Wednesday, April 28, 2021

More thoughts on New York State Rifle & Pistol Association Inc. v. Corlett

I'm reading Carlton Larson's Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit from the Hastings Law Review and he's pretty much saying what I am saying. that is the US Supreme Court has pretty much said in the dicta to Robertson v. Baldwin, 165 U.S. 275 (1897) that "the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;"

The Court described exceptions to the Second Amendment in Heller as "presumptively lawful regulatory measures," and it is hard to imagine the Court invalidating them in a future case.' For all practical purposes, these issues have been decided-and decided in favour of constitutionality. And one of those exceptions was concealed carry with the statement "For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

As I pointed out earlier, one of those courts was the US Supreme Court. Even though that statement was made in the dicta to Robertson v Baldwin. If using the dicta in Dred Scott v Sanford is OK to establish this right, then using the dicta in another Supreme Court case should be more than acceptable to limit that right.

The problem is that DC v Heller was in no way a case of first impression with multiple statement such as this from Justice William O. Douglas, who was on the court when Miller was decided. He did a gloss of this Second Amendment jurisprudence in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972):

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“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.” Id., at 178-179.

But that was pretty much dicta even though it was from someone who was on the court when US v Miller was decided. US v. Cruikshank, 92 U.S. 542 (1875) wasn’t very helpful since it addressed private action, Cruikshank did point out that the Second Amendment was only a limitation on Congress' power under Article I, Section 8, Clause 16. But Presser v. Illinois, 116 U.S. 252 (1886) and US v. Miller, 307 U.S. 174 (1939) both made it clear that the Second Amendment related to the Militia. Presser pointed out that States had a definite interest in regulating the carrying of weapons:

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine

While the issue in Presser would go to the argument about the Second Amendment right applying to people who were not part of the organised/enrolled militia (what is now called the national guard). It does address the carrying of weapons outside of the militia, or common defence, purposes.

The US Supreme Court acted outside its powers in promulgating the Heller and McDonald decisions. First off, there is no constitutional provision for judicial review: that comes from Marbury v Madison. Unfortunately, there is also no recourse if the court starts creating law: especially when those decisions become political. 

Likewise, there is no constitutional limit as to how many justices may be on the court. The Constitution gives Congress the power to increase the number of Supreme Court justices, and it does not appear to restrict the reasons why Congress may increase that number. Thus, Congress may increase the number of Supreme Court justices, even if its purpose is to change how the Supreme Court resolves cases.

Justices Scalia and Alito may have thought that ignoring precedent and the constitution were acceptable, I believe Justice Coney Barrett may as well, but they may see their power diminished if the result is to politicise the court.

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