Category Archives: US Supreme Court

Shooting Schoolkids and mis-using the Second Amendment

The wording of the famous Second Amendment to the US Constitution is this:

"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".

My students and I saw it just a few days ago, the faded writing on the Bill of Rights displayed in the National Archives still visible. I was puzzled for a while, as in the document this is actually the fourth amendment, but it turns out the first two weren't ratified, thus pushing the famous arms amendment up to number 2 in the ranks.

I've read it a number of times, and it still seems to me that the so-called right to bear arms is very dependent on the maintenance of a militia to defend the state.  It is not, thus, an individual right at all.  It is very much a concession granted in the interests of state defence.

So how has this seemingly obvious interpretation become so sullied that the second amendment now becomes synonymous with individual freedom and democracy?  So ingrained into the American psyche as a key element of freedom that no matter how many kids are shot in schools, the right to buy any type of weapon for individual use can never be controlled?

It turns out this is a recent phenomenon.  And it's down to an organisation called the National Rifle Association, itself the front group for gun manufacturers.

As early as 1876 the Supreme Court ruled that the Second Amendment was not a granting of the right to bear arms (United States v Cruickshank).  A 1939 ruling (US v Miller) maintained the link between arms and a militia.  Only more recently has the Second Amendment been given such broad latitude as to imply a defence of the individual right to bear arms, most noticeably in the 2008 District of Columbia v Heller ruling.

It beats me how the so-called "originalists" - the right-wing judges who claim to adhere to the very wording of the constitution and its amendments - can possibly interpret the 2nd in any other way than the one written above - as the need to preserve a "well regulated" militia.  They say the commas should be ignored and that the two clauses, on militia and the right to bear arms, are not really linked.  Doesn't read that way at all, so I guess originalists are more like creativists after all.  Which is just one of the many tragic ironies of the gun control debate in America.

The NRA's chief, Wayne LaPierre, has given an uncompromising defence of arms in the wake of the Florida school killings, at the CPAC conference.  He trotted out the old line that all you need to stop bad men with guns is good men with guns.  Do lots of "good men" hold guns?  Would "good men" want to be always ready to shoot to kill I wonder?

The NRA has been so successful in its defence of the right to have guns - and thus the immediate use of a lethal killing machine right by your side as and when you want it - that it has radically altered the culture of America.  From the president down, dozens of lawmakers - nearly all Republican - dance to the NRA tune.  Not just because of NRA money, though some do receive lots of that, but because they have bought wholly in to a culture that now identifies the right to own the means to kill with freedom.

The kids who are campaigning so prominently and admirably for gun control now won't win.  Not yet anyway.  They're up against lawmakers who can witness any number of mass killings and still refuse to ban the one thing that cause them.  If they do want to change, they have to be in for the long haul.  That's what the NRA did, and they were so successful they even got Supreme Court Justices to re-interpret the second Amendment for them.  Money and culture is still powerfully behind gun possession in America, and don't expect it to change anytime soon.

Shooting Schoolkids and mis-using the Second Amendment

The wording of the famous Second Amendment to the US Constitution is this:

"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".

My students and I saw it just a few days ago, the faded writing on the Bill of Rights displayed in the National Archives still visible. I was puzzled for a while, as in the document this is actually the fourth amendment, but it turns out the first two weren't ratified, thus pushing the famous arms amendment up to number 2 in the ranks.

I've read it a number of times, and it still seems to me that the so-called right to bear arms is very dependent on the maintenance of a militia to defend the state.  It is not, thus, an individual right at all.  It is very much a concession granted in the interests of state defence.

So how has this seemingly obvious interpretation become so sullied that the second amendment now becomes synonymous with individual freedom and democracy?  So ingrained into the American psyche as a key element of freedom that no matter how many kids are shot in schools, the right to buy any type of weapon for individual use can never be controlled?

It turns out this is a recent phenomenon.  And it's down to an organisation called the National Rifle Association, itself the front group for gun manufacturers.

As early as 1876 the Supreme Court ruled that the Second Amendment was not a granting of the right to bear arms (United States v Cruickshank).  A 1939 ruling (US v Miller) maintained the link between arms and a militia.  Only more recently has the Second Amendment been given such broad latitude as to imply a defence of the individual right to bear arms, most noticeably in the 2008 District of Columbia v Heller ruling.

It beats me how the so-called "originalists" - the right-wing judges who claim to adhere to the very wording of the constitution and its amendments - can possibly interpret the 2nd in any other way than the one written above - as the need to preserve a "well regulated" militia.  They say the commas should be ignored and that the two clauses, on militia and the right to bear arms, are not really linked.  Doesn't read that way at all, so I guess originalists are more like creativists after all.  Which is just one of the many tragic ironies of the gun control debate in America.

The NRA's chief, Wayne LaPierre, has given an uncompromising defence of arms in the wake of the Florida school killings, at the CPAC conference.  He trotted out the old line that all you need to stop bad men with guns is good men with guns.  Do lots of "good men" hold guns?  Would "good men" want to be always ready to shoot to kill I wonder?

The NRA has been so successful in its defence of the right to have guns - and thus the immediate use of a lethal killing machine right by your side as and when you want it - that it has radically altered the culture of America.  From the president down, dozens of lawmakers - nearly all Republican - dance to the NRA tune.  Not just because of NRA money, though some do receive lots of that, but because they have bought wholly in to a culture that now identifies the right to own the means to kill with freedom.

The kids who are campaigning so prominently and admirably for gun control now won't win.  Not yet anyway.  They're up against lawmakers who can witness any number of mass killings and still refuse to ban the one thing that cause them.  If they do want to change, they have to be in for the long haul.  That's what the NRA did, and they were so successful they even got Supreme Court Justices to re-interpret the second Amendment for them.  Money and culture is still powerfully behind gun possession in America, and don't expect it to change anytime soon.

Democrats unappeased by Gorsuch choice

Democrats are in no mood to play nice with the Gorsuch nomination it seems.  I still maintain that since Gorsuch will be confirmed anyway, Democrats might want to hold their most lethal fire for the next one, who may not be as qualified or as easy to sell as a suitable Supreme Court Judge as the undeniably credible Gorsuch.  Nevertheless, after denied a vote on Merrick Garland, with Republican leaders McConnell and Grassley mounting a very effective year-long blockade, you can see why there is such anger on the Democratic side.  It can't be denied that Republicans have no moral authority on this issue at all.

For a sense of just how deep the anti-Trump anger runs, look at any post on Daily Kos.  Or have a read through this interview with New York Magazine's Frank Rich.  Rich was the most famous and feared theatre critic of his day and he has lost none of his punch when discussing - or writing about - politics.

Gorsuch's presentation by Trump reduced him to the "status of a supplicant at a corrupt royal court".

Trump was "using language you'd expect to hear from a Vegas lounge singer paying tribute to Frank Sinatra".

And on the wretched House Speaker Paul Ryan, Rich is especially sharp, describing him as "the leading Vichy Republican.  A coward who will do anything to hold on to power."

Meanwhile, Politico's report on the prime time presentation ceremony noted Trump's lack of apparent understanding of any of Judge Gorsuch's legal opinions.  The show was everything.   As, so far, seems to have been the case with the whole of this presidency thus far.


Can the Gorsuch nomination restore dignity to the Supreme Court process?



We simply don't have a similar institution in Britain.  Our own relatively new Supreme Court - a creation of Tony Blair's - received its first real bit of headline publicity with its deliberations on triggering Article 50, and acquitted itself perfectly soundly, providing a new and important constitutional document in the process.  But British citizens are unlikely to get too exercised by the UK's deliberately down-played Supreme Court.

It's a whole different matter in the United States.  The very pillars of the Court breathe remote majesty and authority through their brilliant white marbled stone.  The nine robed justices play such a significant role in the legal ante-room of American politics that they were once even charged with deciding the president of the United States.  It is said that candidate Trump paid most attention to the poll that said the Supreme Court was the single most important issue to them.

After eleven days of perhaps deliberately provoked chaos and division, President Trump's Supreme Court nomination looks positively statesmanlike and actually presidential.  The originalist nominee, Neil Gorsuch, is respected across the spectrum and is clearly a fine jurist with the capability of producing lucid, deeply thought out rulings.  He is no right-wing head-banger.  He speaks honeyed words when defending the law and the principle of an independent judiciary.  Even if you disagree with his broad legal philosophy, you get the impression that the integrity of the Court is safe in the hands of this man, this chosen successor to Justice Scalia.

Of course that isn't quite how this is playing, and the Republicans have only themselves to blame for that.  The unprecedented action of Senate Majority Leader McConnell and Judiciary Chairman Grassley has undeniably poisoned the atmosphere of Supreme Court nominations.  For Democrats, this is the "stolen" seat.  The one that Republicans held back when President Obama still had nearly a quarter of his last term to run.  If Neil Gorsuch is being garlanded with praise by Republicans and their ilk, is being spoken of as a great jurist, a man with previous support across the political spectrum, well then so was Merrick Garland similarly presented back in March of 2016.

This National Review article by Jim Geraghty is pretty typical of the paeans of praise to Gorsuch and damnation to oppositional Democrats currently being generated (this one too, from American Greatness, lays out the Republican case pretty clearly).  How stupid of the Democrats, how narrow-minded of them to want to oppose such a universally loved jurist as Judge Gorsuch.  But nearly everything in this article could have been written by a Democrat about Judge Garland too.  The Supreme Court process has become so politicised that neither side can give credence to any suggestion or nomination from the other.

But, you know, this was also Justice Scalia's seat.  Gorsuch's appointment simply maintains the old balance of the Court, with a man who undoubtedly deserves his nomination.  Democrats may be wise to row back from a dust-up over this one.  They may still be fuming over the Garland obstruction, but fighting Gorsuch would seem to be the wrong battle this time.  And maybe we should remind Democrats that they had their scalp long ago, back in 1987 when they successfully prevented Robert Bork's nomination.  The Republicans are simply catching up.

Gorsuch should be given tough questioning by the Judiciary Committee Democrats, but they might be willing to give the Supreme Court itself a chance to recover some much needed dignity by not invoking a filibuster here.  By submitting to Gorsuch's nomination, the Democrats can keep their moral high ground, leave the Court where it was before Scalia's death, and most importantly keep their more lethal ammunition in reserve for the nomination that truly matters.  The one to replace the first liberal to step down.

Despite himself, Trump has played this one well.  After an exhausting eleven days, plenty of people would thank the Democrats for not picking an unnecessary fight.