NY Times Unleashes Attack Dogs In Op-Ed On Eve Of Second Amendment Supreme Court Case

Opinion

Activist Judges Need Not Apply
One day before the oral hearing in Bruen, J. Michael Luttig, a former U.S. Court of Appeals Judge, and Richard D. Bernstein, an appellate lawyer, make clear their disdain for “the right of the people to keep and bear arms.” iStock

New York – -(AmmoLand.com)- The U.S. Supreme Court hears oral argument today on the Second Amendment case NYSRPA vs. Bruen (previously captioned NYSRPA vs. Corlett).

This is the first major case to come before the High Court after Chief Justice Roberts and Associate Justice Brett Kavanaugh, joining the Liberal wing of the Court, punted on last year’s New York City Gun Transport case. Let’s hope the Chief Justice and Associate Justice Kavanaugh don’t get cold feet this time.

But there are enough Anti-Second Amendment fanatics, including, unfortunately, jurists and attorneys, waiting in the wings, to castigate the Justices if they should—horror of horrors—actually strike down unconstitutional laws.

One can perhaps understand the “walking dead” among the living who pay too much attention to the nonsense spouted by jackasses in the Government, in the Press, in social media, and in Hollywood—allowing others to do their thinking for them. And the message is always the same:

“Surrender your firearms and peace will rain down upon you from the heavens.” And “the walking dead” nod their heads in mindless, senseless bovine agreement.

At one time the fiction might have been somewhat believable, even though patently untrue. That was in the day when communities actually had well-funded police departments to provide at least a modicum of security. Now, however, police departments in major cities are underfunded, defunded, and emasculated, or are on the verge of extinction.

One is left to ask, plaintively: “who will protect me if there are no police around and I’m not permitted a handgun to protect myself?” And, one is left befuddled at the reply given him from the vacant-eyed cultists: “That’s your white privilege talking.”

But, when some jurists and attorneys claim a person’s right to defend him or herself with a firearm must stop at the doorstep of one’s house, such an assertion is untenable and unconscionable.
Yet, that is what the public gets.

Que the New York Times’ propaganda machine.

In an Op-Ed titled, “Prominent Conservatives Back Letting States Limit Guns in Public,” published in The New York Times, on November 2, 2021, one day before the oral hearing in Bruen, J. Michael Luttig, a former U.S. Court of Appeals Judge, and Richard D. Bernstein, an appellate lawyer, make clear their disdain for “the right of the people to keep and bear arms.”

They demonstrate their abhorrence of the unfettered Constitutional Right of Americans “to carry loaded concealed weapons in public and in public places, wherever and whenever they believe they might need their guns for self-defense.”

They assert, “The announcement of such an absolute and unfettered right would be shocking and disquieting to most Americans. . . .”

The appropriate, if curt, reply to this ridiculous remark is, “so what!”

Since when is a decision on a fundamental, natural law Right to be treated like a Beauty Pageant—as a matter for popular acclaim?

These two ostensible legal experts, continue:

“The Supreme Court is not constitutionally empowered to make these decisions, and it is ill-suited to make them. For the justices to begin deciding for the people exactly where and when a person has a right to carry a handgun in public would be to establish the court as essentially a National Review Board for Public-Carry Regulations, precisely the kind of constitutional commandeering of the democratic process that conservatives and conservative jurists have long lamented in other areas of the law, such as abortion. It would be hypocritical for this conservative court to assume what essentially would be a legislative oversight role over public-carry rights, when conservatives on and off the court have for almost 50 years roundly criticized the court for assuming that same role over abortion rights.”

Former Judge Luttig and Attorney Bernstein simply construct a strawman to unceremoniously knockdown.

The U.S. Supreme Court isn’t operating as a “National Review Board for Public-Carry Regulations,” when deciding matters of Constitutional law. That IS precisely their Article 3 duty.
Apparently, these learned gentlemen have forgotten what they came across during their first-year Constitutional law class: Marbury vs. Madison, 5 U.S. 137 (1803).

“It is emphatically the province and duty of the judicial department to say what the law is.”

This function and the sacred obligation of the Judiciary do not fall to Congress. It doesn’t fall to the U.S. President. It doesn’t fall to State and Local Governments. And it sure as hell doesn’t fall to an uninformed, angry mob.

It is the duty solely of the U.S. Supreme Court, to interpret the law—to say what the law is.

Yet, Luttig and Bernstein would dare deny the Court its Constitutional function. They don’t just suggest this.

They blurt it out, “Conservatives, textualists and originalists believe — or should — that the Second Amendment ought not be interpreted to take from the people and their legislatures the historical and traditional authority they have had for centuries to decide where handguns may be carried in public and in public places.”

They continue,

“Historically and traditionally, legislatures have restricted the public carry of guns, from medieval England to colonial times, through the founding and to the present day. In fact, many of those early laws were more draconian than our own, banning the carry of guns in public places generally, without offering any exceptions like those New York provides for people who can demonstrate an actual need to defend themselves. Those restrictions extended far beyond public locations with a large and continuous armed police presence, such as government buildings and courthouses, to almost any public place — fairs, markets and indeed wherever a person would ‘go armed.’”

Reliance on historical anecdote—and Luttig and Bernstein do not offer support for any of this—has limited prudential value at best. That is why originalists do not place much stock in it, and should not.

In the first instance and in the final analysis, one should go to the written language of the law:

The Second 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.”

Where in the language of the Second Amendment is there any statement of limitation on the exercise of the Right?

The danger of overbearing Government action is most acute where fundamental rights are involved. Governments must act circumspectly. They rarely do. Government justification for infringing a fundamental Right on the pretext of pragmatic expediency must be scrutinized carefully by the Courts.

New York gun legislation is a case study of heavy-handed action by the Government. The Second Amendment Right is converted into mere privilege and one that Government rarely grants to the American citizen.

Luttig and Bernstein apparently aren’t even aware that, in blindly defending the New York City handgun licensing scheme—requiring the applicant to show actual need before obtaining a concealed handgun license—they fail to see the inherent absurdity of it.

Why should a person be forced to proffer a reason to a Government official that one’s life is worth defending with the best means available for doing so—a handgun? It presupposes one’s life isn’t really important. And, the entire exercise comes down to an arbitrary, perfunctory, and often futile and expensive ordeal for the citizen; one inviting corruption and unfair dealing of which the NYPD Licensing Division is notorious.

Lastly, Luttig and Bernstein have the audacity to give advice to Associate Justice Amy Coney Barrett, attempting to thrust her own words back upon her. They assert, “Two years ago, then-Judge Amy Coney Barrett called English and founding era statutes ‘the best historical support for a legislative power’ to restrict firearms.”

The case Luttig and Bernstein refer to is Kanter vs. Barr, 919 F.3d 437 (7th Cir. 2019).

But, what Justice Barrett, actually said, in her dissenting opinion, in Kanter, is that:

“The best historical support for a legislative power to permanently dispossess all felons would be founding-era laws explicitly imposing—or explicitly authorizing the legislature to impose—such a ban. But at least thus far, scholars have not been able to identify any such laws. The only evidence coming remotely close lies in proposals made in the New Hampshire, Massachusetts, and Pennsylvania ratifying conventions.”

Justice Barrett wasn’t advocating for use of historical support for legislative power to curb the exercise of one’s Second Amendment right. On the contrary, she was claiming the jurist should be wary of relying on it!?

In the case before the Seventh Circuit, Judge Barrett argued for the reinstatement of Plaintiff Kanter’s right to own and possess a firearm; not to dispossess him of it. She concluded her dissent, saying,

“Kanter is a first-time, non-violent offender with no history of violence, firearm misuses, or subsequent convictions,’ and he is ‘employed, married, and does not use illicit drugs, all of which correspond with lower rates of recidivism.’ Absent evidence that Kanter would pose a risk to the public safety if he possessed a gun, the governments cannot permanently deprive him of his right to keep and bear arms.”

Luttig and Bernstein should have given proper context to Justice Barrett’s dissenting opinion in Kanter, or have shown her the courtesy to refrain from quoting her at all.


About The Arbalest Quarrel:

Arbalest Group created `The Arbalest Quarrel’ website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.

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Laddyboy
Laddyboy (@laddyboy)
24 days ago

What a FARCE of a LIE that is being put on by these ANTI-American sycophants of the narcissistic, USEFUL IDIOTIC DemoKKKrat communist party’s CABAL!!

StLPro2A
StLPro2A (@stlpro2a)
25 days ago

“Where in the language of the Second Amendment is there any statement of limitation on the exercise of the Right?”

DUH….maybe in those last four words……..”…..shall NOT be infringed.”

Clearly a statement of limitation, not on We The Little Peeps’ gun rights, but on the government’s ability to limits those rights.

Arizona
Arizona (@arizona)
24 days ago
Reply to  StLPro2A

Exactly. In the BOR we restricted the government’s authority to address any of the enumerated natural rights. We really need a shake up… for the court to reiterate the plain, simple and obvious words, and throw out 23,000 gun laws that violate them!

RK-ARBALEST QUARREL
RK-ARBALEST QUARREL (@arbalest_quarrel)
23 days ago
Reply to  StLPro2A

StLPro2A, apparently something in the question—”Where in the language of the Second Amendment is there any statement of limitation on the exercise of the Right?”— got lost in translation for you. It was meant to be rhetorical, and we thought the meaning clear. The keyword in the interrogatory, ‘EXERCISE,’ apropos of ‘LIMITATION,’ is what we were trying to draw attention to. AQ has always taken the position that Natural Law Rights are ABSOLUTE and we have said so consistently in more than a few of our articles. The point we were making, and we thought it was clearly stated, is… Read more »

JSNMGC
JSNMGC (@jsnmgc)
23 days ago

RELAX. We have veterans (many of them Marines!) in law enforcement. Everything will be ok.

Country Boy
Country Boy (@country-boy)
25 days ago

“Historically and traditionally, legislatures have restricted the public carry of guns, from medieval England to colonial times, through the founding and to the present day. In fact, many of those early laws were more draconian than our own, banning the carry of guns in public places generally, without offering any exceptions like those New York provides for people who can demonstrate an actual need to defend themselves.” In 1775 at Concorde our ancestors didn’t rely on a court, they didn’t try to vote out the King of England, but instead hoarded firearms and started shooting at Gen Gage and his… Read more »

PAF145
PAF145 (@paf-145)
25 days ago

The traitor loving NYT needs to be brought down

Quatermain
Quatermain (@quatermain)
25 days ago
Reply to  PAF145

Just deny them their first amendment rights, with the same twisted reasoning, limiting it solely to their place of business. Step back and listen to the resulting squall.

Montana454Casull
Montana454Casull (@rld454c)
25 days ago

The New York times has zero credibility and I would not trust a word they print . It’s only use would be to wipe my ass due to a toilet paper shortage . Lock and load as the communists are trying to control the masses and turn rights into a government granted privileges that you can be granted if you pay them for the privilege . “Shall not be Infringed ” Lock and load and carry daily. FUCK THE New York times and all the gun grabbers trying to take our God given right to personal defence .

Jonesy
Jonesy (@61deacon64)
25 days ago

I believe they set up Roe v Wade cause I know I wasn’t able to vote Yay Or Nay for it.

nrringlee
nrringlee (@nrringlee)
25 days ago

These so-called “Attack Dogs” have obviously been patrons of the local low cost spay and neuter clinic. This is true of Progressives in general. They sever the life blood of our political culture from the body politic by denying our Natural Law foundation and attempt to replace that with relativist utilitarian arguments. Not working boys. My rights come from my Creator. That includes my right to self defense and the practical means to accomplish the same. I carry. All the time. Pound sand.

john
john (@johnwestside4545)
26 days ago

The democrats now marxist have one goal it has been the same for many years. Look at the NJ election today out of nowhere they have enough democratic ballots to win or question the results. Make no mistake we now live in a country with a one party government. They will not go quietly into the night they have joined the ranks of the communist government of China. People laughed when I told them about agenda 21 next agenda 21 – 2030 and now the great reset .org You will not be laughing next year at this time. What do… Read more »

Wild Bill
Wild Bill (@wild-bill)
26 days ago
Reply to  john

Yes, America has enough oil for the next two hundred years, but little rare earth minerals for electric car batteries.
China has no oil, but enough rare earth minerals to make them richer than all the Arab sheiks combined. So it makes perfect sense that the entire world should drop fossil fuel in favor of electric cars.
Who are these democrats in league with?

Country Boy
Country Boy (@country-boy)
25 days ago
Reply to  Wild Bill

China. Plain and simple. All the democommies are being paid by the CCP/China to install their communism here. Follow the money.

Grigori
Grigori (@grigori)
24 days ago
Reply to  Country Boy

Also, let us not forget the well over 51% of “Republicans” who are RINOs and likewise fall into that category.

Laddyboy
Laddyboy (@laddyboy)
24 days ago
Reply to  john

I do remember that Piglousy said something of the following; “I do not care if the DemoKKKrat party is destroyed, as long as the Republicans do not gain control.”