Tag Archives: courts

Another Right Answer by a Federal Trial Court

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A federal judge ruled Tuesday that a key provision of the District’s new gun law is probably unconstitutional, ordering DC police to stop requiring individuals to show “good reason” to obtain a permit to carry a firearm on the streets of the nation’s capital.

US District Judge Richard J Leon found that the law violates the “core right of self-defense” granted in the Second Amendment….

And another protection of our individual liberties.  Here’s what the 2nd Amendment says (again, for those of you steady readers of this blog):

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.

Notice that (again…): there’s not a syllable of permission for the Federal government to dictate to us citizens what our purpose in keeping and bearing may be.  The Federal government has no legitimate interest in our purpose, and so any demand that we satisfy the Federal government of our good reason is not merely unconstitutional, it’s dishonestly so.

We citizens do, through our government, restrict convicted felons’ right to keep and bear.  It stops there, though: unless the Federal government can show that a citizen has been convicted of a felony, it cannot further restrict.

Full stop.

Yes, It Does

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The 9th Circuit is going to release, soon, its ruling on a lawsuit that involves California’s claim that it can mandate that firearm manufacturers incorporate safety devices into their firearms.

Anthony Hakl, a lawyer for the state, said the gun-rights groups sought to establish a constitutional right to purchase any handgun of one’s choice from whomever one chooses.

“No such right exists,” he wrote in a September brief.

It’s impressive that a highly trained lawyer should make such a statement with a straight face.  Alternatively, it’s depressing that our law schools do such a poor job of teaching our Constitution.

Here’s the 2nd Amendment on the matter:

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.

Nothing in there about safety mechanisms, nor is there anything that addresses one way or the other the purchase of any handgun of one’s choice from whomever one chooses.

Here’s the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There is no power to limit the sources of our Arms delegated to the United States by our Constitution.  Even the power to require us to license our Arms is a power merely to require us to know how to use—to be safe—with them.  Notice that, too: we have to be safe, not our Arms have to be safe in our stead.  Although it’s true enough that a safe weapon helps us be safe with them, it’s our responsibility to be safe, not the responsibility of an inanimate object.

Now, here’s the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

As noted above, there is no power to limit the sources of our Arms, either delegated or enumerated (a delegation by our ratification).  That’s a power retained by the people.  That’s a power retained by We the People.  The ability to purchase any handgun of one’s choice from whomever we might choose is already long established in our Constitution.

Only a Progressive lawyer would seek to rewrite the Constitution in so blatantly obvious a way.

Maryland’s Anti-Gun Law

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…is back before the 4th Circuit, this time for an en banc hearing, after an earlier 3-judge panel had vacated the prior trial court’s ruling upholding the law.  At issue is Maryland’s

Firearm Safety Act of 2013 banned possession of firearms designated as “assault weapons,” a broad category that includes dozens of types of high-capacity weapons, including the popular AR-15 rifle.  Maryland also banned sales and purchases of ammunition magazines of more than 10 rounds among other provisions.

The Maryland Attorney General, Douglas Gansler (D), is arguing

…AK-47s, the state argues, are “suited, for military-style assaults,” not sport shooting or self-defense….

This is an utterly disingenuous argument that only the Left and its anti-gun nuts could make.  The government has no legitimate interest in the purpose for which an American citizen might choose to keep and bear Arms, only that that right shall not be infringed.

Full stop.

An Objective Court

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Can a court that begins hearing a case while spring-loaded to deference in favor of the Legislative (a law is likely Constitutional, or a law should be read in a manner consistent with it being Constitutional) or the Executive (a Department’s or Agency’s Rule is likely proper) actually hear the case impartially?

There’s an interesting symposium recently held by the Institute for Justice’s Center for Judicial Engagement that bears on the matter; the papers presented are about to be published by the Georgetown Journal of Law and Public Policy.  Professor Randy Barnett, head of Georgetown University’s Center for the Constitution, has a (draft) Foreword that’s available now.  That Foreword is titled Why Popular Sovereignty Requires the Due Process of Law to Challenge “Irrational or Arbitrary” Statutes, and it bears directly on the question I asked above.  Below are a couple of dispositive excerpts [emphases in the original] from the Foreword.  As they say, RTWT.

In other words, before sovereign individuals can justly be deprived of their “life” (by capital punishment), “liberty” (by imprisonment), or “property” (by penalty or fine), the “due process of law” entitles them to a judicial evaluation of whether a statute being enforced against them is within the “just powers” of Congress or state legislatures to enact.  And the “due process of law” requires that such a statute be a “law.”

Notice that.  “Due process of law” is not one phrase, it’s two—”due process” and “of law”—each of which must be considered separately in adjudicating the legitimacy of a law.

And the bit about judicial bias in hearing cases—and it’s not Liberal vs Conservative bias:

Crucially, the “due process of law” requires that the magistrate or judge hearing such a challenge be impartial.  If the judge hearing a challenge simply “presumes” that the legislature is acting properly, or “defers” to the legislature’s own assessment of its powers, then that judge is not acting impartially.  Even worse, if the “presumption” in favor of legislation is irrebuttable, then the person dressed in black robes is not acting as a judge at all.

Either the Court and its judges/Justices are objective, impartial, or they are not.  There is no middle ground.

The answer to the question, then, is a resounding No.  There can be no judicial deference.  Every case before a court must be addressed by that court without regard to the claimed—especially without regard to any presumed—authority of either of the other two branches of government, neither of which are in any way superior to the Third Branch.

It’s long past time our courts, and especially our Supreme Court, lost their deference and resumed their place as a coequal branch of our Federal government.  Of course, that will require Justices like Ruth Bader Ginsburg (the Constitution is a living document and requires constant judicial reinterpretation to “update” it) and Sonya Sotomayor (the empathetically wise Latina) to be replaced with properly textualist (or originalist, but that takes an increasing skill at mind reading as the origin recedes into the past) judges.

Update: Bad misspelling, bad.  [sigh]

A State Appeals Court Missed the Point

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Recall the California case, Vergara v California, in which nine students and the nonprofit advocacy group Students Matter, sued the State of California, arguing that the State’s tenure laws and its firing and layoff policies made it too hard to fire bad teachers, thereby denying students a decent education.  At trial, the students won, and the laws were struck as unconstitutional.  Naturally, teachers unions—California Teachers Association and California Federation of Teachers—anxious to protect its tenure perks, appealed.

Last Thursday, a State appellate court

said the plaintiffs had not successfully proven that some students were indeed getting an inferior education because of job protection provisions.

The appellate court wrote, with a straight face,

Although the statutes may lead to the hiring and retention of more ineffective teachers than a hypothetical alternative system would, the statutes do not address the assignment of teachers.  Instead, administrators—not the statutes—ultimately determine where teachers within a district are assigned to teach.

What the appellate court carefully ignored is that it doesn’t matter where bad teachers are assigned to teach.  The statutes in question require that they be assigned somewhere, to inflict their incompetence on unfortunate students somewhere.

That was the point of the suit: the statutes…lead to the hiring and retention of more ineffective teachers….

Score another victory of union prerogative over the welfare of our children.