Category Archives: Supreme Court

The Right to Bear Arms Highest Ranked Topic at The Liberty Papers

Every now and then I take a look at the sitemeter for The Liberty Papers to get some idea of how many people are actually reading and what they are reading. When I went to the pages ranked by entry and exit, I couldn’t help but notice how many pages were being viewed concerning the 2nd Amendment or the right to bear arms. Of the top 20 entry pages, 8 are 2nd Amendment related and the same is true for exit pages.

Given how much discussion there is at present time about the meaning of the 2nd Amendment, I suppose this shouldn’t come to much of a surprise. Since this is an important as well as popular issue, and rather than restate many of the same arguments in favor of the right to bear arms yet again, I thought I would link these 8 posts here by entry page ranking.

#2 (351 visits) The Best Explanation of the Second Amendment I Have Ever Heard by Stephen Littau (2007)

#5 (155 visits) Why Does the Second Amendment Exist? by Eric (2005)

#7 (133 visits) Larry Correia on Gun Control by Quincy (2012)

#10 (59 visits) Yes, the Second Amendment really means what it says… and that means you too Chicago by Chris (2010)

#13 (40 visits) Random Acts of Violence Can Be Mitigated But Not Prevented by Stephen Littau (2012)

#14 (39 visits) Hillary Clinton: Second Amendment Defender? by Stephen Littau (2008)

#15 (38 visits) When is Armed Rebellion Appropriate? by tarran (2008)

#17 (31 visits) Harold Fish is Free! by tarran (2009)

Read these posts again and let’s discuss them in the comments section.

The Basic Premise Behind Campaign Finance Laws

A great deal of ink (or film, or bits) has been expended this election cycle, primarily on the far left (though some on the right… particularly with the more populist factions), decrying the actions of “independent” political action committees, superPACs, and “issue advocacy groups”; as somehow corrupt, evil, anti-democratic etc..

The rhetoric on the left, is that the “citizens united” decision has basically given “shadowy actors” like say, Karl Rove and the Koch brothers, effectively a blank check to “buy elections”.

Of course, the idea that we need to “get the money out of politics” has been a political meme for approximately as long as politics has existed…

… and to a degree, there is a point there. ACTUAL political corruption, in the sense of directly buying influence or buying votes; is certainly something we need to combat as much as possible.

We’ll never eliminate it of course, humans have an endless capacity for venality, greed, and self interest. That’s just the way it is…

Frankly, the only way to get money out of politics; is to get politics out of money.

By which I mean, that so long as politics has an impact on my business and my life (and it always will); if I have money, I’m going to have a strong incentive to spend it, to make the political process work to my advantage… Or even just to hurt me less.

And that’s the way it SHOULD be… I SHOULD be able to spend my money to reduce the harm that government does to me, or to try to make government come out to my advantage; so long as I am not actually bribing a legislator to vote the way I want, committing fraud etc…

There’s a simple way of combating this; and that’s reducing the power of government to impact the individual, such that they no longer have any incentive (or really, so that their incentive is lower… since you’ll never get that little political interference) to spend their money in that way.

But that’s not what these folks are decrying from the hilltops.

What they are screaming about, is essentially free speech they don’t like.

Make no mistake, money IS speech. If you don’t have money, you can’t buy media air time. If you can’t buy media air time, then you can say whatever you want, but you’ll be speaking to an empty room.

One of the basic principles of free speech, is that you have the right to say whatever you like (short of libel, slander, fraud, or incitement to crime); so long as you are not infringing on others rights by doing so.

Another one of those basic principles is that you have the right to say it… But I don’t have to listen to it, and you don’t have the right to make me.

It’s up to me, to decide who and what I listen to, and to use my own judgement and experience in doing so.

So, you may not like what these people are saying; but so long as media companies are willing to sell them airtime, you have no right to restrict that. By attempting to do so, you are attempting to regulate free speech (conversely, you also have no right to force those media companies to sell time to opposing viewpoints; another leftist canard about “fairness”).

Makes sense right?

Well, it does to me… and to the supreme court; and when it’s causes that leftists agree with they’re perfectly OK with it.

The REAL argument, comes down to this:

“We can’t allow these bad evil people and groups to speak, because although I’m smart enough to know the difference between lies and truth, the general population are too stupid to do so”

So, rather than actually convince the people of their own side of the argument, they seek to prevent the other side from even speaking.

It’s entirely consistent with the historical leftist narrative that the “proletariat is fooled by the comfortable goods of the bourgeoisie and the lies of the ruling class” etc… etc…

Their basic premise here being that if the people could only hear and understand the truth, that the leftists ideas would be universally acclaimed as true and necessary, and immediately put into place (with the leftist elites themselves in charge of course… after all, who better to lead than those who understand the ideas the best).

They can’t accept the idea that maybe people don’t WANT more government, with more power over everyone’s lives and businesses… Because that would go entirely against the ideas they have based their entire lives and identities on; and that simply can’t be possible.

…but that’s another argument entirely.

Oh and I should note that there is a “right wing” authoritarian narrative that is nearly identical in principle, that the people are too stupid, lazy, corrupt etc… To be trusted to make their own MORAL decisions; and that the force of government must be used to make people “do the right thing”. That’s equally as bad; it’s just not what we’re talking about right now.

Now… I hate these ads as much as everyone else… But not because I decry “those fools actually believe these foul lies” (though they may be foul lies, and “the people” may believe them); simply because they’re REALLY IRRITATING.

If the people actually are so stupid that they believe “foul lies”; and the other side isn’t smart enough, or doesn’t have a good enough argument to convince them otherwise…

Well, so be it.

That’s the problem with a democratic representative republic. You have to live with the representatives the electorate choose, and the things they vote for.

It’s also why it’s so critical that we have a strictly limited government of enumerated powers only… Or rather, that we return to that; as we haven’t actually had such a government since 1861.

Our government was intended to provide protection against the tyranny of the majority… Unfortunately from the first day that government was put in place, people with “good ideas” have attempted to (often successfully) use the force of government, to have those ideas implemented, without regard to the legitimate powers of government, the desire of the people, or the rights of those being governed.

The left are perfectly willing to crow about how great democracy is… until the people refuse to vote for what they want; at which point they try to get the courts to make the people do what they want anyway.

Because, as we all know, when it comes to leftist causes, they are all “moral imperatives”…

Or as a very smart man put it once “The ends justify the means”.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Did Justice Roberts Help Romney and Provide a Path to Repeal ObamaCare?

Over at Red State, Erick Ericson theorizes that Chief Justice John Roberts joined the majority opinion as a way to put ObamaCare back into the hands of the political branches to decide the law’s fate:

The Democrats have been saying for a while that individual pieces of Obamacare are quite popular. With John Roberts’ opinion, the repeal fight takes place on GOP turf, not Democrat turf. The all or nothing repeal has always been better ground for the GOP and now John Roberts has forced everyone onto that ground. Oh, and as I mentioned earlier, because John Roberts concluded it [the individual mandate] was a tax, the Democrats cannot filibuster its repeal because of the same reconciliation procedure the Democrats used to pass it.

It seems very, very clear to me in reviewing John Roberts’ decision that he is playing a much longer game than us and can afford to with a life tenure. And he probably just handed Mitt Romney the White House.

Our own Doug Mataconis said he “would not be surprised to see it be a 6-3 decision” way back in April for the following reason:

Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.

Erick Erickson also mentioned on his radio program that many conservatives and libertarians who aren’t thrilled with Romney as the nominee will put aside their objections and vote for him if it means repealing ObamaCare.

I hate to say it but I think Erickson has a point. ObamaCare being upheld is a game changer. Prior to this decision that was supposed to strike down all or part of ObamaCare, I was absolutely certain that I would enthusiastically vote for the Libertarian nominee Gary Johnson rather than settle for the lesser of the two evils. With ObamaCare being upheld, now I have to say I’m not so sure. I’m not normally a single issue voter but if ObamaCare isn’t stopped and soon, we will be stuck with it for at least a generation.

The problem is though, it might already be too late. Several things have to happen just right. First Romney must be elected and the GOP must take control of the Senate and hold the House. Second, we have to trust that Romney and the Republicans in congress will actually follow through. We’ve been disappointed before.

On Judge Jerry Smith’s “Homework Assignment” And Judicial Deference To The Legislature

Last Tuesday, a federal judge in the 5th Circuit, Jerry Smith, blasted a DOJ lawyer on an ObamaCare case in the wake of Obama’s comments on judicial activism. The Judge assigned the lawyer a three-page, single spaced homework assignment to draft a position on whether the judiciary has the legitimate right to overturn Unconstitutional legislation.

Everyone was up in arms over this, and to be honest, I frankly think it was pointless, in bad taste, and didn’t do anything but spin up a news cycle for about 24 hours. After reading a particular Popehat piece, I’m not all that surprised, but I’m certainly a bit dismayed that Jerry Smith decided that this was a necessary act.

Well, the homework assignment is here for all to see:

DOJ Letter to 5th Circuit re Judicial Authority

There’s a section in here that is particularly interesting. One aspect of this is an “F-U” to the judge, but points to something that I think is a bit unnecessary in Constitutional jurisprudence:

While duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress. See, e.g. , Nature’s Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v. Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and Commercial Workers Union Local 75i v. Brown Group, 1995 WL 938594, at *6.

The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts ‘·try not to nullify more of a legislature’s work than is necessary” because they recognize that’” [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people’”(alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality opinion))); Turner Broadcasting System, inc., 512 U.S. at 665-66. The “Court accords ‘ great The “Court accords ‘ great weight to the decisions of Congress”‘ in part because “[t]he Congress is a coequal branch of government whose Members take the same oath [judges] do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973)). These principles of deference are fully applicable when Congress legislates in the commercial sphere. The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends. See, e.g. , NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32 (1937); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder, 661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J.)

So the Supreme Court should grant a great deal of deference to Congress, because Congress cares deeply about their Constitutional obligation!

Paging the folks over at Volokh:

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest […] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

So some don’t care, and some just assume the authority exists but can’t cite it, and some make up new sections of text in the Constitution that don’t even exist. Deferring to Congress on whether or not legislation is Constitutional is like deferring to Philip Morris on whether cigarettes are good for your health.

How far we have fallen…

Reading the point/counterpoint posts on the question of how the supreme court would decide on Obamacares constitutionality, was quite disturbing to me in several ways.

On the one hand I was heartened, because clearly both Brad and Doug are sane and rational folks with a reasonably solid background in both law and politics, and a foundational understanding of the constitution…

Of course, that only highlights how many people in this country are not.

Any reading of the constitution… of the very intent of the founding of this nation… makes it clear that our federal government is meant to be one of of limited and enumerated powers. If the government can mandate this, they can mandate anything. This is the fundamental argument about the necessity for a limiting principle to any government act.

And anyone who doesn’t want unlimited, unconstrained government can see that. Sadly, it seems that the idea of unlimited, unconstrained government is quite popular in some quarters… even with some supreme court justices.

The basic liberal/progressive/leftist argument for socialized medicine is “we should do this even if it IS illegal and unconstitutional, because it’s the right thing to do so the supreme court should uphold it”.

I.E. “It’s good because we want it, and therefore it should be legal because it is good; and we need to get rid of this whole “limited government” thing, because it gets in the way of us doing what is right and good.”

What I also find heartening is that both Brad and Doug both seem to have a good sense of all of this…

But that is also disturbing…

Because both of them seem to share the same actual opinion:

Both believe that Obamacare is ACTUALLY unconstitutional, and should be struck down…

…It’s just that Brad is cynical enough about the supreme court and the political aspects of the decision that he thinks enough justices will be able to argue themselves into ignoring the constitution and doing what they want to do, rather than what is right.

… and Doug believes that there’s a good possibility of that as well; he just has a bit more hope that they won’t.

… and if you look around the commentariat, that’s pretty much the split of positions that every other knowledgable observer has as well.

And if that isn’t disturbing to you, then you really have no idea what is going on, do you?

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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