The importance of judges

Sebastian reported a new gun blog and I poked around some. The author, Nicholas J. Johnson, is a Professor of Law specializing in firearm regulation. I found this post of his fascinating.

The following, in particular, caught my attention:

Both the majority and the dissent acknowledge that the AR-15 is a gun in common use. How they proceed from there is illuminating. The dissent treats common use as a solid liberty-protecting standard. Guns in common use cannot be banned.

For the majority, acknowledging the AR-15 as a gun in common use is just a rhetorical lead-in to the burgeoning two stage standard of review. The court found that the D.C. law did in fact burden a core Second Amendment concern. But at stage two it determined that the ban does not “substantially burden” the right to self-defense (people could still have handguns and many other long guns).

This reasoning is not derived from Heller and it is interesting to speculate what else would pass muster under this approach. Pushed hard, it would seem to allow very broad gun bans as long as some core self-defense guns remained legal.

In Heller it was said that guns “in common use” are protected from prohibition by the 2nd Amendment. But some judges are ignoring that. This is essentially a repeat of what happened in Miller where it was said that to be protected by the 2nd Amendment a gun had to “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” Yet many courts ignored that statement and instead substituted a twisted version of the actual wording of the Miller decision and said the individual wanting to own or bear a firearm had to be in a militia.

Mike B., a lawyer friend of mine, once told me engineers make poor lawyers because they believe the law means what the law says and it doesn’t. The law actually means whatever the judges want it to mean. This is another data point supporting that claim. And this is another reason why getting people who follow the law as written as our judges is vital to the preservation of our rights.

Or perhaps expressed better is the comment to the post by Brett Bellmore (Oct 06, 2012 @ 09:13:19):

In the end, there’s no substitute for staffing the judiciary with people who aren’t hostile to this liberty. They have too many ways to destroy liberties they don’t like, to afford enemies there.

Keep that in mind each and every time you vote.

8 thoughts on “The importance of judges

  1. A couple of points as follow-up;

    The Enemy has always claimed, either openly or by way of insinuation, that the only “infringement” possible would be a total ban on all firearms. Anything short of a total ban on all firearms cannot be an infringement. In reality, an infringement is anything that attacks the fringes of the right to keep and bear arms.

    If electing the right people is the only protection for our unalienable rights, then the constitution is truly worthless as a legal document. It means we have a de facto pure democracy at best. Since legislators and judges are violating the constitution without being brought to justice, even our votes cannot overcome the problem. Any good liar can run for office, or be appointed, promising to protect human rights, and then violate the hell out of our rights once elected or appointed, with us having no legal recourse.

    In short; we have been set up for a fight, and there is little chance that a fight can be avoided. Among other things, until office holders are arrested, convicted and punished for their crimes in a proper court of law, we have no republic. Another thing is that we, as individuals, must have our American principles as our guide, AND be able to articulate, defend and teach those principles, or none of this other stuff will matter, ultimately.

  2. I agree that the situation is unsustainable. In order for it to succeed there must be consequences for those that violate the constitution. Even in egregious cases of police misconduct in collecting evidence without a warrant all that happens is the evidence is thrown out. Why isn’t the police officer fired and/or required to personally pay for the attorney fees required to get the evidence thrown? If someone comes to harm because of a waiting period for a firearm why aren’t the legislators held personally responsible?

    All the existing system has done is change the slope of our slide into the abysses.

  3. I was told last night that we (Americans) should completely forget about having a normal Christmas, so some think we’re that close to the edge, that it’s a matter of a few weeks. If and when he explains himself I’ll let you know, but there it is. All I can figure is that he was referring to some extremely serious riff over the election, but he said it with absolute conviction. Then there is the possible Lame Duck period for O, and that could be ugly too. Everyone senses it. Another guy, a customer today, told me he “smelled something” coming.
    Steady.

  4. There is a bunch of economic stuff going on in Europe that has been intentionally pushed out past our elections. That might have a ripple/domino effect worthy of concern when it happens.

  5. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms “in common use”, shall not be infringed.

    Yeeeaahhhh…. that just doesn’t work for me.

  6. @cargosquid, A comment I left at Robb’s place needs to be here as well (one typo corrected):

    Taken by itself “in common use” would be very poor support for the right to keep and bear arms (or any other right). But it’s not the only means of support. Any restriction must also pass some level of scrutiny. This is presumed to be at least intermediate and hopefully strict.

    What “in common use” does is grandfather “assault weapons” such that they cannot be touched. Alan Gottlieb told me (IIRC but I haven’t verified) the amicus brief from SAF introduced the “in common use” phrase for this purpose. It also gives absolute protection to handguns that have in the past have frequently been under attack because “you can’t hunt with them” and “they are just used to kill humans”. Even Obama in the second debate hinted at “cheap handguns” being something that should be restricted. “In common use” protects them.

    How “in common use” is defined is a concern but it would be hard for someone to argue that the most popular rifle style in the U.S. and magazines holding more than 10 rounds are not in common use. If the phrase does it’s job in grandfathering standard capacity magazines and AR-15/AK pattern rifles then it will have done its assigned task.

  7. Among other things, until office holders are arrested, convicted and punished for their crimes in a proper court of law, we have no republic.

    Who will try them? Other judges? My hopes are not high on that front.

    Quis custodiet, and all that.

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