MCViewPoint

Opinion from a Libertarian ViewPoint

Posts Tagged ‘Heller’

Merrick Garland really is anti-gun: Column

Posted by M. C. on January 20, 2021

Today the USAToday, in one of it’s guises as the Erie Times-News, is singing Garland’s praises.

The Harris…err…Biden administration plan is coming to fruition.

https://www.usatoday.com/story/opinion/2016/05/01/merrick-garland-guns-supreme-court-second-amendment-column/83670044/

Michael E. Hammond

Supreme Court nominee had 4 chances to vote against gun rights, and he took them all.

The usual gaggle of anti-gun suspects has come out of the woodwork to attack the “gun lobby” for its opposition to any action on behalf of Supreme Court nominee Merrick Garland.

Hand guns for sale in Mesa, Ariz.

Coupled with their typical protestations that their attacks on Second Amendment advocates are not attacks on the Second Amendment itself, their words are laden with half-truths and selectively culled “facts.”

But the truth is simple. Second Amendment issues have come before Garland, at least four times. He voted anti-gun every time.

In 2007, Garland was one of four judges on the District of Columbia Circuit who voted for the full court to rehear a pro-gun holding of a three-judge panel overturning Washington’s draconian gun ban in District of Columbia v. Heller.

And, yes, although Garland was joined by A. Raymond Randolph, appointed by George H.W. Bush, Garland’s vote was not merely a matter of intellectual curiosity. A comparable case, Seegars v. Gonzales, was decided differently two years earlier by an anti-gun panel of the same court. That time, Garland voted against a rehearing by the full court.

In 2000, Garland voted to allow the FBI to retain background check records well beyond the immediate destruction required by the Brady Law. I drafted the original version of the Smith Amendment that prohibits the FBI from keeping such records and taxing gun transactions that require a background check, which was in effect at the time. And, as the draftsman, I can tell you that Garland’s position was contrary to statutory law.

Finally, in 2012, Garland voted to allow prosecution (with a 30-year mandatory minimum sentence) of automatic firearms offenses without the prosecutor having to prove the accused knew the weapon was automatic, known as a showing of mens rea or a guilty mind, a requirement common in criminal law.

We know that with his anti-gun record, Garland would be the “swing vote” on the Supreme Court with respect to the 5-to-4 Heller decision and the subsequent McDonald decision that extended it. These cases recognized that the Second Amendment applied to individuals and to states.

We also know that Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer have called for reconsideration of Heller — both from the bench in the McDonald dissent and, in the case of Kagan, in a public speech. Whatever the unanimous Supreme Court rejection of a Massachusetts court ruling that upheld the state’s stun gun ban meant, it surely does not mean that these four justices have suddenly reversed their narrow reading of the Second Amendment.

If Garland were perfectly consistent with our views on every other issue, the possibility that the Supreme Court would fundamentally rip the Second Amendment from the Constitution would be enough to justify our position.

Some argue that it is somehow either a matter of precedent or a matter of “decorum” to give Garland a hearing or at least a vote, a point made last week by the conservative former senator Tom Coburn of Oklahoma. But in an era where the court has turned itself into a super legislature, the Senate clearly has not only the right but also the obligation to block any nominee who would further that usurpation of power.

I was general counsel to the Senate Steering Committee — the Senate’s conservative Republican caucus — during the Bork nomination. I can tell you that both Robert Bork and Clarence Thomas were crucified by the Senate. With the balance of the court at stake, Senate Democrats would have done anything they thought would be helpful (and politically doable) to stop either of the nominees.

Finally, the argument has been made recently that, on the D.C. Circuit, Garland and John Roberts voted together on 85% of the 34 cases they shared. I’m not sure that conservatives are thrilled about the prospect of another “John Roberts” on the court. Setting that aside, the fact is that a substantial majority of lower court cases revolve around narrow questions of fact and law.

Because the Supreme Court largely selects its docket, the percentage is lower with them. But even with the Supreme Court, 66% of the cases were decided by a 9-0 decision in the 2013-14 term (40% in 2014-15), and only about 15% of the outcomes were 5-4 (26% in 2014-15).

Put another way: Because not all 5-4 splits are strictly ideological, one or more conservatives voted with one or more liberals in more than 85% of Supreme Court decisions in 2013-14. Yet, despite the fact that all liberal and conservative justices agree (unanimously) up to two-thirds of the time, it is the blockbuster cases where the difference between Ginsburg and Antonin Scalia matters.

So, yes, the gun lobby will continue to support the Second Amendment and oppose the Garland nomination. And, yes, Democrats in tight Senate races in pro-gun states might want to keep this in mind.

Michael Hammond, general counsel of Gun Owners of America, is the former executive director of the Senate Steering Committee. 

Be seeing you

Posted in Uncategorized | Tagged: , , , | Leave a Comment »

In Defense of the Right – LewRockwell

Posted by M. C. on January 18, 2020

There is a reason why Antifa, communists and progressives like governor Northam of Virginia want to limit your rights. Especially defense from government violence.

facebook_1568111427238.jpg

And that right implies the right to defend life — the right to self-defense. If I am about to assault you in the nose, you can duck, run away or punch me first. If I am about to strike your children, you can strike me first. If I am about to do either of those things with a gun, you can shoot me first, and no reasonable jury will convict you. In fact, no reasonable prosecutor will charge you.

The reason for all this is natural. It is natural to defend yourself — your life — and your children. The Framers recognized this right when they ratified the Second Amendment. They wrote it to ensure that all governments would respect the right to keep and bear arms as a natural extension of the right to self-defense.

In Defense of the Right

The Ash Wednesday massacre at Marjory Stoneman Douglas High School in Parkland, Florida, seems to have broken more hearts than similar tragedies that preceded it. It was no more senseless than other American school shootings, but there is something about the innocence and bravery and eloquence of the youthful survivors that has touched the souls of Americans deeply.

After burying their dead, the survivors have mobilized into a mighty political force that loosely seeks more laws to regulate the right to keep and bear arms. The young people, traumatized and terrified with memories of unspeakable horror that will not fade, somehow think that a person bent on murder will obey gun laws.

Every time I watch these beautiful young people, I wince, because in their understandable sadness is the potential for madness — “madness” being defined as the passionate and stubborn refusal to accept reason. This often happens after tragedy. After watching the government railroad Abraham Lincoln’s killer’s conspirators — and even some folks who had nothing to do with the assassination — the poet Herman Melville wrote: “Beware the People weeping. When they bare the iron hand.”

It is nearly impossible to argue rationally with tears and pain, which is why we all need to take a step back from this tragedy before legally addressing its causes.

If you believe in an all-knowing, all-loving God as I do, then you accept the concept of natural rights. These are the claims and privileges that are attached to humanity as God’s gifts. If you do not accept the existence of a Supreme Being, you can still accept the concept of natural rights, as it is obvious that humans are the superior rational beings on earth. Our exercise of reason draws us all to the exercise of freedoms, and we can do this independent of the government. Stated differently, both the theist and the atheist can accept the concept of natural human rights.

Thomas Jefferson, who claimed to be neither theist nor atheist, wrote in the Declaration of Independence that all men are created equal and are “endowed by their Creator with certain unalienable Rights.” Such rights cannot be separated from us, as they are integral to our humanity. Foremost among our unalienable rights is the right to life — the right to be and to remain alive.

And that right implies the right to defend life — the right to self-defense. If I am about to assault you in the nose, you can duck, run away or punch me first. If I am about to strike your children, you can strike me first. If I am about to do either of those things with a gun, you can shoot me first, and no reasonable jury will convict you. In fact, no reasonable prosecutor will charge you.

The reason for all this is natural. It is natural to defend yourself — your life — and your children. The Framers recognized this right when they ratified the Second Amendment. They wrote it to ensure that all governments would respect the right to keep and bear arms as a natural extension of the right to self-defense.

In its two most recent interpretations of the right to self-defense, the Supreme Court characterized that right as “pre-political.” That means the right pre-existed the government. If it pre-existed the government, it must come from our human nature. I once asked Justice Antonin Scalia, the author of the majority’s opinion in the first of those cases, called the District of Columbia v. Heller, why he used the term “pre-political” instead of “natural.” He replied, “You and I know they mean the same thing, but ‘natural’ sounds too Catholic, and I am interpreting the Constitution, not Aquinas.”

With the Heller case, the court went on to characterize this pre-political right as an individual and personal one. It also recognized that the people who wrote the Second Amendment had just fought a war against a king and his army — a war that they surely would have lost had they not kept and carried arms that were equal to or better than what the British army had.

They didn’t write the Second Amendment to protect the right to shoot deer; they wrote it to protect the right to self-defense — whether against bad guys, crazy people or a tyrannical government bent on destroying personal liberty.

In Heller, the court also articulated that the right to use guns means the right to use guns that are at the same level of sophistication as the guns your potential adversary might have, whether that adversary be a bad guy, a crazy person or a soldier of a tyrannical government.

But even after Heller, governments have found ways to infringe on the right to self-defense. Government does not like competition. Essentially, government is the entity among us that monopolizes force. The more force it monopolizes the more power it has. So it has enacted, in the name of safety, the least safe places on earth — gun-free zones. The nightclub in Orlando, the government offices in San Bernardino, the schools in Columbine, Newtown and Parkland were all killing zones because the government prohibited guns there and the killers knew this.

We all need to face a painful fact of life: The police make mistakes like the rest of us and simply cannot be everywhere when we need them. When government fails to recognize this and it disarms us in selected zones, we become helpless before our enemies.

But it could be worse. One of my Fox News colleagues asked me on-air the other day: Suppose we confiscated all guns; wouldn’t that keep us safe? I replied that we’d need to start with the government’s guns. Oh, no, he said. He just meant confiscation among the civilian population. I replied that then we wouldn’t be a civilian population any longer. We’d be a nation of sheep.

Be seeing you

antifa

The ISIS head chopper look. Cultural appropriation!

 

 

 

 

Posted in Uncategorized | Tagged: , , , , , , | Leave a Comment »