The Fourth Circuit is Wrong

So, let's say you're a liberal judge -- or, in this case, a whole bunch of liberal judges ruling en banc -- and you really don't like the Heller decision. However, the author of that decision recently died, so you figure you can tee up the Supreme Court to reverse it in a new precedent. Thus, you decide to issue a ruling completely ignoring the Heller decision, and creating a wholly new standard for what kind of weapons deserve 2nd Amendment protection.

The problem is that the new standards doesn't just ignore Heller. It also directly violates the logic of the prior most-important 2nd Amendment Supreme Court Ruling, United States vs. Miller.

The Miller ruling appears to say that the only weapons the 2nd Amendment protects are those that are suitable for militia service, as for example by being of "ordinary military equipment." What the new 4th Circuit case says is that no weapons are protected if they are "most useful in military service." In other words, the two categories are mutually exclusive: the Supreme Court's standard is exactly the opposite of the 4th Circuit's.

And that's if you throw out the Heller decision entirely, as if it never existed.

However, it does exist.


raven said...

Firearms laws are a stew of contradictions. IMO they are ALL illegal infringements on the Constitutions.

Tom said...

Really, this ought to be an impeachable offense.

Grim said...

I'm not sure it shouldn't be a hanging offense, although I guess we're out of the habit of hanging judges.

Tom said...

Could we compromise on impeachment / removal, then tar and feathers?

Thinking a bit more, if Congress thinks it's an impeachable offense, then it is, right?

Congress has been a bunch of lazy slobs for decades now. Or, misdirected.

Grim said...

I wonder what would happen if Congress were to impeach these judges, and then another circuit court were to order them reinstated because they 'were just doing their jobs' and 'Congress should only impeach for criminal behaviors.' There's a Constitutional crisis for you.

Tom said...

The Constitution only establishes the USSC. All other courts are established by Congress, so Congress could simply dissolve that court and give its duties to another, I assume.

It may well be impossible to word in a way that didn't produce bad results as well, but I wish we could add an amendment that required judges to use textualist / originalist interpretation alone and considered anything else to be a dereliction of duty, or something similar.

Eric Blair said...

I think Congress would have to show malfeasance.

Like say, this:

Grim said...

All right then. Let's see about getting Congress on the job.

E Hines said...

I wonder what would happen if Congress were to impeach these judges, and then another circuit court were to order them reinstated because they 'were just doing their jobs' and 'Congress should only impeach for criminal behaviors.' There's a Constitutional crisis for you.

Crisis created by mendacious judges. Impeach, also, those judges of the other circuit--or of the Supreme Court, since a sister circuit hasn't the authority to order reinstatement--who voted for reinstatement. This is what the Constitution says in Art III, Sect 1: The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.... Congress defines good Behavior, not the courts, and absent the President being impeached, the courts aren't involved in the process. And violating their oaths of office would be well outside good Behavior by a judge.

Impeaching a sequence of judges like this would raise a political uproar, but since the subsequent trial(s) can reach conviction only by a two-thirds majority of Senators present, there's a sufficient barrier to capricious sequences of impeachments and convictions. And if the people don't like what just happened, they'll fire the Congressmen at the next election.

Eric Hines

Tom said...

In theory, but that's not how things shake out in reality. Instead, the Democrats will never vote to impeach these judges because they like the results: a chance to undo Heller. Also, if the Republicans start this, even for the best of reasons, the Democrats will be sure to seek revenge for any far-left judges impeached when they have the power to do so. So, the Republicans won't start.

As a result, we are left with no effective checks on the judiciary, and generation by generation we have lost liberty and the Constitution has become twisted so badly that parts of it are no longer recognizable. The 10th amendment no longer effectively exists. The Commerce Clause almost doesn't exist. The USSC is effectively a rolling Constitutional Convention.

The only effective check on their power which remains seems to be new constitutional amendments, but who would enforce them against a post-modern judiciary which believes in the Humpty-Dumpty theory of language? But we should try and see, at least.

Thomas Doubting said...

'And only one for birthday presents, you know. There's glory for you!'

'I don't know what you mean by "glory",' Alice said.

Humpty Dumpty smiled contemptuously. 'Of course you don't — till I tell you. I meant "there's a nice knock-down argument for you!"'

'But "glory" doesn't mean "a nice knock-down argument",' Alice objected.

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'

Alice was too much puzzled to say anything; so after a minute Humpty Dumpty began again. 'They've a temper, some of them — particularly verbs: they're the proudest — adjectives you can do anything with, but not verbs — however, I can manage the whole lot of them! Impenetrability! That's what I say!'

'Would you tell me please,' said Alice, 'what that means?'

'Now you talk like a reasonable child,' said Humpty Dumpty, looking very much pleased. 'I meant by "impenetrability" that we've had enough of that subject, and it would be just as well if you'd mention what you mean to do next, as I suppose you don't mean to stop here all the rest of your life.'

'That's a great deal to make one word mean,' Alice said in a thoughtful tone.

'When I make a word do a lot of work like that,' said Humpty Dumpty, 'I always pay it extra.'