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Profiles in Ideological Bias: When Law School Deans and Justices Lie

Posted by iusbvision on June 27, 2008

What would you say if someone tried to tell you that the Framers understood that you have a Natural, God given right to freedom of speech, religion, and conscience; that you had freedom from unnecessary search and seizure, BUT BY NO MEANS did the Framers ever intend to enumerate or imply a right to self defense? .. And then proceed to argue that almost nothing in any of the Framers writings indicates otherwise?

Any honest student of American history would say that anyone making such a silly argument may need to see a doctor.

Well guess who made such an argument; Justice Stevens did just that in his dissent in yesterdays Heller decision saying:

Specifically, there is no indication that the Framers of the Amendment intended to enshrine the

common-law right of self-defense in the Constitution.

EXCUSE ME?

You heard it right no right to self defense either enumerated or implied in the constitution and nothing in common law previously indicated that you have any right to defend yourself.

Ok who buys such an argument may I see a share of hands?

Such an argument speaks volumes about how leftist judges treat the power of the state over the sovereignty of the individual.

Of course there are hundreds of pieces of evidence that indicate very directly that the Framers intended that the ownership of small arms in defense of themselves, their liberty, and the state was not just a right, but an obligation of most good citizens. Justice Scalia pointed to dozens of such pieces of evidence in the Heller ruling and the Amici gave hundreds of examples in their briefs to the court. I have perhaps 100 examples of such in my own data archive.

The revisionist history did not stop there. Today’s Los Angeles Times has an op-ed from Erwin Chemerinsky, the UC Irvine Dean of the School of Law:

The Supreme Court’s invalidation of the District of Columbia’s handgun ban powerfully shows that the conservative rhetoric about judicial restraint is a lie. In striking down the law, Justice Antonin Scalia’smajority opinion, joined by the court’s four other most conservative justices, is quite activist in pursuing the conservative political agenda of protecting gun owners.

If the terms “judicial activism” and “judicial restraint” have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions.

Never before had the Supreme Court found that the 2nd Amendment bestows on individuals a right to have guns. In fact, in 1939 (and other occasions), the court rejected this view. In effectively overturning these prior decisions, the court both ignored precedent and invalidated a law adopted by a popularly elected government. http://www.latimes.com/news/printedition/opinion/la-oe-chemerinsky27-2008jun27,0,6464156.story

The 1939 case that Dean Chemerinsky is referring to is US v. Miller. In Miller the court was asked if the prohibition from owning short barreled shotguns in the National Firearms Act was in violation of the Second Amendment.

The court ruling made it clear that historically good citizens not only had a right, but had an obligation as good citizens to maintain infantry small arms in their homes (just as Mr. Heller in this case wanted to keep a firearm in his home).

The Miller ruling shows that citizens have a right to own small arms that have a military purpose. The question decided, and the question put to the court, is whether or not a short barreled shotgun has a military purpose. No one even argued that the Second Amendment does not affirm a right to own military small arms by individuals, indeed the court was not even asked that question. So Chemerinsky’s statement that the court in Miller rejected the Second Amendment view delivered in Heller is not only mistaken, but rather quite the opposite.

If you don’t believe me, go read the decision for yourself as it is in plain English.

http://www.hoboes.com/Politics/Firearms/miller/

If the court in Miller wanted to say that the Second Amendment does not guarantee an individual right to keep and bear arms, but only guarantees a subset of the people ( a militia) to be able to keep arms, then the court would have said that Mr. Miller and his comrades were not members of a militia so the Second Amendment did not apply to them, thus you had no right to own any weapon whatsoever, but the court did not even come close to anything resembling such an argument and anyone who reads the decision can see that plainly.

Indeed the majority of the Supreme Court states just this in yesterday’s opinion:

Miller did not hold that and cannot possibly be read to have held that. [empasis added – CN] The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [shortbarreledshotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added).

“Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right. This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.
Justice Breyer in his dissent pointed to ordinances at the times of the Founders for firearms and ammunition storage to prevent fire hazards as a defense to his notion that the Second Amendment allows any and all local regulation by the local government – even gun bans. Saying that local regulations and the Second Amendment are not inconsistant and this is an example why the DC gun ban would have been perfectly fine according to the Founders. Laughable arguments like this and this joker is on the Supreme Court of the United States…. amazing.
So what is it that possesses people to quite frankly lie through their teeth about a ruling that anyone can plainly look up, read, and understand? It is testimony that for too many people in power, the ends justifies the means and if lying to students, abandoning the public trust given to you and lying about easily proven history to enforce your ideological views is what is needed, than so be it.

I have noticed another tactic as used by the revisionists as well, and that is to deliberately try to confuse quotes from the founders when it comes to references to the organized militia (which could be the National Guard) and the unorganized militia of the people which is often what the founders repeatedly referred to when addressing the arms in civilian hands issue as the whole body of the people. Ironically US Code also defines and distinguishes the difference between the organized and the unorganized militia as well.

Be sure to read my original analysis of Heller here:

https://iusbvision.wordpress.com/2008/06/26/supreme-court-heller-affirmed/

Chuck Norton

Related:

WSJ – Leftist Justices In Denial of History and the Law

Supreme Court Binds Second Amendment to States

 

One Response to “Profiles in Ideological Bias: When Law School Deans and Justices Lie”

  1. […] sure to read Chuck Norton’s post on this. He exposes the thinking and rhetoric of America’s progressives quite well:  So what […]

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