Supreme Court and the 2^nd Amendment

Richard J. Garfunkel

8-11-16

Speaking of the Constitution, I have been reading how the Right-Wingers are the last bastion to avoid the shredding of the Constitution.  I answered one of these arm chair geniuses!

It is interesting how the right-wing dunderheads are now experts on the US Constitution. I am always amazed when the average citizen starts to opine on Constitutional Law.  I’m sure that these “novitiate” experts know the difference between “Strict Construction,” and “Loose Construction.” Of course they know the history and the impact of Marbury v Madison, Dartmouth College v Woodward, McCullogh v. Maryland. Of course, they understand the nuances of the Heller Decision or McDonald V. Chicago? Maybe they understand the impact of Scalia and the 5-4 decisions on gun ownership, and the fact that in the “strict” analysis of the Founder’s debates on the Bill of Rights, there is no mention of the right of an individual to own a firearm.

 In other words, it wasn’t discussed.  But these brilliant “legal beagles” would know that the compromise on the Constitution was over the fear of a Federal “standing” army, and thus the rights of the states to organize their militias. In fact, few people could afford to own arms in 1789, and when the Militia “mustered” arms were passed out and strictly regulated and returned. There is nothing said about individual firearms or the innate right to own them.  Maybe that is how Justice Scalia saw it, but there have always been gun control laws from Dodge City to the Firearm’s Act of 1934. Or if you need clarification, read about the Hughes Act. If anyone was a “loose Constructionist,” it was Justice Scalia, who re-wrote the “originalists” concept of gun ownership.  But, if you don’t believe me, read Federal Period historian, Professor Carol Berkin’s book, “A Brilliant Solution,” Inventing the American Constitution. While you are at it, maybe you should be curious about “search and seizure,” Fourth Amendment Rights, and then learn the meaning of Escobedo v. Illinois, and Miranda v. Arizona.

Why don’t you write Professor Yale Kamisar at the University of Michigan Law School , who co-authored the “Criminal Justice in Our Times,” and is the co-author of the definitive American law school text book, “Modern Criminal Procedures,<” in its 12^th edition.  But, what about your expertise on schools, starting with the impact of Plessy v Ferguson, to the Rowley Case, Myers v Nebraska to Brown v. Board of Education of Topeka? Maybe you understand the “free exercise” clause and the “exclusionary rule?”

But what of executive power and orders.  Maybe folks believe that President Obama has used his Executive Orders to violate the Constitution. Well Obama’s EOs were 244, the lowest for a two-term president since William McKinley. You maybe interested in the fact that here are the following list of Executive Orders going back to FDR: Bush 43 291, Clinton 364, Bush 41 166, Reagan 381, Carter 320, Ford 169, Nixon 346, Eisenhower 484, Truman 907, and FDR 3721.  By the TR used the EO 1083 times. But you are protecting the Constitution!