On May 17, 2011 a Federal District Court Judge made a ruling that caught my interest, not the subject itself completely (though the subject still did catch my interest) but rather the rationale in the decision made. This decision was not based directly off of the Constitution itself for what it says, but rather off of previous courts decisions alone, using stare decisis. As I discuss in an article of stare decisis, stare decisis is prudent provided it used properly and in the correct manner and this is not a situation in which it was, by the Judges own admission in his opinion.
The background of this case concerns concealed weapons, the actual subject of the case is of actual little matter to my opinion here, rather it is his jurisprudence that I will examine. Yolo County CA banned concealed weapons, and a challenge was brought against the County citing 2nd Amendment protections.
The plaintiffs (contending the ban was unconstitutional) argued the same manner of interpretation should be applied to the Second Amendment as is the First Amendment (it is to protect maximum freedom of the subject). The Judges response to this was,
The Court sees no reason to analogize rights under the Second Amendment to those under the First, as plenty of case authority exists to provide a clear framework of analysis to facial challenges, without poaching precedent from another Amendment’s framework.
Not only was the Second Amendment drafted and ratified at the same time as the First Amendment, but all the Amendments of the Bill of Rights were. The motivation and goal of all the Amendments was the same, to place maximum protections on the most basic of rights. Since all were drafted using the same motivation, analyzing them from the prospective is only prudent and a consistent application of the Amendments.
Many arguments exist on the what extent these protections go to and whom they apply to, and discussing what those limits may be is not the object here and is not relevant in this discussion.
The Judge also made another comment in his opinion which essentially turns the Bill of Rights and the Constitution on its head.
Defendants, on the other hand, believe that the Second Amendment has never been interpreted as granting citizens the right to carry a concealed weapon in public,
The comment here of concern that turns the entire structure of power upside down is, “Amendment has never been interpreted as granting citizens the right”. This concept of the Bill of Rights or the Constitution in any manner as “granting citizens rights”, is completely contrary to the the structure of power the Constitution is assumed to be based off of, which is the people grant power and rights to government, not the other way around. This concept is alive and well in the Declaration of Independence in one of its most famous passages.
That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed
The Declaration of Independence declares rights flow to the people weather by nature or the creator, and that the people establish governments among themselves, and the government derives its power from the people, not the people from government.
The Judges notion and argument is contrary to the primary motivation behind the Second Amendment and Constitution, in that either grants rights to the people. The people are the possessor of all rights, and only grant powers to governments. This exact concern was addressed as a potential danger to the freedom of the people even before the Bill of Rights came into existence by Alexander Hamilton in Federalist 84.
Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
I go further, and affirm that the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Not only does Alexander Hamilton warn about the potential danger of enumerating rights as being a means to limit them to only the manner described, but also further justifies the notion of the people possessing all power it had not expressively granted to government, and not the other way around, “For why declare that things shall not be done which there is no power to do?” Hamilton goes on to use the concept of a free press as an example, but he contended this example could and should be applied to all rights not given to government, which included the ability to restrict firearms possession as was already specifically protected in numerous states at the time. These States bill of Rights including that of Virginia served as a base for the eventual US Bill of rights.
This notion of restrictions on government does not here with Alexander Hamilton in Federalist 84, but continues on and is found in the Bill of Rights itself in the preamble.
"The Conventions of a number of the States, having at the time of their adopting the Constitution expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution."
The Bill of Rights declares itself to be a document not a determining what rights the people have, rather it is a declaration of what rights must never be infringed on.
The Judge’s opinion in this case is completely contrary to the concept of the people being the original possessor of power, in that he contends and agrees to the notion of the Second Amendment granting power, and to the notion that the Second Amendment is a further declaratory restriction against government infringement, by once again declaring it is a right granting article instead.
The Judge never uses a full Constitutional clause in his entire opinion, but rather bases his judgment solely over previous case law, and uses this vice the actual Constitution itself as a justification for his opinion.
The Judge does not apply the Second Amendment to the same scrutiny as the First Amendment and contends it may be used as a restrictive article on the basis of it granting a right to the people, he justifies it as,
the policy does not create a total ban on carrying a firearm, such that the policy completely infringes on the rights
Though the Amendment makes no stipulation itself on limited infringement in the slightest, rather it states any infringement shall be prohibited.
He also contends
(the)country’s constitutional protections, the scope of rights under the Second Amendment is ambiguous and no doubt subject to change and evolution over time.
This also runs contrary to the Constitution itself, since the only means and method to change the Constitution is to Amend the Constitution as stated in Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments
An Amendment is the ONLY way to change the Constitution, not a Judge or a court. Without such a deliberate act of consent such as an amendment, this would end upwith no limits on what the actual Constitution itself means, and would render the Constitution useless, since it can no longer limit power.
The basic premise of the Constitution and the only way it can work as designed is to keep the power structure intact. That being the Constitution is designed acknowledging the people possess all the power. The Constitution is a granting document of power from the people to form a government, and that what ever power the people did not grant, they inherently reserve to themselves. To the view the Constitution in any manner that places government in a position to grant power or rights provided no limits on what government can do, since it was designed to specifically to say ONLY what they can do, and NOT what the people can’t do
http://www.abajournal.com/files/GunRuling.pdf
http://www.foxnews.com/us/2011/05/16/federal-judge-rules-calif-gun-advocates/
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