The Truth about the Second Amendment

Stop me if you’ve heard this one before. In 1791, the Founding Fathers placed into the U.S. Constitution a set of ten amendments that we refer to collectively as the “Bill of Rights.” Among them was an innocuous measure designed to protect state militias against federal overreach. Until the 1970s, nobody believed that this meant anything important, or that it was relevant to modern American society. But then, inspired by profit and perfidy, the dastardly National Rifle Association recast the provision’s words and, sua sponte, brainwashed the American public into believing that they possessed an individual right to own firearms.

Most LAWYERS seemingly don’t realize it. The nature of legal education has been purposefully distorted since at least the like of C.C.Langdell took office at Harvard.

Consider a ruling that for a long time was thought unimportant until the modern Court sought to make it the cornerstone of their misconstructions and abuses: Marbury v Madison.

Marshall, in Marbury, presented a very thorough discussion in no small part because of the fact that he was the former Secretary of State who had not put all of the properly attested to commissions for the “Midnight Judges” into the mail, and among these were Marbury’s own commission.

So the opinion may be divided into different sections such as a discussion of if Marbury was entitled to a Writ of Mandamus or that previously, in the matter of benefits for certain veterans, the idea of review of statutes to make sure they are lawful before the Constitution had been already accepted.

It is important to note that Marbury was NOT a mere Mandamus case nor was it the opinion that determined that review of laws was acceptable.

The real meat of the opinion does not even begin until Marshall writes, from memory so I’m not quoting, that he’d presented the plain case for Marbury to receive his writ but the real question was if it could be issued from this Court.

Marbury, you see, was really about something far more important to the Court than a Mandamus, it was about the Jurisdiction of the Court.

Marshall sets forth that the Constitution sets forth the Jurisdiction of the Court, both original and appellate. He notes that responding to a petition for a Writ of Mandamus fell under appellate Jurisdiction and as such Marbury should have first brought his petition to a lower court and then, if denied, he could have appealed to the Court.

The problem was that the Congress had by mere statute tried to assign that jurisdiction to the Court.

It is on that point that review even enters into the picture.

Let me make something very clear first: the opinion of Marbury precisely sets forth the fact that William Marbury was in fact deserving of a Writ of Mandamus from a court with proper jurisdiction. Marbury could have taken that summary to any lower court and got his writ ... that he didn’t is something I’ve long found ... interesting.

But I digress.

In statute the Congress had sought to add to the original jurisdiction of the Court. Jurisdiction = power plain and simple. Marshall declined the extra power because the distribution of Jurisdiction of the Court and any inferior courts had already been accomplished by the Constitution.

It is how any why he did so that is important and should rightly be seen as a bullet to the brain of the “living constitution” and ideas like it ... including “judicial review”.

Got your attention?

You see, among all the powers not enumerated is a power of “judicial review”. Rather Marshall found he had received something from that earlier case that was entirely reasonable, that there was an obligation to prefer the Constitution over statutes, but what had been previously simply accepted needed more, a justification and clarification and that’s what I believe he set out to do with Marbury and that’s why the opinion is in the form it is.

Right off the bat let me point out that an obligation that only arises because of the oath of office taken is not the same as a power to determine the meaning of the Constitution as if the Court were the sovereign able to exercise the original right to make Law.

An obligation is to be faithful to the character of that Law according to the earlier exercise of that original right, which was accomplished in Ratification or subsequent successful Amendment.

Thus Marshal wrote that to require a jurist to take such an oath and then also require him to turn a blind eye to the Law and only see statutes is worse than a solemn mockery.

But so to, I would eagerly add, would be using the obligation to be faithful as a pretext to make up crap as you go along as the modern Court has done.

But there’s more.

You see, after using the oath taken as the basis for the obligation to honor the Constitution as it was agreed to, Marshall expressly noted that officials in other departments take the same oath.

So let me ask you, what is it if not worse than a solemn mockery to require a President or Congress, or indeed any American, to close their eyes to the Constitution and see only the opinions of the Court?

There is no “judicial review”, only “review”. It is not a power, it is an obligation. As such it can only lawfully be used destructively against objects contrary to the Constitution and it is not fit to find any novelty lawful as the modern Court has done, it is not a substitute for an amendment process.

The last third of Marbury v. Madison:

The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised. The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited [p177] and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. [p178] So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection. The judicial power of the United States is extended to all cases arising under the Constitution. [p179] Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the Constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the law? The Constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve? "No person," says the Constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here. the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? From these and many other selections which might be made, it is apparent that the framers of the Constitution [p180] contemplated that instrument as a rule for the government of courts, as well as of the Legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States. Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime. It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.

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