Big Dogs Weblog

Gun Rights Drive Liberals Crazy

by Big Dog on Jul 5, 2008 at 17:38 Second Amendment

Attention is drawn to more moonbattery with regard to the Second Amendment thanks to my friends at Red Maryland. Seems that a person named Erwin Chemerinsky, the dean of University of California Irvine school of law (and supposed Constitutional scholar) is very upset with the decision of the Supreme Court that affirms our Individual right to keep and bear arms:

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’s majority 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 Second 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. Baltimore Sun

According to this so called scholar, upholding the Constitution is judicial activism. Despite Chemerinsky’s claims that the Court changed previous judicial rulings, that is not what happened. Since the Court has NEVER ruled on whether the Second Amendment is an individual right there is no way the Court changed history. However, even if it did what would be the problem? The Court is obligated to overturn any ruling that was in error. If a previous Court ruled on something and it turned out to be incorrect then the Court is obligated to fix it. If the Court were bound to uphold all previous decisions then we might still have slaves and the Dred Scott decision might not have invalidated by the Thirteenth Amendment. Interestingly, the Dred Scott decision provides us with the Court’s views on the Second Amendment even though the issue was not about gun rights.

In its opinion on the matter, the court stated that freeing a negro would cause several problems:

It would give to persons of the negro race, who were recognised[sic] as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. Cornell Law

Chemerinsky, in his liberal fantasy of a world, would have people believe that the Court has gone against previous rulings (despite the fact that it has never ruled on the matter) and would ignore the fact that the Court, in a statement during a ruling on a different matter, affirmed the INDIVIDUAL right to keep and bear arms. The supporting statements in Court decisions hold weight. In the Scott case the Court affirmed the individual right even though that is not what they were asked to rule on.

Chemerinsky describes the 1939 US v. Miller decision (and others) as rulings ignored by the Court. What are those other cases? If this guy is the dean of a school of law then one would expect him to be able to come up with the names of the cases. Instead, he uses a reference to unnamed cases to give the reader the impression that many cases exist. In reality, very few cases involving the Second Amendment exist and Miller in 1939 discussed the type of weapon, not who was allowed to posses it.

It is also interesting to note that Chemerinsky states; “the court both ignored precedent and invalidated a law adopted by a popularly elected government.” First of all, if the law was unconstitutional then it does not matter what precedent there was (none) and it does not matter that it was instituted by a popularly elected government. The Bush Administration is a popularly elected government but that has not stopped the left from filing suits and from the VERY SAME Supreme Court from ruling against the President. I guess to a liberal there is one standard for laws they like and one for laws they do not.

I also think it is interesting that when the popularly elected government of California enacted, through the vote of the people, a definition of marriage that was not good enough for a lower court. The court, in that case, ruled the law and legal definition of marriage unconstitutional and allowed gay marriage. How many people from Chemerinsky’s side hailed that ruling as a wonderful day in jurisprudence.

The fact is, regardless of what anti gun nuts say, the Supreme Court affirmed the individual right to keep and bear arms, the same thing the people who wrote the Amendment stated about it when they described what it meant. It is also a fact that more lawsuits will be filed in order to completely define exactly what that Amendment means and, when is all said and done, the left will be even more upset because we will finally have our rights appropriately defined and have protection against those who will usurp those rights.

Of course, the 5-4 decision should give all conservatives chills down their spines. There were four justices that were unable to see the meaning of the Amendment correctly despite the numerous writings describing it, written by the very people who authored the Amendment. We need to elect a president who will appoint justices who are able to interpret the Constitution the way it was written, using the words of the people who wrote it.

Now, if we could only get deans of law schools who understand the law…

Tags: constitution, gun laws, judicial activism, Second Amendment