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Who Will Appoint Judges During the Next Four Years?

July 14, 2008

If anyone needed more convincing about the importance of the next presidential election, one need go no further than the decision of the U.S. Supreme Court in District of Columbia v. Heller, where a Washington, D.C. ban on hand guns was declared unconstitutional because a majority of justices properly interpreted the Second Amendment.

The 5-4 decision in this case required the assent by one man, Justice Anthony Kennedy, to join with four other justices, which is bad enough inasmuch the court's opinion should have been unanimous; but worse still is the thinking process about the constitution as expressed by some justices in the minority opinions.

The Second Amendment states: "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." To most readers of the constitution, the wording is clear; the people have a right to own guns and use them in any lawful manner. But gun control advocates do not accept this basic right even if set forth in the constitution so they resort to a liberal judiciary willing to replace the language of the constitution with their own version of what should be the law to satisfy their social perspective. The Heller case minority opinions make this abundantly clear. If Barack Obama is elected president, and there is the anticipated increased Democrat majorities in the House and Senate, we can expect anyone appointed to the court when the need arises will have views resembling those justices now on the court who are willing to ignore clear constitutional language in favor of achieving some social end result more to their liking.

Justice Antonin Scalia writing for the court's majority, after observing - "The two sides in the case have set out very different interpretations of the amendment." - wrote that the meaning of the Second Amendment is that Americans have "an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home." In contrast Justice John Paul Stevens wrote that the Second Amendment "was adopted to protect the right of the people of each of the several states to maintain a well-regulated militia," and he finds no "evidence supporting the view that the amendment was intended to limit the power of Congress to regulate the civilian uses of weapons." However, the evidence to support Stevens is not found in the amendment itself.

Furthermore, it is absurd to believe, as Stevens does, that a state supported militia would not supply weapons as needed but must rely upon arms possessed by individuals. It is also defies the purpose of the constitution to "look for evidence" in the constitution to limit the power of Congress since it was the intention to only grant limited powers to the government while reserving all others to the states and the people. There is no doubt that the original intention was to prescribe a limited government with limited powers.

In his written opinion Scalia declares that "a prefatory clause does not limit or expand the scope of the operative clause and only by putting a background intention firmly in place can one stabilize a text that (like all texts) varies with the purpose assigned to it."

However the best example of what we may expect of judges appointed to the court is found in the opinion of Justice Stephen G. Breyer. For a large part of his separate dissenting opinion, Justice Breyer shows he is less concerned with intention and purpose of the constitutional language than with the problems faced by crime in urban areas. Handguns, he observes, "are involved in a majority of firearms deaths and injuries in the United States." And they are also, he declares, "a very popular weapon among criminals."

He puts particular weight on a report from a congressional committee that found handguns "to have a particularly strong link to undesirable activities in the District's exclusively urban environment."

Where's the link to what the Constitution says? Breyer claims to find it in the phrase "exclusively urban environment" in the congressional report but not in the Constitution itself, which allows him come to conclusions that look more like an internationalist argument. The reasoning is convoluted because it relies on a social desirability (from his viewpoint) and not on the actual constitutional wording. The problem the statute is intended to redress, he says, is largely urban; so in thinking about the Second Amendment, the framers would have been "unlikely to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings," if only because in the America they knew there were no urban settings. Whether or not this argument is persuasive as an account of the framers' intention, its intention is clear - Breyer is more concerned with "doing good" than in doing the judicial job of interpreting the law and not in making the law.

For the majority it is important to ascertain the intention of the writers of the constitution in regard the subject matter of the Second Amendment. In that, the record is quite clear.

The framers of the constitution possessed the early American character of independence and self reliance, and no one or country was ever again going to take away their freedom. The only way this right to freedom could be assured was to mandate that Americans would always have the ability to defend themselves, not just against criminals but also against the state if and when necessary, by being able to own and possess arms. As James Madison said:

"[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation... (Where) the governments are afraid to trust the people with arms." --James Madison, The Federalist Papers, No. 46

A desire to be and remain free was paramount and possession of arms was necessary to this end. Early Americans were self reliant, and patriotic; many of their present day counterparts are neither. If you want to see how much liberals have deteriorated over the years, here is what a one-time liberal icon had to say about the subject about 50 years ago:

"Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms ... The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard, against the tyranny which now appears remote in America but which historically has proven to be always possible." -- Hubert H. Humphrey, Senator, Vice President, 22 October 1959

Current day liberals are not the first to think gun ownership by the citizenry is bad. They have this in common with one of history's notables:

"The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing." -- Adolph Hitler, Hitler's Secret Conversations 403 (Norman Cameron and R.H. Stevens trans., 1961)

If we elect Barack Obama to the presidency we will see judges like Justice Breyer on the U.S. Supreme Court and in other judicial positions around the country. Instead of people who honor the constitution in its original form, we will have a judiciary with the kind of social activism that will destroy the rule of law and replace it with the law of the "politically correct", and result in loss of our freedom.

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Copyright ©2008 Vincent Gioia