From the Ballot to the Bullet
Due to the advanced age and lengthy service of many of the Associate Justices of the U.S. Supreme Court, it is likely that our next president will make one or more nominations to the bench during his term. Currently, Justice John Paul Stevens is 88 years old and five other justices are age 69 or over: Justice Ruth Bader Ginsberg (75), Justice Anthony Kennedy (72), Justice Antonin Scalia (72), Justice Stephen Breyer (70) and Justice David Souter (69). Republican presidential candidate John McCain has been clear about how he would act if elected, stating that Chief Justice Roberts and Justice Alito--both nominees of the Bush administration--"would serve as the model for my own nominees."
A July 8-13 Quinnipiac poll found that only one in three Americans think that the highest court in the land is moving in the right direction, however. This finding is not unexpected, as the Roberts Court has produced increasingly reckless and partisan opinions.
The recent District of Columbia v. Heller decision is a prime example. In the 5-4 ruling, the Court decided that the District of Columbia's ban on private handgun ownership violated the Second Amendment. The majority opinion also explicitly endorsed an individual right to bear arms outside of service in "a well regulated Militia" -- a position virtually without precedent at the federal appellate court level prior to the Heller case.
A cursory reading of the Heller decision may lead one to believe that it articulates a mainstream position on guns in the country. After all -- whether I like it or not -- the proposition that the Second Amendment protects an individual right to bear arms outside of service in a militia has gained broad favor with the American public in recent years.
Upon closer reading, however, the majority opinion drafted by Justice Scalia goes far beyond simply asserting an individual right to own a firearm in the home for self defense against common criminals. Incredibly, he also endorsed an individual right to commit acts of violence against a "tyrannical" federal government which, if history is any lesson, most Americans would find appalling.
In the ruling, Justice Scalia wrote: "If...the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia...if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment's guarantee -- it does not assure the existence of a 'citizens' militia' as a safeguard against tyranny." Later in the opinion, Justice Scalia mused that while common weaponry owned by private citizens may be no match for the firepower of the U.S. military, the Second Amendment gives every citizen a right to take their best shot at our government, both literally and figuratively ("Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.").
In Article 1, Section 8 of the U.S. Constitution, our Founders clearly stated that one of the chief missions of the state militias was to "suppress insurrections." The Roberts Court has taken the Founders' carefully articulated response to acts of internal violence such as Shay's Rebellion and turned it on its head, arguing that the Second Amendment functions as a tool to foment armed insurrection against the federal government. The Heller decision even ignored the explicit ruling in Presser v. Illinois (1886), where the Supreme Court found that no citizen group or militia was entitled to bear arms and organize itself militarily independent of an act of Congress or law of the State.
Like other pieces of insurrectionist writing, Justice Scalia's majority opinion fails to resolve a number of critical questions related to this theorized "right." Does he actually believe that an individual has a right to decide when armed resistance against the U.S. government is justified (a la Timothy McVeigh)? What criteria should such a decision be based upon? Moreover, didn't America's Civil War forever repudiate the notion that there is a constitutional right to insurrection? As Abraham Lincoln famously wrote in a letter to James C. Conkling: "Among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such an appeal are sure to lose their case, and pay the cost." Lincoln also stated in his first inaugural address: "It is safe to assert that no government proper, ever had a provision in its organic law for its own termination."
By ignoring these important historical lessons, Justice Scalia has left his opinion open to radical interpretation and invited would-be-insurrectionists to draw their own conclusions about his intent. This is an incredibly dangerous precedent which suggests that the Roberts Court might not just be moving in the wrong direction, but in a direction that presents a direct threat to the rule of law and our very democracy.
Taking into consideration Senator McCain's lavish praise for Justices Alito and Roberts as ideal Supreme Court justices, it is likely that if elected he would nominate right-wing ideologues to the Court who embrace the insurrectionist idea. His selection of Alaska Governor Sarah Palin -- who recently told the secessionist/insurrectionist Alaskan Independence Party to "keep up the good work" in a videotaped greeting for their 2008 annual conference -- as a vice presidential candidate is also worrisome. These are factors well worth considering this election season.
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I have to say that I was more than a little surprised to see you quoting President Lincoln, Josh--he who said, "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or exercise their revolutionary right to overthrow it."
http://www
"The majority opinion also explicitly endorsed an individual right to bear arms outside of service in "a well regulated Militia" -- a position virtually without precedent at the federal appellate court level prior to the Heller case. "
Excuse me?
Josh, if you had bothered to CHECK, you would have found that prior to heller there is a HUGE precedent both at the appellate level and even the USSC level supporting the individual right reading.
"Incredibly, he also endorsed an individual right to commit acts of violence against a "tyrannical" federal government which, if history is any lesson, most Americans would find appalling.
Gee, maybe he actually READ the framer's intent. Too bad you did not, Josh.
I think we would all like some concrete examples of this "HUGE precedent" you so casually mention. Simply making a statement with no backing does not an intelligent reply make.
As an example that might surprise you, Dred Scott lost at SCOTUS because Justice Taney (a pro slavery southerner) acknowledged that if African Americans were full citizens--they would have an INDIVIDUAL RIGHT TO KEEP AND BEAR ARMS.
About 38 of the 40 Supreme Court decisions which mention, quote in part or in full, or otherwise refer to the Second Amendment/right to arms support an individual right reading.
On the Circuit Court level, the opinions have been split nearly evenly.
Here is an example:
"It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. But of course this Court has never accepted that view." US Supreme Court, 1992
One concept that is in Heller that Horwitz is ignoring is that there is an individual right to possess firearms in common use for LAWFUL PURPOSES--which tells me that unless a government starts to act like Stalin's, Mugabe's, Pol Pot's (where the government itself is acting in an unlawful manner)--i
The meaning of the Second Amendment becomes quite clear if one removes the emotional "gun" issue. Let's re-state the 2nd in another context:
A well educated electorate, being necessary for the security of a free state, the right of the people to keep and read books, shall not be infringed.
If this were the law, would only educated people have the right to keep books? Or, would only the voting electorate be allowed to read? Of course not. All the people would have the right to keep and read books, and the state would benefit by having a more educated electorate.
There is NO requirement to be a member of a Militia to have the RIGHT to keep and bear arms. However, the more people who DO, the better the security of the state.
But by substituting words you are creating an entirely new meaning. Replacing what words you don't want isn't a way to garner further meaning from the Second Amendment, it only serves to distort it.
An individual right to keep and bear arms has been part of the wording since day 1--if you don't like it or do not approve--tough.
The point is that Scalia had the chance to caveat his argument, but instead left it open for the "individual right" to be abused in the form of an individual deciding on their own terms that the overthrow of government is necessary, and then acting on those intentions with violence.
So you're claiming it takes a misreading of Scalia's decision to create such an action or mentality?
Scalia's opinion does no such thing. Again, look at the actual wording. Nowhere in it does he state there is an individual right to armed revolt against the government.
twj--I am far less concerned with the rather remote possibilty of law abiding gun owners abusing the right to keep and bear arms than I am with than I am with leaving fellow gunowners disarmed in the face of criminals, civic unrest during riots or natural disasters(I moved back to Los Angeles county in 1988--so I was here during the Rodney King riots and the Northridge quake), abuses of power by Mayors Nagin (ordered NOPD to steal (unlawful confiscations) firearms from the lawful owners), Fenty (ignoring the Supreme Court in the Heller case by refusing to register Richard Heller's 1911 on the pretense it was a machine gun), and Newsome (supporting every gun ban scheme that San Francisco politicians can dream up).
As Thomas Jefferson said:
"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government
As George Washington said:
"Firearms are second only to the Constitution in importance; they are the people's liberty's teeth."
This quote has never been found in historical documents. It's a good phrase, but one without validation.
What about that previous Jefferson one? I am always amazed how many made up (or taken out of context) founding fathers quotes I see on the internet.
Mr. Horwitz:
Your prejudicial attempt to beguile the second amendment, and the Heller decision, belies your naive view of the Bill of Rights, the citizen's militia, and individual rights.
You have opined before that the Heller decision authorized some sort of "individual right" to commit acts of violence against a tyrannical goverment. Yet Scalia (and historical evidence) discusses this in the context of a citizen's militia - actions taken under the guise of a militia clearly cannot be individual ones. Heller in no way authorizes individual acts of violence against the government, and you know it.
But this flawed logic appears to be your go-to line of reasoning via which you disparage the Heller decision (and by it, the standard view of the second amendment).
Your reliance on Presser, and Cruickshank, etc. is also misguided, because when an incorporation case arrives at the supreme court, these reconstruction-era decisions are almost certain to be found deficient.
Carl in Chicago
PS: The sky is not falling.
Those quotes from Lincoln are the absolute last I'd have used for this topic... Mr. Horwitz, this is a new low even for you. I won't even get into the tastelessness of choosing those specific words relative to Mr. Lincoln's actions.
That aside, I'd like to introduce you to some very light reading.
A) Here is the original: "A well-regulated militia, being necessary to the security of the free state, the right of the people to bear arms, shall not be infringed.
B) Acknowledging that commas were used frequently in the English language of the 1700s, we would read it as this: "A well-regulated militia is necessary to the security of the free state. The right of the people to keep and bear arms shall not be infringed.
C) Moving from micro to macro, we read the format as this: "We find X, and state Y."
What can we deduce from this, Mr. Horwitz? The right to keep and bear arms is not reliant on the finding that the militia is necessary to the security of the free state. How 'bout that?
By the way, here's some equally light reading: 10 USC 311, located here: http://www
Enjoy.
How odd that you can't find the Second regarded as an individual right, especially considering that this idea that it gives the government the right to arm itself is a creation of the last 20 yrs. What you won't seem to bother with is the coverage of the questions within the Constitutional debate.
The Second creates a situation of Mutual Assured Destruction between its armed citizenry and the government, whether you like it or not. If you think you're doing the Left any kind of favor with this nonsense I suggest to you that the most likely tyranny would be from the right at the behest of its plutocratic clients. Thanks, but I'll keep my left wing credentials and my guns and suggest to you that if you want to start some real trouble and also make sure the left never wins an election you just keep right on going there.
The arguement that the government needs the 2nd amendment to arm the military and law enforcement is ludicrous on its face--the power to arm the unit is implicit in the power to organize it.
Horowitz is reading things that are not there:
"If...the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia...
Nowhere in that statement does it say there is an individual right to armed revolution. It just recognizes a citizens militia as "a safeguard against tyranny".
"Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.".
Again, where is an individual right to armed revolution found in this? It's simply not there.
Josh is so obsesed with so-called "insurrectionism" that he sees it everywhere, even when no evidence exists.
Of COURSE the Second Amendment is meant to protect us from the government. After all, throughout history, it has been GOVERNMENTS that have subjugated and enslaved the people. The way the United States government is headed, it looks like history is bound to repeat itself once again !
"Among free men,"
"No Government Proper".
So men who have been enslaved by an unconstitutional gov't have the right to overthrow that tyranny.
We know you don't like it.
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