Marbury v Madison or why the Heller and McDonald decisions are wrong

Scalia fucked it.

I'll say it again. Scalia fucked it as does anyone who buys into the bullshit which is comprised by the Heller and McDonald decisions.

In fact, those decisions should be laughed at and any academic who is shit for brains enough to give them the slightest credence should be barred from the practise of law since they ignore a fundamental basis of US Constitutional law.

Marbury v. Madison, 5 U.S. 137 (1803).

It's one of the first cases any constitutional law class covers, which is why anyone who gives Heller and McDonald a shred of legitimacy should be barred from the practise of law. Why? First off.

Marbury v. Madison, 5 U.S. 137, was a U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution.

Judicial review for constitutionality is not a power granted by the US Constitution: it comes from this case.

More importantly it centred around a clause in the US Constitution (hint, hint, for those shit for brains who want to call themselves "Constitutional Scholars").

 Facts of the case

Thomas Jefferson defeated John Adams in the 1800 presidential election. Before Jefferson took office on March 4, 1801, Adams and Congress passed the Judiciary Act 1801, which created new courts, added judges, and gave the president more control over appointment of judges. The Act was essentially an attempt by Adams and his party to frustrate his successor, as he used the act to appoint 16 new circuit judges and 42 new justices of the peace. The appointees were approved by the Senate, but they were not valid until their commissions were delivered by Secretary of State James Madison.

The whole thing hinged on the interpretation of the US Constitution: in particular the clauses in it: 

"These are the clauses of the Constitution and laws of the United States which affect this part of the case." 

"Although that clause of the Constitution which requires the President to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed remains the same as if in practice the President had commissioned officers appointed by an authority other than his own." 

"It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States." 

The most important passages:

"f it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction."

"It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it. " 

So, Heller and McDonald got it wrong. McDonald doubly so since the historic record shows that the Second Amendment is tied to congress' power under Article I, Section 8, clause 16: to arm the militia. That relates to power granted to the Federal government, not the states.

The bottom line: Marbury v Madison found that no clause in the constitution is without effect. It also found that the courts had the power to review cases.

That poses two dilemmas if the court wishes to ignore this case.  This is especially true if one is an originalist who believes that "the judicial interpretation of the constitution which aims to follow closely the original intentions of those who drafted it." The people who drafted the Constitution were around when this case was decided. the Madison in question was James Madison: the person who drafted the Constitution.

John Marshall, who wrote this decision, was also involved in the creation of the US Constitution.

So, the founders believed that no clause in the constitution was to be without effect. 

To put it plainly: the people who wrote the constitution said that no clause was to be without effect.

That means what Scalia and similar ignorant shits for brains called "preferatory"  is indeed significant. This points to the ablative absolute construction being the more likely explanation.

That means that the "preferatory" clause of a "well-regulated militia being necessary for the Security of the Free State" is indeed the reason "for the right of the people to keep and bear arms not being infringed." That also fits in to the Constitutional frame work mentioned in the preamble: in particular the common defence.

I would also add that neither Heller nor McDonald were cases of first impression. Heller and McDonald are egregious in their failure to properly address the case law prior to their ultra vires act of amending the contsitution. Any proper decision would have to take into account Presser v. Illinois, 116 U.S. 252 (1886) as well as  US v. Miller, 307 U.S. 174 (1939). US v. Cruikshank, 92 U.S. 542 (1876) is short and only points out the connection to Article I, Section 8, clause 16. But all those cases point out that the right is related to the active militia and Article I, Section 8, clause 16.

So, Scalia was right: US v Miller wasn't helpful since it contradicted the result he wanted to achieve.[1] Which is the case for all the case law and the text of the US Constitution. That means the Heller and McDonald decisions are ultra vires in addition to failing to adhere to the rule of law.

I would be highly embarrassed to be associated with these decisions. Justice Roberts should figure out some serious damage control unless he wants his reputation marred by these harmful decisions.

That is because of the harm caused to the public by ripping the Second Amendment from the constitutional framework.

So, yes, I do hold you in contempt for your failure to follow the document you swore to uphold. You should be laughed off the bench for this serious error of judgement.

One that anyone who has seriously studied constitutional law should not make.

see also:

• Guns and Grammar: the Linguistics of the Second Amendment.
• Judicial Review or Judicial Activism? Marbury v. Madison (1803) 
• C-SPAN Landmark Cases | Marbury V Madison  
• Against Judicial Supremacy: The Founders and the Limits on the Courts
• The Court and Constitutional Interpretation

Footnotes:

[1]  US v Miller said:

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.

Justice McReynolds used different terminology than calling it "preferatory" and "operative", but that is EXACTLY what he is talking about.