Debate Magazine

"The Supreme Court Has Made Itis Decision; Now Let Them Enforce It!"

Posted on the 15 August 2013 by Mikeb302000
The quote I use to open this comes from what President Andrew Jackson is supposed to have said in response to the decision in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832): "John Marshall has made his decision; now let him enforce it!"
There is no constitutional provision for judicial review of laws by the US Supreme Court, neither is there a constitutional provision which allows the court to enforce its "decisions". I asked the question of how does one deal with a rogue court which goes beyond its powers when Scalia judicially amended the Constitution with his Heller decision.  He totally violated the rule of law and gave sanction to a version of the Second Amendment which is without historic or legal basis:
In the second article, it is declared, that a well regulatedmilitia is necessary to the security of a free state; a propositionfrom which few will dissent...The corollary, from the first position, is, that the right ofthe people to keep and bear arms shall not be infringed.
I also give this interpretation of the Miller case from a Justice who was on the court at the time of Miller, William O. Douglas, dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) :
The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

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.
Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U.S. 1, to “possessory offenses” is a serious intrusion on Fourth Amendment safeguards.
Of course, the real goal of libertarians is the destruction of government and the rule of law--even if the "law" we follow is one of custom rather than actual legislated (or constitutionally provided) law.
They would be happy to see the court system abolished.
Especially if that happens from within.  Thank you, Justice Scalia.

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