The Supreme Court v. The Court Of Last Resort

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The Supreme Court v. The Court Of Last Resort

Last week, the United States Supreme Court disgraced itself with a ruling about which the only good thing that can be said is that it perhaps could have been worse. The case, Heller v. DC concerned the efforts of a District resident to exercise his inherent, natural right to effective self-defense. The federal government, through its subordinate creation, the local government of the District, has been infringing upon this right in plain violation of the Second Amendment to the United States Constitution, which says that, "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."

This case could have, and should have, been disposed of by any court in the federal judicial hierarchy by way of a simple, two-or-three page observation of some of the overwhelming body of authoritative evidence of the Founders' intent, a brief application of grade-school-level logic, or even just a citation or two from the long-standing Supreme Court jurisprudence on this subject, which had, in the past, contented itself with merely the grade-school-logic alone, viewing the meaning of the plain words of the amendment as so self-evident as to merit no lengthy discussion.

United States Supreme Court Justice Joseph Story, in his 'Commentaries On The Constitution Of The United States' (1833) succinctly summarized the Founders' intent in regard to the Second Amendment:
"The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers [meaning that they are on notice that bad behavior will be punished -PH]; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."
The Supreme Court in its entirety had no difficulty in adhering to the truth about the amendment, either, in the past... In 1875, for instance, in the case of United States v. Cruikshank, the court declares that,
"[The Right to Keep and Bear Arms] is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed;... This is one of the amendments that has no other effect than to restrict the powers of the national government,…". U.S. v. Cruikshank Et Al. 92 U.S. 542 (1875).
Let me repeat that last line: "No other effect than to restrict the powers of the national government". There's that grade-school logic, of which the federal courts used to have a much better command than is the case today.

As the Cruikshank court clearly understands (and only the mendacious could not), "Shall not be infringed" prohibits the party limited thereby from any measure of any kind which has the effect of burdening, hindering, or, in short, affecting in any way the keeping and bearing of any weapon by any person. Interfering in the acquisition of any weapon is implicitly prohibited as well, of course.

Further, the issue of what constitutes "arms" is entirely and self-evidently outside the purview of any organ of the federal government as well. For one thing, the federal government is not granted any authority anywhere to interfere with such individual decisions in any event. More particularly, it is self-evident that determination of what is suitable and sufficient for the disaggregated citizenry to effectively enforce their supremacy over those controlling the apparatus of government at need is not within the competence of those controlling the apparatus of government (or that of judges they appoint)...

By virtue of the prohibition's character, and purpose, it shouldn't be necessary to point out that "unreasonably" has no place in any consideration of the phrase "Shall not be infringed". Indeed, to assume or invoke "unreasonably" in consideration of such a prohibition (as in, "Shall not be unreasonably infringed") is to make the phrase an oxymoron-- a self-contradictory bit of nonsense. It IS necessary to point this out, however, because last week, in ruling in the Heller case, today's Supreme Court saw that word where no one else does.

Ruling for the five-four majority, Justice Antonin Scalia declares that, "Like most rights, the right secured by the Second Amendment is not unlimited," and then proceeds to speak approvingly of various implicitly "reasonable" restrictions the federal government has presumed to embrace over the last 80 years, reassuring everyone that the Heller ruling isn't to be taken as disturbing of any of these long-standing infringements. Scalia's construction is clever, but entirely fallacious, and deliberately so.

The issue in this case is NOT what limits might or might not apply to the right secured by the Second Amendment. The issue is who does and who doesn't get to decide what those limits are. The language of the amendment is unambiguous in denying the federal government any authority in that decision. It's that simple.

What the limits of the right secured by the Second Amendment may be are no more relevant here than they would be if the government of France had sought to impose restrictions on the exercise of the right upon residents of Ohio. Would anyone view the character of the restrictions France proposed as suitable for discussion or debate? I don't think so. France would summarily be told in no uncertain terms that it has no jurisdiction in the matter, period.

The same thing that is true of a French presumption of authority in Ohio is true of a United States presumption of authority as to what constitutes an "infringement" prohibited by the Second Amendment, or the scope of any other prohibition specified in the Constitution. In addition to establishing the structure of the federal government, the United States Constitution, like all proper Constitutions, also establishes both the limits of that government's powers, and the limits of its jurisdiction. Where prohibitions are prescribed therein, jurisdiction has been reserved by the people and denied to anyone else.

In the case of such Constitutional reservations, the government created by, and operating under, the authority of that Constitution cannot even be granted jurisdiction by popular vote-- or by ANY mechanism other than a formal Constitutional amendment removing the prohibition. And even that is not sufficient as to some matters. In the case of something so fundamental to liberty as retaining the uncompromised means of enforcing the people's authority over their servant governments, Samuel Adams, architect of the American revolution rightly observed,
"If men, through fear, fraud, or mistake, should in terms renounce or give up any natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of Almighty God, it is not in the power of man to alienate this gift and voluntarily become a slave."

Unfortunately, as is exemplified in the Supreme Court's casual and generally uncriticized presumptions in the Heller case last week, we in America have been conditioned over the course of the last century to imagine that the federal government has no jurisdictional limits, and instead has some, if not total, authority over EVERYTHING in America. This is not because the federal government DOES have such authority, but simply because it WANTS to have it-- that is, because those who control that government and direct its activities want it to have, or to exercise, such authority, and are willing to behave as though it does for as long as such behavior is tolerated.

More importantly, we have come to imagine over the last hundred years that the federal government has such authority because we as a sovereign people have been asleep at the wheel for all that time. It is not just a matter of our good fortune that the Supreme Court acknowledged the true meaning of the Second Amendment in the Cruikshank case in 1875, it is because the American people still jealously guarded their liberties at that time, and would have abided nothing less from the court.

The key to that jealous and effective regard for the people's rights and the proper place of their governmental creatures lay in a widespread understanding of the words and purposes of the fundamental body of law by which those governments are controlled. That understanding rested in turn on a broad knowledge of history, of logic, and of law.

Today, as we see our liberties and our rights becoming no more than what an overweening government deigns to consider "reasonable", we must regain that knowledge and recover that jealous and informed perspective. If you do not, we inevitably revert to the degraded and shameful status of the mere subjects of a ruling apparatus and those who control it-- the common lot of the ignorant and fearful.

As it happens, this is the very day we celebrate our bold ancestors' declaration of their independence and individual sovereignty-- a declaration that very much called upon the principles and purposes underlying the Second Amendment which today's Supreme Court is so disinclined to acknowledge:
"...when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is [the people's] right, it is their duty, to throw off such Government, and to provide new guards for their future security,"
I hope you will all join me in resolving, on this happy anniversary, to wake up again, stand up again, regain that knowledge and perspective again, and go forward as free men and women fully in charge of our own selves, our own property and our own destiny.
 

hminsky

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So is this article arguing that the Supreme Court has no jurisdiction to decide anything? That means we'd only have two branches of government.
 

Pilgrim

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So is this article arguing that the Supreme Court has no jurisdiction to decide anything? That means we'd only have two branches of government.

No, it's saying that the SC has no right to do anything with regards to the 2a. It has no right to allow ANY restrictions on it....which it did. It states that the 2a simply reaffirms out natural right and the the SC cannot modify that in any way.....which it has.
 

hminsky

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No, it's saying that the SC has no right to do anything with regards to the 2a. It has no right to allow ANY restrictions on it....which it did. It states that the 2a simply reaffirms out natural right and the the SC cannot modify that in any way.....which it has.

That argument would apply to any laws restricting other rights as well.

But there are plenty of other laws which carve out exceptions to those rights; the Supreme Court gets to say which laws are constitutional. It doesn't make any sense to me to say the SC has no say in deciding the constitutionality of laws!
 
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