Debate Magazine

Cutting the Baby in Half

Posted on the 30 March 2021 by Doggone

There are a lot of reasons for calling this what I am, but the main one is that the true mother showed herself when Solomon suggested cutting the baby in half. The true mother would rather have the baby go to someone else and live than her baby killed.
The Heller and McDonald decisions ripped the baby from it mother for no other purpose than political ends.

The source from which the Supreme Court derives its power, Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352 [1803], specifically addressed the issue of clauses in the constitution with the opposite result. Marbury stated that " The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction". And "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."

District of Columbia v. Heller, 554 U.S. 570 [2008], was in no way a case of first impression for the Second Amendment. There were at least two other cases , US v. Miller, 307 U.S. 174 [1939] and Presser v. Illinois, 116 U.S. 252 (1886), that came to the opposite conclusion in regard to how the Second Amendment is to be interpreted. While not the holding, Miller stated that:

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.' U.S.C.A.Const. art. 1, § 8. 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.
This is the exact opposite of what DC v. Heller stated in its reasoning.

Justice William O. Douglas, who was on the court when Miller was decided, did a gloss of this Second Amendment jurisprudence:

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.

And since Article I, Section 8, Clause 16 gives Congress the power to arm the militia, McDonald v. Chicago, 561 U.S. 742 (2010), is completely ultra vires because it judicially amends the US Constitution to place powers where they were specifically not intended to be placed. One of the complaints in the Declaration of Independence was that lawfully made legislation was overturned by unelected parties. Not to mention the judicial review isn't in the US Constitution.

Historian Joseph Ellis and Yale law professor Reva Siegel noted the irony that Scalia's Heller decision only makes sense in light of a living Constitution, a principle that Scalia rejected.

But that is a digression because I am sure that the learned justices are aware of this. Justice Stevens later called the decision "unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench" and called for a Constitutional amendment overruling it. Definite baby cutting from Scalia!

Where we get into cutting the baby in half is that these decisions really did nothing significant to change firearms laws. Other than to make the incorrect assertion that the Second Amendment is unrelated to the militia despite that jumping out in your face if you read the amendment.

Neither the Heller or the McDonald really changed much in regard to firearms laws. The only real change was that handguns were allowed to be owned in the home. The reality is that more baby cutting is found in the actual holding:

"In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights{1}, the District must permit him to register his handgun{2} and must issue him a license to carry it in the home [3}."
Further baby splitting, I am pointing out three measures which this holding finds Constitutionally permissible:
  1. Background check
  2. registration
  3. Licensing 

These are what "gun grabbers" are talking about when they mention reasonable restrictions. 

And they are enshrined in both holdings Heller and McDonald. 

I will keep pointing out these passages from Heller and McDonald:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. 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. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 112 years: doesn’t that count as a longstanding regulatory measure?

Likewise, Candidates cannot say that gun laws violate the Second Amendment if they do not infringe upon the rights to truly “law abiding citizens” to own firearms. As the Court said (twice) “the right to keep and bear arms is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”

The US Supreme Court has churned out some terrible decisions, with Heller and McDonald being two of them. 

The ultimate upshot is that these decisions have churned up what was once pretty settled case law: that the Second Amendment related to what is now the National Guard. I would take the opinion of someone who was on the court when US v Miller was decided as to its meaning. I'm not sure why that is left out of the "jurisprudence".

I can go into even more depth as to why the "individual rights" interpretation is ripping the baby in half. One doesn't need to go outside the text of the Constitution to come to that conclusion: the constitutional text is fairly clear. I am surprised that people who claim to be constitutional scholars would give it air it's that silly.


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