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Most people are well aware of the major split in judicial philosophy which is whether judges should a) content themselves with interpreting the law as written or b) they should "legislate from the bench" and make up new laws and new rights based on their own personal philosophies.
We at Scragged are convinced that the constitutional role of the judiciary is to interpret the law and that the Constitution reserves the right to make new laws to our elected representatives in the various legislatures. This is why we have viewed a number of recent court decisions with great alarm.
It's clearly more satisfying to make new laws than to interpret old laws. The US Supreme Court has shown a distressingly human tendency to make up new laws in recent years, which is why nominations to the Court have become so contentious.
Even when they discipline themselves to interpret the law instead of making up new law, the Supreme Court is divided between two quite different philosophies of how laws should be interpreted. The issue of the day is whether a) judges should interpret the law to favor individual rights over societal rights or b) judges should interpret the law to favor society's rights over the rights of the individual.
This question matters a great deal because judges are our second line of defense against being abused by government officials. Our founders knew that only government power could protect people from abuse by government power; they invented many mechanisms to protect us from our government of which the right to keep and bear arms is but one.
The Grand Jury is our first line of defense against government abuse. No criminal case can be brought to court without permission from a grand jury.
Grand juries are made up of citizens who have to agree that: a) there is reason to believe that the accused did something and b) the action would constitute a crime worthy of a jury trial. Knowing that government prosecutors would spin the evidence given to the grand jury, our founders gave grand juries the power to call anyone to the witness stand for questioning.
A friend of mine who knew this was serving on a grand jury and became suspicious that the prosecutor's case was pretty weak. He asked that the arresting officer be summoned to the witness stand and he asked the questions. The officer admitted that although he was sure the accused had done the crime, he didn't have any evidence. He brought the charges to "teach him a lesson." My friend put the blast on the officer, pointing out that forcing the accused to hire a lawyer and miss work would be an unconstitutional abuse of government authority.
When a grand jury brings a fallacious indictment as in the case of the woman who's been accused of criminally abusing the MySpace web site use agreement, judges are supposed to declare that violating a web site license is a civil matter, not a criminal matter, and throw the case out of court. Judges who favor individual rights would probably understand that abusing a web site license is not a criminal matter; judges who favor government rights would probably let the government prosecute anybody they wanted to prosecute.
We've been encouraged by two recent decisions which favored individual rights over government rights.
The New York Times June 27 article "Landmark Ruling Enshrines Right to Own Guns" says, "The ruling embraced the view that the Second Amendment protects the personal right to own a gun and seemed certain to usher in litigation around the U.S."
The court's decision confirmed the plain meaning of the 2nd amendment to the US Constitution. As ratified by the original 13 states, the amendment says:
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.
Ever since the Constitution was ratified, the question has been, do people have the right to carry guns only when they're part of an organized militia such as the National Guard, or may they carry guns as individuals? Anti-gun forces say that individuals have no right to carry guns unless their local authorities permit them to do so; pro-gun forces say that the Constitution does not permit government to forbid people from carrying guys.
Broadly speaking, the US Supreme Court has ruled that the right to carry guns rests with individuals. Given how easy it is for criminals to get guns and how easy it is for one armed criminal to kill many, many citizens who have been disarmed by ill-considered gun "control" laws, this ruling is not only correct with respect to following what the founders intended based on their other writings on the subject, it also makes sense.
The founders mentioned the militia only because they realized that it would be easier to raise the militia on short notice (remember the "Minutemen") if the people were already armed. What part of "shall not be infringed" do liberals fail to understand?
It's fascinating to note that the Times gave more column-inches to discussing the opinions of the judges who disagreed with the ruling than to explaining what the ruling meant. The fact that the owner / publisher of the NY Times has a gun license notwithstanding, the Times has had a rabidly anti-gun philosophy for many years. It appears that the Times believes that the right to self-defense applies only to plutocrats such as their publisher and not to us peasants. Thankfully, the court has come down on the peasants' side.
The Times reported another victory for individual rights in their June 26 article "Judge Rejects Bid to Let Police Check Immigration Status" saying, "A Superior Court judge dismissed a California lawsuit seeking to end a police policy that prohibits officers from initiating contact with people for the sole purpose of learning their immigration status." [emphasis added]
The key to this decision is the word "sole." The court said that it was not OK for a police officer to stop someone just because the officer suspected that the person might be an illegal.
We certainly don't want cops to randomly check people who haven't committed any crime and who are not suspected of committing a crime just because they "might be illegal." Unless the police have some other reason to stop someone, the court ruled, the fact that they might be illegal is not sufficient "probable cause" to interfere in what they're doing.
Some years ago, there was a noisy argument over Driving While Black. The phrase implies that a driver may be hassled by a police officer simply because he or she is black, and then questioned, searched, and/or charged with a trivial offense. Being able to interrogate people merely because they might be illegal would criminalize "Driving While Brown."
Although the 80% of our voters who believe that illegals should be encouraged to return home might be disappointed with this ruling, this sort of police power is not at all necessary. If the police questioned everyone's residence status as part of the normal process of processing other crimes, illegal immigration would disappear in short order.
Thousands of illegals get speeding tickets every day, yet many jurisdictions expressly prohibit cops from asking the person's legal status even though the officer saw the crime committed and therefore has probable cause to question the perpetrator at length, starting with, "May I see your drivers' license and your vehicle registration, please?"
In Maryland and Colorado, for example, police officers admit that they often ignore illegals who speed because they "don't know what to do with them." If the cop hauls in someone who doesn't have a license, he'll get chewed out by the brass because the politics says to look away from illegals. Enforcing our existing laws against illegals would suffice.
Thanks to these recent decisions, individuals not only have the right to own guns, they also have the right to drive while brown. Two correct decisions from our looney left judges!
Even a stopped clock is right twice a day. What might they feel they have to do to redress the balance?