Just to make it clear, ever since 1570 when the Regent of Scotland, James Stewart Earl of Moray, was assassinated by a man using a rifle, those in political power have been scared to death of the idea that the mere lowly peasantry could possess the very thing to simply take care of a government they saw as not ruling in their best interest, and one decide to do just that.<\/p>\n
This Supreme Court Is Woefully Weak On The Second Amendment<\/a><\/p>\n When firearms are involved, originalism is ignored and basic principles of statutory interpretation are overlooked.<\/strong><\/p>\n The Supreme Court just issued a decision allowing the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to rewrite the nation\u2019s gun laws. It appears that the seven justices have contracted a bad case of \u201cGun Derangement Syndrome,\u201d or GDS \u2014 a serious infection that afflicts many on the federal bench.<\/p>\n The symptoms are this: when firearms are involved, the judicial rulebook goes out the window. Originalism is ignored, basic principles of statutory interpretation overlooked, and new rules of law invented. What\u2019s left is nothing that passes for reasoned decision-making; it\u2019s the implementation of judges\u2019 personal policy predilections.<\/p>\n Until recently, the Supreme Court seemed immune to this illness. After nearly\u00a0all<\/em>\u00a0federal circuits mused that the Second Amendment did not so much as protect an individual right to bear arms,\u00a0District of Columbia v.<\/em>\u00a0Heller<\/em>\u00a0set the record straight. And after lower courts devised \u201cjudge-empowering interest-balancing tests\u201d to circumvent\u00a0Heller<\/em>,\u00a0The New York State Bar Association<\/em>\u00a0v. Bruen<\/em>\u00a0course-corrected.<\/p>\n But recently, cracks have begun to show. Chief Justice John Roberts\u2019 opinion in\u00a0United States v.<\/em>\u00a0Rahimi<\/em>, for example, arguably waters down\u00a0Bruen<\/em>\u2019s rigorous requirement that governments must justify firearms laws with historical analogues \u2014 directing courts merely to follow the \u201cprinciples that underpin the Nation\u2019s regulatory tradition,\u201d whatever that means. So wishy-washy was the\u00a0Rahimi<\/em>\u00a0opinion that Justice Neil Gorsuch wrote a concurrence to remind everyone that\u00a0Bruen<\/em>\u00a0is still good law.<\/p>\n <\/p>\n But now, Gorsuch seems to have contracted GDS as well. Authoring the court\u2019s\u00a0Bondi v. VanDerStok<\/em><\/a>\u00a0decision, he (and six others) sanctified ATF\u2019s decision to redefine unfinished firearm frames and receivers and so-called \u201cweapons parts kits\u201d as actual \u201cfirearms\u201d under federal law. That way, unfinished blocks of plastic and metal are subject to all the paperwork, tracking, and\u00a0de facto<\/em>\u00a0registration that applies to\u00a0actual<\/em>\u00a0firearms<\/em>.<\/p>\n VanDerStok<\/em>\u00a0upholds a Biden-era diktat outlawing the longstanding American tradition of personal gunmaking, succumbing to the left\u2019s hysteria over privately made firearms, and slapping these DIY projects with the pejorative label \u201cghost gun.\u201d But why?<\/p>\n Recently, Ninth Circuit Judge Lawrence VanDyke issued a blistering dissent in\u00a0Duncan v. Bonta<\/em><\/a>,<\/em>\u00a0which upheld California\u2019s ban on standard-capacity magazines, complete with a\u00a0viral YouTube video<\/a>. In that case, Judge VanDyke brilliantly exposed the source of the judiciary\u2019s GDS. He explained that most judges refuse to protect the right to keep and bear arms as they would the right to free speech\u00a0because they value speech but misunderstand and fear guns<\/em>. Accordingly, judges with GDS default to emotion-ridden rants about the dangers of guns, ignoring their basic responsibility to simply \u201csay what the law is<\/a>\u201d:<\/p>\n my colleagues \u2026 have no problem protecting speech \u2014 even worthless, obnoxious, and hateful speech \u2014 because they like and value speech \u2026\u00a0 On the other hand, as clearly demonstrated by this case, most of my colleagues see \u201climited lawful\u201d value in most things firearm-related.<\/strong><\/span><\/p><\/blockquote>\n So was it in\u00a0VanDerStok<\/em>. Rather than acknowledge and respect the creativity and craftsmanship of countless law-abiding Americans, the justices saw little value in the historic right to make one\u2019s own firearm.<\/p>\n Below are three of the most telltale symptoms of GDS. Unfortunately, the\u00a0VanDerStok<\/em>\u00a0majority tests positive for each.<\/p>\n Gorsuch\u2019s\u00a0VanDerStok<\/em>\u00a0opinion<\/a>\u00a0starts off this way: \u201cShortly after the assassinations of Senator Robert F. Kennedy and Dr. Martin Luther King, Jr. stunned the Nation, Congress adopted the Gun Control Act of 1968 (GCA)\u2026.\u00a0 Existing gun control measures, Congress found, allowed criminals to acquire largely untraceable guns too easily.\u201d<\/p>\n The implication is clear. If you don\u2019t support regulating homemade firearms into oblivion, then you must favor the \u201cexplosion of crime involving these ghost guns.\u201d And anyone who supports the right to buy unfinished firearm parts must favor \u201callow[ing] criminals to acquire largely untraceable guns.\u201d<\/p>\n Another symptom of GDS is rapid-onset creativity. Indeed, gun cases churn out some of the most inventive rules \u2014 and even brand-new insight into the English language.\u00a0Gorsuch\u2019s\u00a0VanDerStok<\/em>\u00a0opinion<\/a>\u00a0is a prime example.<\/p>\n On its face, the Gun Control Act\u2019s definition of \u201cfirearm\u201d requires that an object first be a \u201cweapon.\u201d But no one would call a block of plastic or a bag of parts a \u201cweapon.\u201d Likewise, the statute requires that every firearm must have a \u201cframe or receiver.\u201d Precursor items that \u201cmay become\u201d an\u00a0actual<\/em>\u00a0frame or receiver do not count.<\/p>\n That simple analysis should have ended the inquiry \u2014 but it didn\u2019t. So, how did Gorsuch bypass these simple definitions? Instead of looking to the plain meaning and intent of the drafters, Gorsuch turned to left-wing \u201clinguists,\u201d asserting that the Gun Control Act uses so-called \u201cartifact nouns\u201d \u2014 \u201ca word for a thing created by humans,\u201d he claimed.<\/p>\n But the term \u201cartifact nouns\u201d is made-up. In a customarily brilliant dissent,\u00a0Justice Clarence Thomas excoriated<\/a>\u00a0the majority\u2019s \u201creasoning,\u201d which \u201csubstitutes novel linguistic labels \u2026 from an\u00a0amicus\u00a0<\/em>brief and an academic paper \u2026 for traditional statutory interpretation.\u201d Whereas the majority invoked \u201cartifact nouns\u201d based on \u201ccolloquial usage,\u201d Thomas explained that, when interpreting statutes, judges are to presume that Congress\u00a0did not<\/em>\u00a0\u201cdraft its laws with the informality of casual conversation.\u201d<\/p>\n The third telltale GDS symptom is a form of amnesia, where judges experience a sudden forgetfulness of traditional legal principles. This amnesia resolves the moment the subject matter returns to something the judge prefers.<\/p>\n Take\u00a0VanDerStok<\/em>, for example. Historically, Gorsuch has been an advocate of dismantling the administrative state, decrying \u201carbitrary power\u201d in a\u00a0concurrence against vague laws<\/a>. Later, he\u00a0joined a majority<\/a>\u00a0of the court to overrule \u201cChevron<\/em>\u00a0deference,\u201d which had allowed unelected federal bureaucrats to run amok.<\/p>\n But in\u00a0VanDerStok<\/em>, it seems that Gorsuch forgot his usual concerns with big government.\u00a0 Indeed, rather than working to weaken the administrative state,\u00a0VanDerStok<\/em>\u00a0empowered it.<\/p>\n In\u00a0VanDerStok<\/em>, the court claimed the plaintiffs had brought what is known as a \u201cfacial challenge\u201d to ATF\u2019s rule \u2014\u00a0i.e.<\/em>, that the rule is unlawful in all situations. This, as opposed to an \u201cas-applied challenge\u201d \u2014\u00a0i.e.<\/em>, challenging the rule as applied to a particular situation. But as Justices Thomas and Samuel Alito pointed out in dissenting opinions,\u00a0no one<\/em>\u00a0\u2014 neither the parties nor the Fifth Circuit \u2014 ever thought there was any \u201cfacial\u201d versus an \u201cas-applied\u201d distinction to be made.<\/p>\n And for good reason. Under the Administrative Procedure Act (APA), agencies must act within their \u201cstatutory \u2026 authority\u201d and \u201cin accordance with law<\/a>.\u201d Offending rules are to be \u201cset aside<\/a>.\u201d The APA says nothing about rules that are unlawful in\u00a0some<\/em>\u00a0situations but not others, and provides no remedy for a court to save\u00a0part<\/em>\u00a0of a rule while striking other parts. Again, unlawful rules are \u201cset aside.\u201d<\/p>\n Not content with that result, Gorsuch moves the goalposts, claiming that APA plaintiffs can succeed only if they show that an agency rule is unlawful in\u00a0every situation<\/em>.<\/p>\n In dissent, Thomas<\/a>\u00a0excoriates that judicial rewrite. Under the majority\u2019s new rule, he explains, \u201cit is difficult to understand how an agency would ever promulgate an invalid definition,\u201d and an agency could simply \u201cexpand[] its regulatory definition\u201d without limit, \u201c[s]o long as it imports\u201d part of what \u201cCongress laid out in the statute.\u201d In other words, agency actions that are just \u201csomewhat<\/em>\u00a0in accordance with law\u201d would be immune from judicial review, aside from piecemeal \u201cas-applied\u201d challenges.<\/p>\n But as Thomas notes, the court\u2019s amnesia quickly fades, declaring that its new framework applies \u201cfor this case only.\u201d Funny how that works \u2014 radical new rules apply only to guns. Recall that it was Gorsuch who concurred in\u00a0Rahimi<\/em>, promising that the court would return to its senses in subsequent cases.<\/p>\n Do as we say, not as we do \u2014 that\u2019s the recent message from the Supreme Court.<\/p>\n VanDerStok<\/em>\u00a0represents an unfortunate flareup of Gun Derangement Syndrome in this nation\u2019s court of last resort. For the sake of all who value their Second Amendment rights, we hope the court soon discovers a cure.<\/p>\n","protected":false},"excerpt":{"rendered":" Just to make it clear, ever since 1570 when the Regent of Scotland, James Stewart Earl of Moray, was assassinated by a man using a rifle, those in political power have been scared to death of the idea that the mere lowly peasantry could possess the very thing to simply take care of a government … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[39,23,96,8],"tags":[],"class_list":["post-109138","post","type-post","status-publish","format-standard","hentry","category-bureaucraps","category-courts","category-cowardice","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/109138","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=109138"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/109138\/revisions"}],"predecessor-version":[{"id":109139,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/109138\/revisions\/109139"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=109138"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=109138"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=109138"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Bondi v. VanDerStok<\/em>\u00a0Decision<\/h2>\n
Symptom 2: Rewrite the Rules<\/h2>\n
Symptom 3: Ignore the Existing Rules<\/h2>\n