News Americas, NEW YORK, NY, Thurs. Mar. 29, 2018: This week, among many Trump tweets, was one about the Supreme Court and the Second Amendment. It is the subject of this week’s episode.
Who is the most powerful person in the United States? Wrong; not him!
The most powerful person in the United States is not the President; it is the swing voter in pivotal 5-4 Supreme Court decisions, in which important national issues are decided by a single un-elected life time political appointee, commonly known as Supreme Court Judges, who make decisions based on their own partisan and often extreme political views. Not always, but too often!
There are many such Supreme Court decisions. Based on your own political views, some of these 5-4 decisions are wonderful but others terrible. A particularly egregious example is a 9-0 decision by the Supreme Court that later was over ruled by a 5-4 decision, though 47 years later by a 5-4 vote. That result completely changed the dynamics of gun legislation in the United States.
That would be impossible, except that the Supreme Court is dangerously flawed and we suffer the consequences of political “justice.” NOT real justice.
This 5-4 Supreme Court decision conundrum is a fatal problem without any apparent solution, or is it? Let’s find out if it is hopeless.
As for President Trump’s Tweet on Wednesday morning, it was an attack on former Supreme Court Justice John Paul Stevens opinion piece in the New York Times on Tuesday, simply title: “Repeal the Second Amendment.”
Unfortunately, Judge Stevens’ so called solution is impossible, and an illogical response to the 5-4 decision in 1986, that negated the logical and correct view of the Second Amendment throughout American history confirmed by the Supreme Court’s completely unambiguous 9-0 decision in 1939.
Back in 1939, by its 9-0 vote the Supreme Court, confirmed the Federal government had the absolute right to prohibit ownership of the assault weapon of that time – the shotgun. What that decision did was much more far reaching, confirming the legitimate meaning of the Second Amendment.
It is time to look back at that 1939 Supreme Court decision.
As Justice Stevens states in the NY Times: “In 1939, the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well-regulated militia.”
The pivotal meaning of the Second Amendment!!!!!!
Encore …. “because that weapon had no reasonable relation to the preservation or efficiency of a “well-regulated militia.”
As we all know, the phrase “well-regulated militia,” is an essential part of the Second Amendment – correction – always was until 1986 and one swing vote on the Supreme Court, which “rewrote” the Second Amendment. The Supreme Court has NO right to rewrite the United States Constitution.
Take a look at the 1939 Supreme Court ruling …
“The Constitution, as originally adopted, granted to the Congress power …
“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
“With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”
The Supreme Court clearly ruled in 1939 that the right to bear arms is for the purposes of maintaining a well-regulated militia, and that laws and regulations concerning ownership and use of fire arms must be within this context.
In their 9-0 decision, the idea that anyone can own as many weapons of any kind they wish no matter how lethal and having nothing at all to do with any legitimate militia or any purpose and that those weapons do not even have to be registered with the government, would have been absurd until 1986.
The 1939 decision goes on to state …
“The Militia, which the States were expected to maintain and train, is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia — civilians primarily, soldiers on occasion.
“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.
“These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
The issue is crystal clear. An American who serves in any state militia has a Constitutional right to own and possess approved fire arms under the supervision of the state militia. No one else has a Constitutional right to arms.
In fact, under the U.S. Constitution both the Federal government and the individual states have an obligation to carefully regulate the ownership and use of fire arms. Not to completely prohibit them but to carefully regulate them so that their Constitutional purpose is preserved. To do so by definition fire arms must be registered universally across the nation or the government has no means to regulate them. It does not allow some states to register fire arms, but other states not to do so.
Further, since the ultimate purpose of the Second Amendment is clearly to provide for a “well-regulated militia,” only individuals of sound mind and a personal history that will make them eligible to serve in a “well-regulated militia,” qualify to serve, so it is inherently necessary that those who are approved to own fire arms must also be registered or licensed or else they cannot be judged as qualified or not for a militia is called upon to serve.
So what happened in 1986 to completely “rewrite” the Second Amendment WITHOUT the use of the only means allowed under the Constitution to amend any part of the Constitution?
What happened is a Supreme Court decision in 1986 based on a 5-4 split decision, that magically negated the earlier 9-0 Supreme Court decision. What changed? The individuals serving on the Supreme Court changed.
What happened is that just 5 unelected Americans decided to change the U.S. Constitution. That sure is completely illegal. Yes, I know the retort what about decisions like Brown vs. Bd. Of Education, that over-ruled “separate but supposedly equal schools” for White Americans and Black Americans.
The difference makes all the difference!
The Supreme Court changing previous decisions that were blatantly racist and discriminatory is completely different than the Supreme Court over-ruling a very logical decision about the Second Amendment that is crystal clear.
Back to former Supreme Court Justice Stevens in The New York Times …
“For over 200 years after the adoption of the Second Amendment, it was uniformly understood as not placing any limit on either federal or state authority to enact gun control legislation. In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well-regulated militia.”
The difference in 1986 is the number of right wing extremists appointed to the Supreme Court by right wing U.S. Presidents, using the Supreme Court as nothing more than as part of their blatantly partisan political machines.
The Supreme Court is broken. Yes, it still makes some very well-reasoned decisions that conform with the mandates of the Constitution, as in the recent Pennsylvania Congressional districts map decision. At the same time, almost always by 5-4 rulings, the Supreme Court also issues blatantly wrong decisions.
Decisions like the 1986 decision 5-4, that equated unrestricted fire arm ownership with “freedom of speech,” and also completely ignoring the wording and meaning of the Second Amendment, ignoring the essential “well-regulated militia,” part which served the country so well for 200 years.
Justice Stevens opinion piece is very useful but his so called solution is not. It is not realistically possible nor necessary nor logical to repeal the Second Amendment. The Second Amendment is fine as it is when it is legally interpreted by the Supreme Court.
There should be even better solutions but here in the real world the ONLY answer is to elect progressive candidates to Congress and the Presidency most of all who will appoint and approve Supreme Court Justices who respect and understand the meaning and purpose of the Second Amendment.
We can begin by getting rid of this Right Wing Republican Congress this year and most of all banishing Donald Trump from the Presidency in 2020.
This is not a perfect or permanent solution, but it is quite possible and far more realistic and much better than what Justice John Paul Stevens proposes.
As for President Trump’s tweet Wednesday that he is a strong supporter of the Second Amendment, that is just more Fake News from Trump. Trump supports a fraudulent unConstitutional view of the Second Amendment.
The sooner Donald Trump’s views do not matter at all, the better for us all.
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(This entire series is dedicated in honor of the late Liu Xiaobo)