Tag Archives: rights

A Judicial Error Regarding the 2nd Amendment

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A Federal trial judge in Seattle has ruled that it’s OK for the Federal government, in the form of the Bureau of Alcohol, Tobacco, Firearms and Explosives, to ban ammunition originally “designed” for AK-47 rifles.  The ammunition in question, Russian-manufacutered 7N6 armor-piercing rounds had been imported prior to BATF’s ban, to the tune of 100 million rounds, and as the importer, PW Arms Inc noted in its suit—the one in which the trial judge ruled for BATF—none of those rounds had been misused.  PW Arms noted in its suit

In fact, before ATF banned 7N6, this ammunition was used lawfully by sportsmen as rifle ammunition for target shooting.

In 2014, though, BATF decided it didn’t like this and instituted its ban.

The Seattle-based Federal judge screwed this one up badly.  As we all know, a ban on ammunition is a ban on the weapons that use them—which is a violation of our right to keep and bear those Arms.

This is another example, too, of the jeopardy in which our judiciary will be under a Clinton White House and Democratic Party Senate.

Cynical

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The DC Circuit, in a mixed ruling, has said the trial court judge had erred in dismissing a collection of Tea Party suits he said had become “moot” because the IRS had apologized for its misbehavior and had said it had stopped such practices.

Of course, the IRS had said it had stopped—sort of—only conditionally.  DC Circuit Judge David Sentelle, writing for the majority (the ruling can be seen here), noted that the IRS only had suspended the screening “until further notice.”

A violation of right that is “suspended until further notice” has not become the subject of voluntary cessation, with no reasonable expectation of resumption, so as to moot litigation against the violation of rights. Rather, it has at most advised the victim of the violation—”you’re alright for now, but there may be another shoe falling.”

Sentelle took issue with “suspended,” understanding that suspension is not cessation.  He took separate issue with that “until further notice” bit, as noted above.

In fact, too, the IRS had not stopped at all.  As Sentelle noted,

…it is absurd to suggest that the effect of the IRS’s unlawful conduct, which delayed the processing of appellant-plaintiffs’ applications, has been eradicated when two of the appellant-plaintiffs’ applications remain pending.

After how many years are these applications still pending? It’s been two years since the trial court made its erroneous dismissal.

Of course, the trial judge knew these things. Based on his logic, too (even if he had been as ignorant as he seemed to be claiming he was), it would seem he would have dismissed charges against Willie Sutton had that worthy only apologized and averred he’s stopped. No consequence should ensue, this judge would seem to insist, for the banks Sutton had already robbed.

How cynical is that?

These are the trial courts and the IRS that will be heavily impacted by the Presidential elections.

Out of Control

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The Obama administration’s EEOC has loosed its reins.

Wearing a cap to work that has a “Don’t Tread On Me” slogan on it is a racist and EEOC-actionable thing to do.

Because Congress shall make no law…abridging the freedom of speech means whatever this Democratic administration’s Equal Employment Opportunity Commission says it means.

The Hillary Clinton Supreme Court

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I’ll leave aside specifics of Democratic Party Presidential candidate Hillary Clinton’s goals in appointing Supreme Court Justices.  The overriding goal of Clinton is to appoint Justices who meet a series of litmus tests, none having to do with the Justice candidate’s view of the Constitution.  A potential appointee must explicitly agree that Citizens United must be reversed.  A potential appointee must explicitly agree that limits to individual Americans’ right to keep and bear Arms must be subject to further government restrictions—including Government determining what weapons are fit for Americans to have (no “assault” weapons—defined by her Government—for instance).  A potential appointee must explicitly agree that voter ID laws, which protect the sanctity of an American’s vote, are anathema.  A potential appointee must explicitly agree that religious freedom is a matter of government determination with nothing to do with individual conscience.

Clinton’s goal, then, is to turn the Supreme Court away from an impartial judicial institution into one that is explicitly political, and one that will serve Progressive goals.  Regardless of what the Constitution actually says.

It won’t take many Clinton appointments, either, to turn the Court into her completely political institution.  Four of the existing Justices already are political judges rather than judges who uphold the Constitution.  Justices Stephen Breyer and Ruth Bader Ginsburg have said they consider the Constitution to be a living document that lives through “updating” reinterpretations to fit their views of the times—Article V and We the People be damned.  Ginsburg has gone even farther, deliberately entering the political fray and publicly stating her views of the unfitness of one of the current Presidential candidates, thereby prejudicing in advance her decisions on any case in which that President’s administration might become involved.  Justice Sonya Sotomayor has said the Court benefits from her “wise Latina” and empathetic talents—again, a political position and not a legal one.  Justice Elena Kagan has said that a judge’s personal values must guide the judge’s development of her opinion, not solely what the Constitution says—still another political, rather than legal, position.

Elections have consequences, and this one’s will last far longer than just the term of one administration.

A Court Gets One Right

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In a sexual orientation case involving an adjunct professor who claimed she was denied “full time employment and promotions based on sexual orientation,” the 7th Circuit ruled unanimously that her employer can, indeed, do exactly that.  In particular, Title VII, under which the case was brought, does not apply to sexual discrimination in the workplace.

The reason the Court got this one right has little to do with discrimination—and everything to do with it—rather, it’s centered on what the law actually says, and what the judges said about what the law actually says.

…a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry an ‐ other person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.  …  Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard‐working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti‐discrimination statute that includes sexual orientation.

Because the law, Title VII as it’s written, doesn’t address that question.

There’s more [emphasis added]:

…the distinction between gender nonconformity claims and sexual orientation claims has created an odd state of affairs in the law in which Title VII protects gay, lesbian, and bisexual people, but frequently only to the extent that those plaintiffs meet society’s stereotypical norms about how gay men or lesbian women look or act…. By contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms mostly lose their claims for sex discrimination under Title VII, although why this should be true is not entirely clear.

Yet, this [emphasis added]:

[T]he paradox is not our concern. Our task is to interpret Title VII as drafted by Congress, and as we concluded in Ulane, Title VII prohibits discrimination only on the basis of gender.

Regardless of what we might think of the particular ruling—concerning a woman who was denied advancement on the basis of her sexual orientation (assuming, arguendo, that her claim was accurate)—or of other rulings involving actual firings over sexual orientation, this court got this ruling right.  The court is right because it applied the law as it was written, and not as it might have preferred it to have been written or as a government agency (EEOC had sided with the professor) wanted it to have been written.

The court also was right because it didn’t stop there.  The court went on to point out that while the law in question, as it was written, conflicted with other laws—one driving the Supreme Court’s ruling on gay marriages, for instance—the court was powerless to resolve the conflict.  Such a resolution is a political decision, not a judicial one; it’s for the people and their elected representatives to alter the law(s) in directions they see fit; no court can do that.

The court’s ruling can be read here.