More Threats For The Supreme Court

Another week, another set of threats directed at the United States Supreme Court from the White House, Congress and dark money political action groups. Their intent remains clear and blunt; decide cases in our favor or the Judicial Branch will be restructured to give us the results we want. 

From the Harris-Biden [sic] administration we have the Presidential Commission on the Supreme Court of the United States. The 36 member, so-called “bipartisan commission” is made up of far-left legal scholars, Democrat activists and a handful of Republicans who were highly critical of the former President. Public meetings by the commission will start the 180-day deadline for a report to the Administration. 

According to the White House, “The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

Put another way, after six months of dog and pony show meetings and millions of taxpayer dollars, the hand-picked, pro-Supreme Court reform activists will deliver a predetermined conclusion to justify restructuring the Judicial Branch to meet progressive needs. 

From the extreme left political action groups and activists, we have a call for Justice Stephen Breyer, a stalwart and senior member of the left leaning Justices, to retire following a speech at Harvard Law School. 

Justice Breyer’s offense was he spoke out against packing the Supreme Court. He argued public trust in the court rests in the perception “the court is guided by legal principle, not politics”. This would be eroded if the Court’s structure were changed in response to concerns about the influence of politics on the Supreme Court.

Naturally, Justice Breyer’s thoughts go against far-left’s court reform movement, championed by dark money groups such as Demand Justice, the former employer of the current White House Press Secretary as well as the Administration’s point person on judicial nominations. The calls for Justice Breyer’s resignation include the commitment from the President to replace him with the first black female on the Court. 

From the Democrat controlled Congress, we have the Judiciary Act of 2021, a two-sentence bill introduced by Democrat members of the House of Representatives and Senate to pack the Supreme Court with five new liberal appointed Justices, bringing the total from nine to 13. 

The logic behind this is the 6-3 conservative majority on the Court. That’s all, nothing else. In reality, it’s a 5-4 conservative majority, with the Chief Justice now firmly siding with the left leaning wing following his capitulation to the threat of forced reform presented in the Senate Democrat’s “Heal Thyself” memo issued during the New York State Rifle & Pistol Association Inc. v. City of New York case. Still, any conservative majority is too much. 

The defense of packing the court has been as loud as it has been flawed. 

“We’re not packing the Court. We’re unpacking it.”

“The Supreme Court is fundamentally broken. And ultimately, I think we can anticipate decisions that emanate from this Supreme Court that are absolutely going to create a public cry for a change in the numbers of the Supreme Court so that they cannot continue their undermining, their destruction of historic, progressive laws that have been put on the books.”

A critical point to be considered here. If the only way to get “historic, progressive laws” to pass Constitutional scrutiny is to pack the Court with far-left liberal Justices who will rule in favor of them, then it’s a safe bet the laws were NEVER Constitutional in the first place. 

When asked if the Judicial Act of 2021 would be brought to the floor, the Speaker of the House of Representatives commented: “No. I support the President’s commission to study such a proposal… It’s not out of the question.”

The Speaker’s “It’s not out of the question” response is clearly meant to intimidate the current Court into compliance with the far-left agenda. Unfavorable rulings from cases under consideration are sure to bring swift retribution from the Democrat controlled Congress in the form of action on the Judicial Act of 2021. 

Then there’s the rub. 

Despite the loud voices from the far-left members of Congress and their aligned media outlets, actual support in Congress and the public for packing the Court is small. Packing the court would also require the Senate eliminate the filibuster, something that has also shown very little support in Congress and the public. These efforts are recognized as the political power grabs they really are and would certainly cost the members of Congress who vote for them the one thing they hold more dear than anything else, their reelection.

But these are desperate times for the far left and if they can’t push packing the Supreme Court through, then the elimination of Justices they believe are vulnerable will likely commence. While their time is limited, there is a lot of damage they can do before the mid-term elections in 2022.  

Bob

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SCOTUS vs. The Second Amendment, Part 2 (And Then There Were Two)

With a number of high profile Second Amendment cases either headed towards the United States Supreme Court, or already being heard, this is a critical time for the future of our constitutionally protected rights. At the same time, we have a Court under extreme pressure to make the ‘correct’ rulings as defined by the extremist left. These politicians have made it abundantly clear that if the Court does not see things their way, it will be restructured and packed with justices who will. 

Given the reprehensible conduct by some of our elected officials, this is the most dangerous time in history for significant Second Amendment protected rights cases to be brought before the Supreme Court. 

The independence of the Supreme Court, one of the three branches of our government, is one of the cornerstones of our nation. Each branch has its own powers and responsibilities to ensure the government is effective and citizen’s rights are protected. The Judiciary, specifically the Supreme Court, has a role which includes the final check and balance of the constitutionality in our country. 

Most of us understand this fundamental design of our government and believe in a strong and independent judiciary. Others see it as a hinderance to their plans for more government power and control, power and control stripped away from the people. 

For a government official, if your legislation is a little iffy on the constitutionality side, how do you get it to survive a court challenge? Easy, you influence the courts. While simply campaigning on an issue and creating popular support for your questionably constitutional law might help, an independent judge is going to ignore public pressure and decide the case based on the Constitution and the law, as would be expected in a Republic. Therefore, the influence you need to get favorable court rulings is to seat judges who agree with your politics and will interpret the law from your political point of view.  

Of course, the whole idea of liberal and conservative justices on the Supreme Court – or any court for that matter – is an abomination in the first place. There should be no political skew in either direction. There should be no other consideration at play other than the Constitution and the law. By the time any case reaches the highest court in the land, politics and the justices’ personal views should be long gone and only the law should enter into their decisions. Sadly, this is no longer the case and ‘legal’ decisions that should be unanimous are now split along political lines.

Look at how contentious the last few Supreme Court appointments were. Remember how desperately certain Senators fought to keep originalist jurists off the bench. Remember how outraged the left was at the possibility of replacing a left leaning justice with a right leaning one. A Supreme Court with a single vote, 5-4 conservative advantage could derail an entire political agenda due to constitutional challenges. It was a “threat to democracy” itself.  A new strategy had to be put in place. 

Remember the Senate Democrats “Heal Thyself” letter threatening to pack the Supreme Court if it didn’t moot the New York State Rifle & Pistol Association Inc. v. City of New York. This letter is widely credited with not only Chief Justice Roberts decision to moot the case but to more firmly side with the left wing of the Court. The Court was saved from being packed, at least temporarily. 

Restructuring the Court and packing it with liberal appointed justices to “reduce the influence of politics” is a bold and aggressive plan. It would permanently cement the Court to a left-leaning rubber stamp for generations to come, or at least until the next Congress repacked it. This scheme would face massive opposition from both parties and the public who recognize it for what it really is, a partisan power play. But removing an unpopular Associate Justice, one who has been vilified in the press, to be replaced by a liberal appointed one, that might fly. 

You now understand the never-ending defamation campaign against Justice Kavanaugh. Kavanaugh, who faced one of the most disgraceful confirmation hearings in the history of the Senate, has continued to be harassed and threatened while on the bench. Far left Democrats, including the current Vice President, have called for congressional hearings and his impeachment. Social media is awash with slanders calling him the “rapist on the Supreme Court”. (See: A Shot Across The Bow of the USS SCOTUS  https://oddstuffing.com/archives/792)

Yet that alone wouldn’t be enough. They needed to apply pressure to another conservative Justice. This latest round of intimidation comes following Justice Thomas’s dissent on the Supreme Court’s denial of the GOP challenge to the Pennsylvania state court’s decision to extend mail-in ballot deadline for November’s presidential election. 

Critics claimed Justice Thomas’s dissent was a tacit endorsement of the takeover of the U.S. Capitol on January 6th and convinced Amazon to remove a documentary film about Thomas, “Created Equal: Clarence Thomas in His Own Words” from their streaming service – during Black History Month.  

To make their point even more clear, left-wing congressional politicians and agitators called for an investigation of Justice Thomas’ wife for her support of the January 6th D.C. rally and questioned why Justice Thomas was allowed to be on the Court at all. 

The message from Congressional Democrats is crystal clear. Incorrect rulings will be severely punished, either by removing the involved justice(s) from the Court or by a complete restructuring and packing of the Court by liberal appointed jurists. Correct rulings on the other hand, will result in the Court being allowed to continue with its current structure, albeit under the thumb of Congress. 

A Supreme Court operating under outright threats and intimidation of the Executive and Legislative branches is far from independent. If the independent Judicial branch allows its decisions to be muted by political influence, it will be no different than a restructured and packed Court. We will, in effect, have two branches of government, the Executive and Legislative, with the Judicial acting only as a servant to the Legislative du jour. 

The cases mentioned in Part 1 have the potential to affirm or deny the constitutionally protected rights of millions of Americans. Simply rejecting these cases in favor of addressing an issue later at a less politically dangerous time risks the very lives of those who would be on one side of a political border vs. the other. Ignoring the Bill of Rights is not an option. 

The American public is waiting, but will the Supreme Court step up? 

Bob

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SCOTUS vs. The Second Amendment, Part 1 (Potential Cases)

A number of high profile Second Amendment cases are working their way towards the United States Supreme Court right now, plus one 2A related case already under consideration. The outcomes of these cases are likely to be as impactful to our Second Amendment protected rights as Heller, if not more. While you would think this would be an ideal time for them to be heard, our Supreme Court is being threatened with virtual extinction if they rule against what the left extremists demand. 

The following is a quick overview of three of these cases and why I believe this is the most dangerous time for these cases to be coming before the Supreme Court. The results may not only determine the future of the Second and Fourth Amendments but also if the government is effectively reduced from three branches to two. 

1. Young v. State of Hawaii

This case was recently decided by an en banc panel of U.S. Court of Appeals for the 9th Circuit. The case is a challenge to Hawaii’s highly restrictive open carry policy which requires the applicant to show “the urgency or the need” to carry unconcealed firearms, that they have “good moral character,” and that they be “engaged in the protection of life and property.” As a result, only private detectives and security guards are ever eligible. The equally restrictive conceal carry policy, which was not part of this case, effectively results in a complete prohibition of carrying a firearm in public for personal protection. 

Incredibly, the 9th Circuit ruled against Young, stating that Second Amendment protected rights end at your doorstep and DO NOT extend into public. Rather than relying on a plain text reading of the Second Amendment and history of Fourteenth Amendment, they cherry picked history from 17th century English law and 19th century Hawaiian regulations to determine people have the right to “keep” arms within the own homes, but NOT TO “bear” arms anywhere outside. This is the first Circuit Court to ever make such a dramatically anti-Second Amendment ruling. 

To say this is a bad ruling is putting it mildly. Even in District of Columbia v. Heller, which held the Second Amendment protects the right to keep a firearm in the home for self-defense, noted the validity of “longstanding prohibitions” such as carrying a firearm in sensitive places like schools and government buildings. Yet it was these two words the 9thCircuit used to help rationalize any place outside of the home could be prohibited. 

This ruling now covers all the states in the 9th Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. It is certain that anti-conceal and open carry government officials will immediately seize upon this decision to further restrict or eliminate carrying firearms in public. 

While this is a prime example of the Circuit Courts rabid misinterpretation of constitutional law, legal precedent and an excellent case to be argued before SCOTUS, that has yet been done. SCOTUS did consider another similar case dealing with highly restrictive and subjective carry policy – New York State Rifle & Pistol Association vs. Corlett – in conference on Friday and may announce whether they will grant a writ of certiorari as soon as today.

2. Gun Owners of America v. Garland

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled last week the ATF could not administratively change the law regarding bump stocks and that bump stocks themselves were not considered machine guns. 

In the aftermath of the Las Vegas shooting, the ATF reclassified bump stocks as machine guns under 26 U.S.C. § 5845(b) despite having no ability to fire on their own. An estimated 500,000 individuals and businesses who lawfully purchased bump stocks were forced to dispose of them without compensation or face criminal charges for illegal possession of a machine gun. 

The Court’s ruling confirmed the ATF was incorrect in determining a bump stock accessory was a machine gun. It also ruled the ATF could not change the law by itself, that it must be done by Congress. 

The ATF/DOJ will most certainly appeal this ruling to an en banc panel in the 6th Circuit, as well as attempt to make other modifications to firearm definitions to circumvent this ruling. Yet the importance of this case cannot be understated. With the ATF’s recent moves against pistol braces and the 80% market, the possibility of the ATF/DOJ again administratively banning and restricting firearms and non-firearm parts in a similar overreach is real. 

3. Caniglia v. Storm 

This case was recently heard by SCOTUS and while not strictly a Second Amendment case, it has a direct impact on Second Amendment protected rights. The case questions whether the “community caretaking” exception to the Fourth Amendment warrant requirements extends to the home. 

The officers in this situation used “community caretaking”, an exception created by the court to generally deal warrantless searches of abandoned or impounded vehicles, to enter a private home and seize firearms and ammunition. This was after the officers promised the owner who went to the hospital for an evaluation (and was immediately discharged) they would not confiscate them and falsely telling his wife he had in fact consented to the confiscation. 

While there are warrantless exceptions to entering a home without a warrant, these “exigent circumstances” cover emergency situations such as to prevent an imminent or in progress assault or to render emergency aid for someone inside, such as a heart attack victim. No “exigent circumstances” were claimed here. 

Had this case involved the seizure of drugs, stolen property or anything other than firearms, likely nobody would have given a rat’s *ss about it. Yet by attempting to use a “community caretaking” exception to remove firearms from a private residence against the owner’s will, it directly imperils Second Amendment rights. 

Consider what could be rationalized by government officials as “community safety” to enter your home and remove your firearms without a warrant. An argument with a neighbor who knows you have firearms? Someone seeing you come back from the range with a large “cache of weapons”? An argument inside the house where firearms are “registered”, overheard by someone passing in the street? Someone known to own firearms being upset after being terminated from a job?

Side note: In this case as well as another case recently settled by SCOTUS (Torres v Madrid), the government argued the officers themselves were not liable due to “qualified immunity”. This is the same qualified immunity the same government is demanding be stripped from law enforcement officers in the name of police reform at the local, state and federal level. 

The Court’s ruling on these cases could significantly impact your right to be free from unreasonable search and seizures in your home as well as your right to keep and bear arms outside the home.

Continued in Part 2 (And Then There Were Two)

Bob

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