breakdown of law and order, D/S/Cs, Elena Kagan, flexibility, Heller, John Paul Stevens, living Constitution, second amendment, Social justice, Sonia Sotomayor, Stephen Breyer, Strict Scrutiny, Supreme Court, unalienable rights, unwavering values
On October 26, I posted Heller And The Coming Revolution. If it’s not easily brought to mind, one might take the link before continuing.
As promised in that article, here we examine the minority dissent in Heller, for in that examination we find the likely methods by which a packed Supreme Court will—not might—demolish the Second Amendment. It is entirely possible, should Democrats/Socialists/Communists win the White House and both houses of Congress there will be no restraints whatsoever in their pursuit of absolute and everlasting power. They will work fast, dirty and ugly. It’s also possible they won’t pack the courts, just impeach any judge that won’t legislate from the bench for D/S/C policy and replace them with those that will. They’ll probably do both, just to be sure. The very day she was confirmed as a Supreme Court Justice, D/S/Cs were already calling for her impeachment. Considering they’ve done the same to President Trump, she’s in good company.
The D/S/C majority of Supreme Court judges may never have to do the dirty work themselves. The lower federal courts will also be packed. But to apply their destruction of individual liberty to the nation as a whole, a Supreme D/S/C Court will likely write the decisions in stone. They may think themselves so powerful they can declare the Constitution unconstitutional, even write their own from the bench, but as you’ll see as you read on, gentle readers, that’s not necessary.
Let us first go back to December 14, 2010, where I wrote On The Court, Leftist Justice vs The Rule Of Law at PJ Media. The article was occasioned by a rare appearance of a Supreme Court Justice on Fox News Sunday. The justice was Stephen Breyer, who wrote the minority dissent in Heller. An excerpt from that article:
On Dec. 12, the consequences of the election of Mr. Obama were illuminated in stark relief on Fox News Sunday during Chris Wallace’s interview of Supreme Court Justice Stephen Breyer, currently hawking his book Making Our Democracy Work. Wallace wisely questioned Justice Breyer on the Second Amendment. His answers and evasions were illuminating — and frightening.
Justice Breyer suggested that the primary job of a Supreme Court justice is to determine the values of the Founding Fathers. Breyer suggested that his second concern was to examine history, with the majority opinion of historians, perhaps, considered to rule. He did ultimately allow that judges should consider such matters as the the actual text of the Constitution and precedent, but Breyer’s answers to Wallace’s questions revealed his belief that the text and its clear meaning should be ignored in favor of the approach of judges like himself — who should ‘regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.’ Justice Breyer suggested that this was a ‘pragmatic’ approach.
Did you notice the contradictions? “Unwavering values that must be applied flexibly to ever-changing circumstances?” How can values be unwavering, yet flexibly applied? As the majority noted in Heller, the existence of express, individual rights in the Constitution absolutely takes some things off the table. Breyer, and the contemporary D/S/C minority of Sonia Sotomayor and Elena Kagan, are proponents of the “living Constitution” theory, which means it must be interpreted to vindicate contemporary D/S/C policy. That’s where the flexibility over the Founders “values” comes in.
It should be noted during their confirmation hearings the self-described “wise Latina” Sotomayor, and Kagan both swore the Second Amendment was deserving of as much respect as any other express right. As soon as they had the opportunity to rule against it, they did. This is often known as “lying.”
I will not recite the entire dissent—it’s very long and terribly tedious—but give you the essence of the minority’s—then and now—intentions.
Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
NOTE: In March of 2018, I wrote of retired Justice John Paul Stevens, then 97, who wrote a New York Times editorial. Impressed by the post-Parkland constitutional acumen of Tide Pod-eating children, he advocated the repeal of the Second Amendment. The opening of the Heller dissent:
We must decide whether a District of Columbia law that prohibits the possession of handguns in the home violates the Second Amendment . The majority, relying upon its view that the Second Amendment seeks to protect a right of personal self-defense, holds that this law violates that Amendment. In my view, it does not.
The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.
Notice that Justice Breyer argues the Second Amendment does not affirm an individual right, only the power of government relative to militias. Individuals have rights, governments have powers. Breyer conflates “interests” with rights. He’ll contradict himself momentarily:
The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are—whether they do or do not include an independent interest in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.
Breyer has set up an impossible standard. The Court can’t declare any gun law unconstitutional unless they can show it violates the Second Amendment, but that’s impossible, so no infringement can possibly be unconstitutional. This is the overall thrust of his argument.
In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:
(1) The Amendment protects an ‘individual’ right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred.
No, the entire court does not subscribe to the notion the Second Amendment affirms an unalienable, individual right. Breyer has already said so, and the minority agrees with him. Throughout the dissent, Breyer continually tries to have it both ways.
Although I adopt for present purposes the majority’s position that the Second Amendment embodies a general concern about self-defense, I shall not assume that the Amendment contains a specific untouchable right to keep guns in the house to shoot burglars.
Breyer assumes instead it speaks to no right at all, only a particularly weak privilege government confers and may withdraw at whim, particularly in urban areas.
Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a ‘primary concern of every government—a concern for the safety and indeed the lives of its citizens.’
That assumes every government always acts in good faith and in strict accordance with the Constitution, which Breyer minimizes here. The Founders knew otherwise, which is why we have a representative republic with separation of powers, not a democracy. Any government seeking to eliminate any portion of the Bill of Rights does not have the lives and safety of its citizens at heart. We’ll get into standards of scrutiny shortly.
Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.
Thus does Breyer wipe away the strict scrutiny standard because it’s much too harsh on the poor government, which after all, only ever seeks the welfare and safety of Deplorables: smelly, missing toothed, uneducated, unsophisticated, Trump-voting WalMart shoppers.
The second District restriction requires that the lawful owner of a firearm keep his weapon ‘unloaded and disassembled or bound by a trigger lock or similar device’ unless it is kept at his place of business or being used for lawful recreational purposes…. The only dispute regarding this provision appears to be whether the Constitution requires an exception that would allow someone to render a firearm operational when necessary for self-defense (i.e., that the firearm may be operated under circumstances where the common law would normally permit a self-defense justification in defense against a criminal charge).
Breyer completely misstates the objections to this portion of the DC law. The assertion of a constitutional right in this case was far broader than merely allowing an “exception” when one is under actual criminal attack in their home, so as to avoid being charged with a gun crime. The law, in fact, anticipated charging the law abiding with gun crimes should they dare try to exercise their Second Amendment right or dare to defend themselves from criminal attack in their own home.
And because I see nothing in the District law that would preclude the existence of a background common-law self-defense exception, I would avoid the constitutional question by interpreting the statute to include it.
Breyer is here saying the Court need not address this at all, because the fair and even-handed DC prosecutors would surely never prosecute an innocent citizen for using his gun against a criminal in his own home, even though the law was written to do just that. In other words, a justice of the Supreme Court is actually arguing for ignoring the actual text–the words–of the law. Considering his “flexibility” in such things, that’s to be expected. D/S/Cs often write abusive, unconstitutional laws and argue against their repeal by saying “oh no, we never intended anyone to be prosecuted and jailed for that, and we’re sure no prosecutor would do that, so we don’t need to repeal it.
I’m going to skip a significant section of the dissent here. Breyer largely justifies the DC law by citing a variety of dubious and blatantly exaggerated and false anti-liberty/gun statistics, essentially arguing because criminals use handguns, it is entirely constitutional for the government to disarm their law-abiding victims in the name of public safety. He does admit, briefly and barely, there are statistics to the contrary:
These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not. For one thing, they can lead us more deeply into the uncertainties that surround any effort to reduce crime, but they cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective. The statistics do show a soaring District crime rate. And the District’s crime rate went up after the District adopted its handgun ban. But, as students of elementary logic know, after it does not mean because of it. What would the District’s crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say.
Breyer argues the Court must ignore the fact that most state legislatures have never banned handguns, indeed, any evidence that would contradict D/S/C narratives. Notice too he argues judges can’t make judgments about public safety, yet he continually does just that. He is arguing constitutional rights may be struck down if a majority of judges can conjure pseudo-scientific “evidence” supporting their preferred outcome. He’s already established what the law actually says is essentially irrelevant.
Breyer also spends a great deal of time arguing DCs restrictions don’t really burden anyone. Since residents can take a train, or travel an hour or so to places that don’t ban guns or target practice, any restriction is permissible:
And while the District law prevents citizens from training with handguns within the District, the District consists of only 61.4 square miles of urban area…. The adjacent States do permit the use of handguns for target practice, and those States are only a brief subway ride away.
In my PJ Media article, I reiterate Breyer’s belief that forcing DC residents to travel to Maryland or other states merely to fire their guns in practice is entirely kosher under the Second Amendment.
Of course, a subway rider must buy a ticket, and the ride takes time. It also costs money to store a pistol, say, at a target range, outside the District. But given the costs already associated with gun ownership and firearms training, I cannot say that a subway ticket and a short subway ride (and storage costs) create more than a minimal burden.
Here Breyer admits his fictional citizen would be breaking the DC law to so much as transport his gun anywhere within the District, so they can just pay to store it somewhere else. So much for any possibility of self-defense in the home. Being murdered where one might have had the means to prevent their death might reasonably be considered a burden on the victim, and even their family—if they survive–even though they weren’t members of an approved D/S/C victim/grievance group.
And any inability of District residents to hunt near where they live has much to do with the jurisdiction’s exclusively urban character and little to do with the District’s firearm laws. For reasons similar to those I discussed in the preceding subsection—that the District’s law does not prohibit possession of rifles or shotguns, and the presence of opportunities for sporting activities in nearby States—I reach a similar conclusion, namely, that the District’s law burdens any sports-related or hunting-related objectives that the Amendment may protect little, or not at all.
Riiiight. DC residents can’t own handguns and can’t use them. They can’t hunt or use them for sports, but they can own rifles or shotguns, which they can’t shoot either, so their Second Amendment rights aren’t infringed. They can sort of keep, but can’t bear anything. Breyer is entirely dismissing any individual right affirmed by the Second Amendment—remember he said the whole Court recognizes one?—because there can be no possible regulation that infringes on any right, which he doesn’t recognize in the first place. The Second Amendment was not written to secure a right to hunt or participate in shooting sports.
The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns.
I trust, gentle readers, you see the danger, the horror of this assertion? In police states, the police can immediately arrest, even kill, anyone armed in any way. Breyer looks on this tyrannical state of affairs with longing. Breyer pretends to accept the idea of handgun possession, but only subject to registration and regulations that render them expensive paperweights that cannot even be used to weigh down paper, that cannot so much as be carried from the living room to the kitchen, yet in this paragraph, he reveals his desire, and the desire of the minority, to see them all banned—for public safety, of course.
As important, the majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The majority says that it leaves the District ‘a variety of tools for combating’ such problems…. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.
Demonstrably, those seeking to ban guns, to squelch liberty, know terribly little about the devices they want to ban. There is no “adequate replacement for the law it strikes down,” because the law is unconstitutional! “Other emergencies that threaten the breakdown of law and order” such as riots, arson, looting, murder, the emasculating or abolishment of police agencies,” that kind of “breakdown of law and order” Justice Breyer? The kind of breakdown directly caused by the D/S/C legislators and politicians in charge of those cities? What recourse does the “handgun-free urban populace” have in those circumstances?
The minority essentially ends with this:
The argument about method, however, is by far the less important argument surrounding today’s decision. Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.
The “sound legal basis” on which the Majority decided the case is their duty to determine when laws violate the Constitution. If such laws are unconstitutional, it doesn’t matter how much D/S/C politicians like them, or what arguments they make. Unconstitutional is unconstitutional, unless of course, Supreme Court justices think it’s their job to declare the Constitution unconstitutional. Because Justice Breyer is so enamored of “flexibility” and “ever-changing circumstances,” one would think, circa 2020, he would take into account the enormous number of people living in “crime-ridden urban areas” buying handguns, such number to include many people who previously bought Justice Breyer’s arguments. Seeing one’s neighborhood looted and burned while the police are entirely absent, or merely looking on, having to step over needles, feces and puddles of urine, being accosted by drug addles and the mentally ill, having to replace auto glass every other day, and other contemporary urban horrors tends to have a sobering effect which further tends to focus one on reality– fact rather than truth–in contravention of Joe Biden.
Of course, Breyer will not take this into account. He knows the truth so facts—and the Constitution—don’t matter. A D/S/C dominated Supreme Court will wipe away the Second Amendment. They most likely won’t declare it repealed; it will still exist on yellowing paper and fading ink. Its application in the lives of individuals will be wiped away. There will be no restriction, no law, no matter how petty and onerous, no draconian punishment such a Supreme Court will find in violation of an ephemeral Second Amendment. D/S/Cs will finally get to disarm and punish Deplorables for daring to think they had rights, for daring to think politicians worked for them, and the path to a true people’s utopia will finally be open.
Such laws will not apply to criminals, of course. For example, in US vs Haynes (1968), the Court held felons cannot be prosecuted for failing to register firearms. Because they’re felons, it’s illegal for them to possess arms, so registering one would violate their Fifth Amendment right against self-incrimination. That’s Breyer’s kind of flexibility. Don’t count on the Fifth Amendment to apply to the law abiding, however. That’s just the kind of thing that gets in the way of social justice.
But what about predecent? What about Heller? Isn’t the Supreme Court big on that? A Supreme Court acting within the limits of the Constitution, perhaps. A packed court? You’re kidding, right? But that’s OK. If they’re going to eliminate the Second Amendment, they’re surely going to eliminate the First. They have a good start on that already.
This, gentle readers, is what’s at stake on November 3rd. Of course every other liberty is also hanging in the balance, but it is the Second Amendment that protects them all. Joe Biden certainly knows this if he knows anything—a doubtful proposition these days. He’s been trying to eliminate that right for decades. Kamala Harris, who is actually going to be president, absolutely knows it, and salivates at the thought.
Is this the kind of opportunity would-be tyrants should have?