Tom Burrell

Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. ---- (2014), available at http://ssrn.com/abstract=2374985

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August 2016
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  • I enjoy gun rights and the right to bear arms.  But I will not put my faith in the Supreme Court to protect that right.  I know what the Supreme Court does to “rights” including those in the Bill of Rights and other parts of the Constitution.  For the last seventy-five years, the Supreme Court has been an ideology center driving progressive values in the name of the Constitution.  Notwithstanding recent outlier opinions, Heller and McDonald, individual gun ownership is not one of those progressive values protected by the Court’s typical jurisprudence.

    “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.”

    With the loss of Justice Scalia, the pillar of the Court’s conservative wing, how long will it be before the Supreme Court reevaluates the Second Amendment as a protection for the individual’s right to bear arms?  The modern Supreme Court has shown no restraint from manipulating constitutional language that had never been used, and was never intended to be used, in a given manner to invent a new “constitutional” doctrine—thereby invalidating dozens of state laws and disenfranchising the American people in the process.

    The Court’s interpretation of “Due Process of Law,” for example, extends far beyond a mechanism to protect the rule of law from arbitrary executive or judicial action.  Courts have extended it to invalidate legislation itself.  Courts invented “substantive due process,” which allows the judge to determine whether the law is valid based upon his or her subjective perception of whether the enacted law is fair, reasonable, or socially just.

    Under the Court’s control, the Fourteenth Amendment’s “Equal Protection of the Law” became “protection of equal laws”—which is the not-so-slight difference between applying the law fairly and fully on the one hand and a substantive equality provision for the judge (not the legislators) to subjectively determine whether the law is fair, reasonable, and bestows equal dignity and respect to all divisions of society on the other hand.  If the law does not meet with the judge’s approval, it is unconstitutional.  The constitutional right to privacy and right to abortion were invented without any constitutional basis or supporting text.

    The drive against guns will work its way into judicial ideology to present new challenges to individual gun ownership.   Recent events illustrate the anti-gun agenda.  A radical Muslim enters a high-attendee event and executes individuals in the name of Islam.  The response by a certain segment of society is to identify the act not with terrorism but with “gun violence.”  The main stream media: “we have a gun problem in America.”  An individual associating with Black Lives Matter ambush-kills five cops in Dallas and certain segments of society seem to believe that the gun he used committed the crime on its own, the gun made him do it.  It was all about the gun used.  There’s no further look into the hate-filled ideology within those movements.

    When this anti-gun ideology enters the courts, the Supreme Court will overhaul the historic meaning of the individual’s right to bear arms.  The Court will bury the positive text of “people keep and bear arms” with militia membership and deprive the Amendment from protecting individuals’ right to bear arms.  This reading will prevent individuals living in localities like Chicago, DC, and New York, and other cities with stringent gun control tendencies, from protection.

    With a militia-reading of the Second Amendment, gun owners will no doubt react with the concern “what about self-defense.”  The courts will say that the Amendment has nothing to do with self-defense.  Progressive advocacy groups will likely retort with statistics that individual gun ownership does not correlate with self-defense.  “In fact more individuals and home owners are likely to be harmed by their guns than they are to use those guns in self-defense.”   The anti-gun craze may even persuade the Court to find a negative or prohibition of an individual’s gun rights in the Second Amendment.  The negative would be something along the lines of because the right to bear arms is limited to militias and because individual gun ownership is unsafe, the modern Second Amendment prevents the federal government and each and every state from allowing its citizens to own guns.  The Court’s new interpretation of the Second Amendment would mean that only military and government officials are permitted to own guns.  State and local laws permitting individuals and homeowners from owning guns are unconstitutional.

    The above-described path is perfectly consistent with modern Supreme Court judicial activism.  Rights are invented and destroyed at the Court’s outcome-driven whim.  The Court has radically redefined our federal and state governments under interpretations of the incorporated First Amendment, the Fourth Amendment, the Fifth Amendment, the Eighth Amendment, and the Fourteenth Amendment.  I don’t mean questionable or reasonable interpretations; I mean living, breathing, we-own-the-country interpretations.  Many judicially created rights should have been evaluated, adopted, or discarded through Article V or at least through legislative means.  But our society has seemingly accepted the notion to “let the courts sort it out.”

    So beware of putting your faith in the Second Amendment.  The likelihood of the Supreme Court continuing to protect the individual right to bear arms is slim, in my humble opinion.  In fact, it may come down to the 2016 election.  Several justices are 80ish.  Both Heller and McDonald were 5-4 decisions.  If the Democrats win the election, there will probably be several new justices nominated and appointed to the Court.  One of the major goals of the progressives will be neutralizing the Second Amendment from blocking gun control laws.

    Charles: “What would happen if guns were banned in America?”
    Lucy: “Statistics show that most violence is committed by guns.  Banning guns will end gun violence.”
    Charles: “With a ban, the law-abiding would not have guns and the criminals, thugs, and terrorists would.”
    Lucy: “No, the ban would apply to all, equally.”
    Charles:  “But terrorism and murder are against the law now.  Don’t you think that the criminal, thug, and terrorist will violate the ban just as they violate every other moral or legal command?  Further, the law-abiding will comply with the ban.  Thus, you’ve disarmed the good guys and declared open-season on them.”
    Lucy: “I hadn’t thought about that…but guns are bad.  Wouldn’t we all be better off if there were fewer guns?  Most gun violence is probably committed by guns that were purchased legally. Banning guns is good.  There will be less gun violence.  I don’t think police should be able to carry guns.”
    Charles:  “Did the ‘War on Drugs’ prevent the availability of drugs?  Did Prohibition prevent the availability of alcohol?  Do you want the police to be armed with only a whistle?”
    Lucy: “What about other countries where guns are banned and crime is lower?”
    Charles: “Good point, but apples and oranges.  Other countries do not have our ethnic struggles.”
    Lucy: “Violent crime is a problem for all communities.”
    Charles: “We finally agree on something.”
    Lucy: “Fewer guns means less gun violence.”
    Charles: “You can ask me for my gun when you demonstrate that no one else has a gun or there is no need for a gun.”

     

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