THANKS TO PRESIDENT TRUMP
The Return To Constitutionalism Is Hidden In Plain Sight
The Supreme Court has just released two monumental decisions. Predictable responses have ensued from the expected interested parties. And the widely publicized legal analysis goes something like this...
Bruen overturned New York’s century-old Sullivan Law. The Court held that the Second Amendment requires that states must allow law-abiding citizens to carry firearms, with the possible exception of courthouses and other “sensitive” locations. High population density does not make Manhattan a sensitive location. Thus, New York can ban either open or concealed carry, but not both. And New York (and DC, HI, MD, MA, NJ, etc.) cannot demand that a citizen demonstrate “proper cause.” Carrying arms is a right, not a privilege.
Dobbs overturned Roe v Wade. Basically, there is no right to abortion in the Constitution. Never was. It’s an issue for the states to handle.
Beyond these bare declarations of final conclusions lies a cornucopia of incredibly important legal foundations. And those foundations may, once and for all (near future) time, severely restrict the various federal District Courts of Appeals from twisting into pretzels to avoid the plain meaning of the Constitution. The first is a direct slap in the face of the Ninth Circus, the Amber Alert poster child for Missing Legal Reasoning.
Leftist Courts (yes, Justice Roberts, they do exist…) typically do a legal two-step dance to get to the decisions they want. First, (see McDougall v. County of Ventura) they happily admit that the particular law is contrary to the Constitution. Then, contrary to Heller, they adopt a second step that “balances” the interests of the state against the rights of the citizen. This balancing act is infinitely malleable and provides no prior standard for what the state can and cannot do. In short, it becomes a way for tyrants to “pass legal muster.” Bruen shuts this door:
Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.
Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment‘s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.
In plain English, if the Constitution protects a right, that’s the end of the discussion. The only thing a state can do to limit that right must be a limitation that is parallel to one that was in existence at and around the time the rate was ratified in the Constitution. Bruen notes that arms were not allowed into sensitive places like courthouses. Such isolated and carefully identified sensitive places may be similarly restricted.
This has immense implications. For example, the First Amendment guarantees the “free exercise of religion.” At the time of its adoption, the US was a highly religious country. Thus, the proper historical analysis leads to a conclusion that the Amendment guarantees freedom of religion, not freedom from religion.
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| Image: Signing the American Constitution by Henry (or John Henry) Hintermeister. Public domain. |
Thus Carson v. Makin gives us a hint that the Supreme Court is likely to re-establish protections for religious observance. Should another pandemic lead Governor Hair Gel to shutter churches as “non-essential,” a federal challenge should reach the conclusion that the First Amendment protects church services, and that’s the end of the process. Summary judgment for the church!
A deeper dive into the decisions sheds more light on the radical reorientation of the judicial process they represent. Beginning with Heller, the Court began a careful process of examining what the Constitution meant to the people who wrote it. It begins with simple words. “Shall not be infringed” means “shall not be infringed.”
The process then continues into the published arguments for and against the item in question. Opponents of a Bill of Rights once thought that it would limit the number of rights of the citizens. Proponents said that if there was no Bill of Rights, the citizens wouldn’t have any rights.
There was almost no historical support for major restrictions on ownership and carriage of firearms but every state outlawed abortion. And the history of both for centuries before the Bill of Rights simply reinforces these conclusions.
Working through Heller, McDonald, Bruen, and Dobbs, the Court has made it painfully clear that the Constitution must be understood as it was understood by its framers. This is called “Originalism.”
Further, because the Court denied lower courts access to the second stage of legal “balancing of interests” in evaluating the impact of a restriction on Constitutional rights, this is “Textualism.” What the text says about a right in plain language is what it says. No more, and no less. No court gets to change this.
Under Originalism, a court must research the pertinent historical documents, preferably referenced in briefs. It is not allowed to use secondary sources that support a preferred conclusion as the Left-wing of SCOTUS does. In both Bruen and Dobbs, their dissents demonstrate a view long on policy verbiage but devoid of substantive legal analysis. Courts won’t be allowed to do this anymore. They must be courts of law, not another legislature. We cannot allow the words to change in meaning over time. The “Living Constitution” approach is over.
I’m sure some lower courts will continue to ply their trade, and SCOTUS can’t review every decision. But the cases that do get reviewed will be judged by their fidelity to the law as enacted. Courts will not be allowed to be policy bodies. That role is reserved for the legislature.
Bruen and Dobbs are monumental victories for freedom and federalism. Anyone who attempts to minimize that is missing something.
But they are also monumental victories for the fundamental rule of law. Any law that changes in meaning is no law at all. It’s an excuse for courts to legislate, and the Constitution does not allow that. Any changes to the Constitution must follow the approach found in Article V, and that’s designed to be very difficult.
The Left wants to sidestep the law in its rush for power. We see that mindset on daily display from virtually every Democrat near a microphone. SCOTUS has begun to step on the brakes of that runaway train. The Justices who stood up to protect America owe their majority to Donald Trump. The rest of us should say a very loud, “Thank you.”
SCOTUS Affirms Broad 2nd Amendment Protection
For the first time in about 200 years, the U.S. Supreme Court is on a Constitutional roll. In this case, the highest court in the land ruled strictly upon the basis of Constitutional text instead of on the basis of partisan political activism, as has been a practice in the courts ever since Jefferson warned about it repeatedly in the early 1800s.
“The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.” (Jefferson letter to John Wayles Eppes, 1807)
This is essentially the definition of “judicial tyranny.” Jefferson witnessed the problem before the ink was even dry on the Constitution. Today, people often refer to it in much kinder terms, “judicial activism.” No matter what you call it, the act is “unconstitutional” on its face.
Unfortunately, few modern Americans know anything at all about their foundations of freedom and liberty, codified in the Charters of Freedom. Sadly, even many contemporary “constitutionalists” can’t seem to get it quite right, due to relying upon “experts” and “scholars” to tell them what the documents say and mean, rather than studying history themselves.
But here are the foundational facts related to our Charters of Freedom and Liberty.
- The Declaration of Independence is our first “founding document.” It establishes why we separated from British Rule, formed a new sovereign nation of our own, on what authority, the Laws of Nature and Nature’s God, based upon certain “inalienable Rights” which were “endowed by our Creator.” It further established the most basic Rights and Duties of a free people, including what to do if our government ever became destructive of freedom and liberty.
- The U.S. Constitution: Contrary to popular misconceptions, there is no such thing as “Constitutional Rights.” This document does not establish or grant any “Rights of the People” or even provide any direct protection for the “Rights of the People,” other than limiting that government to the enumerated powers granted it by the “consent of the governed.” This document pertains only to the Rights, Duties, systems, and limitations of the government it created. It has literally nothing to do with the “Rights of the People.”
- The Bill of Rights: Again, contrary to misguided popular beliefs today, the Bill of Rights is not an enumeration of the “Rights of the People” either. But this document is an additional enumeration of specific items which the Federal Government is strictly prohibited from touching, at all, ever. The Bill of Rights is the only founding document that specifically protects the most basic natural Rights of the People, against government intrusions and infringements.
Now, the 2nd Amendment is one of only ten amendments that make up the Bill of Rights, which would have been better titled as a “Bill of specific prohibitions of government powers.”
This particular amendment is very short and very specific, so as to not ever be misconstrued.
“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.”
The amendment has four distinct sections, all with a clear specific purpose.
The WHY section: “being necessary to the security of a free State;”
The WHAT section: “to keep and bear Arms;”
The WHO section: “the right of the people;”
The PROHIBITION section: “shall not be infringed.”
In proper complete context, the Amendment says and means “being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Of course, we need to address the “well-regulated militia” section at the opening of the Amendment. This terminology was used as a term of art for the era. As we know from well-recorded history, the very first fighting force in what would later become the USA, operated under the command of the Continental Congress, made up of every able-bodied man from the thirteen original colonies as established in 1775 for the purpose of the American Revolution.
It wasn’t until after the adoption of the U.S. Constitution in 1787 and the formation of the first Federal Government, that the branches we have today were formerly established as a uniformed Military under the command of the United States, for the protection of all member States and the Union of Sovereign States.
In other words, the American Revolution was fought by “We the People,” as no government or central federal command existed until after the adoption of the U.S. Constitution. It was years later that the USA formalized “uniformed branches of the U.S. Military.” Prior to this, a “militia” of, by and for ordinary people, was all that existed.
Once the USA formed its own government commanded branches of the military, militias have often been considered a thing of the past. However, the only defense the people have even today, against all enemies, foreign and domestic, including a tyrannical government which turns its courts and military on the people themselves, is an armed citizenry with ultimate authority over all governmental bodies. Even the US Military itself takes an oath to the Constitution and the People of the USA, not any politician.
Now, at the time of the adoption of the Bill of Rights, the term “INFRINGE” had the following meaning, and it still has that same meaning today. “To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance.”
Contravention means “Opposition; obstruction; a defeating of the operation or effect.”While the 1st Amendment is specific to the authority of Congress (shall make no law), the 2nd Amendment language applies to the Federal government in totality, “shall not be infringed” or “contravened.”
In closing, the 2nd Amendment is not in any way “ambiguous,” and therefore, it is not left up to interpretations or the political whims of time. Therefore, as the Supreme Court just ruled, court opinions, statutes, executive orders, changing political policies, or the mere “non-fulfillment or neglect of performance” which “infringe” upon upholding an unregulated Right of the People to keep (possess) and bear (carry) arms, is a direct violation of the 2nd Amendment and every oath of office. This protected natural Right of the People SHALL NOT BE INFRINGED…THE end!
One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)
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