT by wastedyears (Obama is a Texas Post Turtle.)
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To: Ancesthntr

Especially if the price of metals went down, an M4A1 could be had for $600.


63 posted on 07/03/2008 6:52:30 PM PDT by wastedyears (Obama is a Texas Post Turtle.)
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To: mvpel

“Shall not be infringed” covered everything.

Period


64 posted on 07/03/2008 6:59:52 PM PDT by wastedyears (Obama is a Texas Post Turtle.)
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To: mvpel

I need to put together a SHTF pack.

Maxpedition has a few things I like.


65 posted on 07/03/2008 7:24:58 PM PDT by wastedyears (Obama is a Texas Post Turtle.)
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To: jazusamo

I noticed that a few posts in.


66 posted on 07/03/2008 7:30:45 PM PDT by wastedyears (Obama is a Texas Post Turtle.)
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To: wastedyears

Good, that’s happened before with Reinhard’s writing style.


67 posted on 07/03/2008 7:33:18 PM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: willgolfforfood
Not to mention the the Miller decision was just wrong on it's main point - that "the Militia" didn't have a use for a sawed-off shotgun, so Mr. Miller wasn't entitled to own one.

That type of gun was used to devastating effect in the trenches of WW I, to force German soldiers to abandon those trenches, and subject themselves to even more withering firepower when outside the trenches.

Well, maybe not wrong. The Court noted that there was no evidence to show that short barreled shoguns were militia weapons, since no one showed up to represent Miller that day.

68 posted on 07/03/2008 8:08:41 PM PDT by MileHi ( "It's coming down to patriots vs the politicians." - ovrtaxt)
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To: publiusF27
But doesn't it seem that the Supremes at the time of the Miller decision could easily have said that it was well known that short shotguns had military utility?

It's an issue of fairness. Can't have judges just arbitrarily deciding what is and isn't "common knowledge" willy-nilly.

Federal Rules of Evidence 201(b)) permit judges to take judicial notice of two categories of facts:
1. Those that are "generally known within the territorial jurisdiction of the trial court" (e.g. locations of streets within the court's jurisdiction) or
2. Those that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" (e.g. the day of the week on a certain date).

Obviously, the military utility of short-barrel shotguns doesn't fall among those categories. Was it generally known among 22-year-old housewives in Peoria in 1939, for example?

69 posted on 07/03/2008 8:55:21 PM PDT by mvpel (Michael Pelletier)
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To: MileHi

Again, the court did NOT say that Miller was not entitled to own one, they said that without satisfactory evidence presented - in a court of law by a witness subject to cross-examination or a certifiable document subject to inspection by both sides of the case - that it WAS militarily useful, they couldn’t simply say on their own authority that it was militarily useful and thus that Miller was entitled to own one.


70 posted on 07/03/2008 8:58:15 PM PDT by mvpel (Michael Pelletier)
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To: publiusF27
'm thinking I should be able to run down to Mega-Lo-Mart and get an M-16.
Let me know if they have 240's on sale...
71 posted on 07/03/2008 9:03:45 PM PDT by Aut Pax Aut Bellum (I haven't voted "for"anybody since Ronald Reagan, just have voted against...)
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To: mvpel
The problem is, the US Supreme Court can't hear new evidence, it can only review what's been presented in lower courts. That's why they remanded the case for further proceedings.

But they can take judicial notice of commonly known facts (the sun rises in the East). If they choose to do so. In this case they either didn't know or didn't choose to take notice of them.

72 posted on 07/03/2008 10:10:50 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: Old Teufel Hunden
Why did Miller have to be a scumbag criminal and get killed before his case came before the Supreme Court.

Actually he died *after* the case came to the Supreme Court, but just before they released their ruling. He was just a no show, as was his former co-defendant Layton, and their attorney, Suderson, they didn't even file a brief, let alone show up for the oral arguments. Layton later pleaded guilty to transporting the shotgun and got probation from the same judge who had thrown out the original indictment. Surprisingly he managed to serve out the probation successfully.

see Compilation of Miller Documents.

From the above link:

Alas, Jack Miller's end was an unhappy one. The Southwest American reported on April 6, 1939, that Miller's body had been found in the "nearly dry" bed of Little Spencer creek, nine miles southwest of Chelesa, Oklahoma. He had been shot four times with a .38. Miller's ".45 calibre pistol," from which he had fired three shots in his defense, was found near his body. He was forty years old.

Little was reported regarding Frank Layton. He pleaded guilty to the charge of transporting a sawed-off shotgun after the Supreme Court decision and was placed on five year's probation by Judge Heartsill Ragon on January 8, 1940. Layton was discharged from supervision on January 29, 1944.

The decision was released on May 15, 1939, but oral arguments were heard (or more property the government presentation was made) on March 30, 1939, *just before* the government's oral arguments were presented to the Supreme Court.

Notice too that the government made the same appeal to English Common Law, which allowed restrictions of all sorts, rather than the Constitution of the United States, which supersedes the Common law when their is a conflict.

73 posted on 07/03/2008 10:42:15 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: jazusamo

Terrific post. Reinhard is a good thinker and a good writer.

In recent years the Washington Post has shown itself to be more reserved than in the past in its support for socialism and the Democrat party. The paper’s editorials, especially, tend to be written in a professional manner, with care and seriousness. (Just compare the Post to that fading embarrassment, the New York Times.)

I have to believe there are people at the Washington Post who read Dionne’s drivel in their paper and plant their faces in their hands wondering when he will hang it up and go away.


74 posted on 07/03/2008 11:00:48 PM PDT by Lancey Howard
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To: El Gato

You know what’s the scariest thing? If Robert Bork was a Supreme Court justice, the decision would have been 5 - 4 with the liberals winning and Bork providing the winning vote for them.


75 posted on 07/03/2008 11:07:46 PM PDT by Lancey Howard
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To: Ancesthntr

“It will be very telling if a case comes before the USSC with that set of facts as the argument as to why normal law-abiding people should be able to own full auto machine guns, for instance.”

Normal, law-abiding people *are* able to own full auto machine guns. Every time I go to a gun show I pass a table or two with everything from Mac-10s to MP-40s to pintel mounted 50s.


76 posted on 07/03/2008 11:15:36 PM PDT by PLMerite ("Unarmed, one can only flee from Evil. But Evil isn't overcome by fleeing from it." Jeff Cooper)
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To: PLMerite

How do you think it would go over if pamphlets describing the availability of abortions were treated in the same way? 10 fingerprints, permission of the local police chief, background check, $200 tax on transfer, possession of which without any of the above is a felony and conviction of this permanently revokes your right to ever own one again? Sure, the freedom of the press would be fully protected, with some “Reasonable” restrictions.


77 posted on 07/04/2008 6:53:08 AM PDT by coloradan (The US is becoming a banana republic, except without the bananas - or the republic.)
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To: Lancey Howard

I was really happy to see Reinhard rip into Dionne, he derserved to be ripped into. Maybe the powers that be at WaPo will wake up one of these days and tell him to take a hike.


78 posted on 07/04/2008 8:21:39 AM PDT by jazusamo (DefendOurMarines.org | DefendOurTroops.org)
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To: El Gato
"Notice too that the government made the same appeal to English Common Law, which allowed restrictions of all sorts, rather than the Constitution of the United States, which supersedes the Common law when their is a conflict."

I think this is the main reason I hate lawyers. They will make whatever argument is available to win a case. Consequences be damned! I don't mind lawyers using English common law as further supporting something that is written in our Constitution or amendments, but this is beyond the pale to appeal to other countries laws that directly contradict our founding documents.
79 posted on 07/07/2008 4:40:13 AM PDT by Old Teufel Hunden
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