Category Archives: Courts

One More Thought on our Second Amendment

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The thought coalesced, finally, on reading a post over at Grim’s Hall, a blog I strongly recommend on GPs.

A problem I’ve had with Bruen from the start, hanging its hat on historical tradition as it does, is that the opinion, thereby, accepts as constitutionally legitimate any weapon regulation, so long as it’s been historically long-standing.

The Second Amendment carries no such caveat or exception, though. Its bar on the government is universal and unequivocal: the right of the people to keep and bear Arms, shall not be infringed. The first attempt to regulate that right should have been ruled unconstitutional. It’s not too late today.

…7th Circuit recently upheld Illinois’ ban, noting that the ubiquitous firearm from 1791 through the mid-19th century was a single-shot muzzleloader. AR-15s with large-capacity magazines, the majority said, are “a far cry from these antecedents.”

This seems to me a patently erroneous argument by the Sages of the Seventh Circuit. The Founders, along with, especially, those members of the first Congress who wrote the Second Amendment, along with the People who ratified it, were no strangers to innovation and to technological advancement. Yet no one in any of the courts that I’ve seen have addressed the premise that with that broad awareness, and against the backdrop of so many of the Continental Army’s and Navy’s large weapons systems employed in the just-concluded Revolutionary War were privately owned, the Amendment was written to be technologically agnostic.

That backdrop, those large weapon systems being privately owned, strikes me as the only valid historical tradition.

Denying Visas

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When a person, whether private or a government official, applies for a visa to come into the United States, the fact of his application clearly means he has not entered our nation; he’s still outside of it.

That brings up Chief Judge (DC District) James Boasberg’s ruling regarding the administration’s denial of visas to foreign officials and other foreign nationals considered responsible for or complicit in suppressing American free speech.

Boasberg ruled that the administration’s reason constituted viewpoint discrimination and so was a First Amendment violation of the applicants’ free speech rights. He dressed up his opinion with this:

The policy [to deny visas to those considered responsible for or complicit in suppressing American free speech], at its core, does not burden all speech about platforms, all research into content moderation, or all advocacy about online harms. It presses its enforcement thumb against one side of the scale: the view that platforms should do more to moderate content, label disinformation, restrict abuse, share data with researchers, or take responsibility for the harms their systems amplify.

The problem with Boasberg’s position is that those folks, being outside our nation, have no US constitutional (or any statutory) rights whatsoever. His argument is, thus, nothing more than a cynically offered non sequitur.

Boasberg’s rationalization is all too typical of the hysterically anti-Trump bias in his rulings.

An Alternative Extinguishment

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Federal District Judge Araceli Martínez-Olguín has ordered Paramount and Warner Bros. Discovery to halt their merger process for two weeks—ostensibly, the judge claimed—to give States challenging the deal more time to see their case through in court. The silliness of that order is in the claim that two whole weeks is enough time for such a complex case to wend its way. Any Federal judge worthy of his black robe is well aware of the implications of such a short time frame. This is nothing more than judicial interference in a business decision.

The States’ argument also is risible. The merger would “extinguish competition” in Hollywood and reduce choices for consumers. This can be rendered irrelevant in a straightforward manner. Paramount and WB should move their operations out of Hollywood, out of California altogether. Then there would be no concern about Hollywood at all. There also would be no reduction in consumer choice from the move.

Likely locations for the two companies include Virginia, New Mexico, Texas, and Alabama, each of which has an environment favorable to making movies and television shows. Any of those environments also would lower the costs of production, which could only enhance consumer choice by making movies and TV shows easier and faster to bring off.

Celebrities and Champions

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Supreme Court Justice Ketanji Brown Jackson apparently insists on being both.

Justice Ketanji Brown Jackson appeared on the cover of the most recent issue of Essence magazine[.]

That prompted a Georgia lawyer to complain that

Supreme Court Justices are not celebrities and should not be treated like celebrities[.]

He’s right, but magazine writers are going write and magazine photographers are going to photograph. The real onus is on Supreme Court Justices to not act like celebrities.

On the other hand, Jackson enthusiastically accepts her label as “the people’s champion.”

Judges and especially Supreme Court Justices, though, cannot legitimately be the people’s champions, that’s the exclusive role of our elected officials in Congress and the White House. The role of judges and Justices is to be the champion of our Constitution and of the statutes before them, and apply both without regard to celebrity.

Radical Reform

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Pennsylvania’s Progressive-Democrat Governor Josh Shapiro wants our judges and Justices to be bound by popular assent instead of being bound by law.

I think we need radical reform that’s actually going to ensure that the voices of the people are heard from, that the voices of the people are represented in the three branches of government. We don’t have that right now.

Shapiro wants to pack the Supreme Court to address that, and Jonathan Turley was properly worried in his piece about Shapiro’s sharp turn to the extreme left with that remark.

I add this to that concern. This is another reason we can’t trust the Progressive-Democratic Party with control of our government. It has nothing to do with patriotism or integrity. It’s that so many Party politicians simply do not understand at all our Federal government or its structure.

Only two of the three branches of our government are intended to represent “the voices of the people,” those are the two political branches, and the granularity of that representation itself varies broadly across their elected roles. The politicians in our Congress’ House of Representatives represent, first, the voices of their district’s constituents, and second the voices of the citizens of our nation, since our Congress has national responsibilities as well as to its members’ districts. The politicians in Congress’ Senate represent, first, the voices of their State’s citizens, and second the voices of the citizens of our nation. The politicians in the White House, the President and Vice President, represent the voices of the citizens of our nation.

The judges and Justices of the third branch, though, represent no citizens’ voices. They represent our Constitution and the statutes that come before them and are bound by oath apply those laws without respect to persons and by the Code of Conduct for United States Judges to do so without fear or favor in order to facilitate the necessary political independence of our Judicial Branch and the judges and Justices within it.

Party politicians demanding that the judiciary represent the voices of the people is their demand for the subordination of judges and Justices to the vagaries of politics at the expense of their binding to law.