Rising Seas and Shrinking Islands

No, this is not a post about Global Warming™©®.

When I started seriously studying the topic of the right to arms back about 1993, it became apparent to me quickly that the Second Amendment to the Constitution was hardly the only “right of the people” under attack, it was just the most obviously and blatantly abused victim. I have, over the intervening years, read enough legal decisions to make my eyes bleed, and I have stopped being surprised by the mental gymnastics our black-robed betters go through, the logical pretzels they twist themselves into, in order to reach decisions that no honest reading of the law could support.

Now I’m surprised when a court gets it one right.

Randy Barnett’s 2004 textbook Restoring the Lost Constitution:  The Presumption of Liberty begins with a cite from John Marshall’s 1803 decision in Marbury v. Madison:

The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed?

Barnett continues in his introduction:

Since the adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power. This started early with the Necessary and Proper Clause, continued through Reconstruction with the destruction of the Privileges or Immunities Clause, and culminated in the post-New Deal Court that gutted the Commerce Clause and the scheme of enumerated powers affirmed in the Tenth Amendment, while greatly expanding the unwritten “police power” of the states. All along, with sporadic exceptions, judges have ignored the Ninth Amendment. As a result of judicial decisions, these provisions of the Constitution are now largely gone and, in their absence, the enacted Constitution has been lost and even forgotten.

And I would add, with the assistance of a public education system designed, as Henry Louis Mencken described it in the 1930’s,

…not to spread enlightenment at all; it is simply to reduce as many individuals as possible to the same safe level, to breed a standard citizenry, to put down dissent and originality


Schools are maintained in order to bring this uniformity up to the highest possible point. A school is a hopper into which children are heaved while they are still young and tender; therein they are pressed into certain standard shapes and covered from head to heels with official rubber-stamps.

So while the executive, the legislative and the judicial branches of government have been slowly, inexorably erasing the boundaries on the defined, limited scope of government as written in the Constitution, our schools have been busy cranking out generation after generation ignorant of what it is that is being taken.

Barnett continues:

Without these missing clauses, the general scheme of the Constitution has been radically altered, which is precisely why they had to go. The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted constitution creates islands of liberty rights in a sea of governmental powers.

My twenty-four-year study of the right to arms has shown me that radical alteration. I didn’t learn about it in primary school. I didn’t learn about it in high school. I didn’t learn about it in college. I learned it on my own, starting at about age 31.

When I started this blog, I detailed the history of the Second Amendment jurisprudence in one post from my online debate with an Irishman in London in The Blog that Ate Poughkeepsie, later expanded before the oral arguments in Parker v. D.C. as Of Laws and Sausages, and then slightly expanded upon again before the oral arguments in McDonald v. Chicago in Cut-‘n-Paste. With respect to the Second Amendment and the individual right to arms, it was the Fourteenth Amendment’s Privileges or Immunities Clause mentioned by Barnett that had to be destroyed in order to gut that right; and even now, that clause is still dead. Witness this exchange between Alan Gura and Justice Scalia during the oral arguments in McDonald:

Scalia:  Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due? Is it easier to do it under privileges and immunities than it is under substantive due process?

Gura:  It is easier in terms, perhaps, of — of the text and history of the original public understanding of —

Scalia:  No, no. I’m not talking about whether — whether the Slaughter-House Cases were right or wrong. I’m saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?

Gura:  Justice Scalia, I suppose the answer to that would be no, because —

Scalia:  Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you are bucking for a — a place on some law school faculty — What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.

This from a Justice who has made his dislike for “substantive due process” known ever since he’s been on the bench:

I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs.

Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law.

It’s one thing for a state to amend it’s libel law and say, “We think that public figures shouldn’t be able to sue.” That’s fine. But the courts have said that the First Amendment, which never meant this before, now means that if you are a public figure, that you can’t sue for libel unless it’s intentional, malicious. So that’s one way to do it.

Another example is the Constitution guarantees the right to be represented by counsel. That never meant the state had to pay for your counsel. But you can reinterpret it to mean that.

That was step one. Step two, I mean, that will only get you so far. There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

What substantive due process is is quite simple – the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

What difference does it make whether there’s 140, 150 years of prior law if the precedent is WRONG, if the court used bad decisions to reduce the enumerated limits on government power in contravention of the written Constitution?  Scalia also said elsewhere:

I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that’s what it says, that’s what it says.

[N]o government official is “tempted” to place restraints on his own freedom of action, which is why Lord Acton did not say “Power tends to purify.” The Court’s temptation is in the quite opposite and more natural direction –- towards systematically eliminating checks upon its own power; and it succumbs. Planned Parenthood v. Casey, 505 U.S. 833, 981 (1992)

If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it – the original meaning of the Constitution – I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury – once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society.

Apparently, he’s not so handcuffed about other things, though.

In September of 2011 the Indiana Supreme Court handed down its decision in Barnes v. Indiana, declaring not only that there is no right to reasonably resist an unlawful entry and search by police, but that “Indiana no longer recognizes a common law right to resist police.” This case joins numerous other cases, both state and federal, along the same lines – expanding police powers and gutting the protections of the Fourth Amendment against “unreasonable search and seizure.” I’ve noted several of these here myself. Examples like the Fifth Circuit Court of Appeals’ 2004 decision in U.S. v Gould, where the court found that searching without a warrant the residence of a known felon suspected of planning to kill two judges was not a violation of the Fourth Amendment. I wrote about this case at length in The Road to Hell is Paved with Good Intentions, a quote taken from one of the dissents, and an essay having much in common with this one. The full cite from that dissent goes:

In summary, the Fourth Amendment is the keystone that holds up the arch of our Bill of Rights which in turn is the unique contribution of our founding fathers to our system of government which has now survived longer than any other representative government in the world. In his famous dissent in Olmstead v. United States, Justice Brandeis called privacy – which he defined as: “the right to be let alone” – “the most comprehensive of rights and the right most valued by civilized men.” Justice Brandeis argued that the framers knew that Americans wanted protection from governmental intrusion not only for their property, but also for their thoughts, ideas and emotions. Take away the Fourth Amendment and the right of privacy disappears.

The deputy sheriffs here in Gould made no attempt to develop a sworn affidavit in writing from the purported informant, Forehand, and they therefore made no attempt to get either a search warrant or an arrest warrant from an independent third party magistrate on the basis of probable cause. I have no doubt that the deputy sheriffs believed that they were acting reasonably and with good intentions. But the old adage warns us that “the road to hell is paved with good intentions.” In my judgment, that is precisely where the majority opinion wants to put us – by unhooking the “protective sweep” from its connection with the execution of an arrest warrant in a home, which is where the Supreme Court framed the concept. In my view the gambit of getting permission to enter a citizen’s home in order to talk to someone and then conducting a protective sweep search under the guise of sensing danger to the investigating officer will effectively eliminate the need for complying with the Fourth Amendment and at that point we will all be, literally and figuratively, on the road to hell.

We were told, immediately afterward, that this new power “would be used judiciously.”

Well, that’s OK then. 

After Barnes v Indiana we were given an example of what kind of “judicious use” to expect by an Indiana Sheriff:

According to Newton County Sheriff, Don Hartman Sr., random house to house searches are now possible and could be helpful following the Barnes v. STATE of INDIANA Supreme Court ruling issued on May 12th, 2011. When asked three separate times due to the astounding callousness as it relates to trampling the inherent natural rights of Americans, he emphatically indicated that he would use random house to house checks, adding he felt people will welcome random searches if it means capturing a criminal.

Judicious, eh?

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