The Aggressive Maryland Ban on "Assault" Firearms Must Defend Itself Again

The Maryland law banning 45 types of firearms as assault weapons and high-capacity magazines was ruled constitutional in a lower court ruling, despite the 2nd Amendment to the Constitution.  The U. S. Court of Appeals for the 4th Circuit has now ruled in a 2-1 decision written by Chief Judge William B. Traxler Jr. that the lower court ruling must be based on a more stringent legal standard.  The Maryland Attorney General Brian E. Frosh, Democrat, helped to pass the law when he was a state senator.  He remains an ardent supporter of the arms ban.  He claims it is just common sense that the 2nd Amendment does not give people a right to own military-style assault weapons.

Assault weapons by name imply an intention to use the weapon in an offensive, rather than a defensive, manner.  Yet, in any fight for one's life, the fight will tend to oscillate back and forth between defense and offense.  Yes, one may be defending one's home and family, but to do so one cannot simply block blow after blow and expect that one will be forever successful in blocking the next blow.  At some point, one has to find an instant to move to the offensive and deliver a knock-out blow to end the contest.  The sooner this is accomplished, the less the threat to one's loved ones and values.  The Democrats never seem to understand this.

There is no clear distinction between an assault and a defensive weapon.  There is also no clear distinction between a military weapon and a defensive weapon.  The dissenting judge on the Appeals Court decision, Robert B. King, claimed the Maryland law banning assault weapons banned "exceptionally lethal weapons of war."  Now I ask you, what other kind of weapon would you want to have while defending your family and home?  A pocket knife with a 3-inch blade is not sufficient to the task of protecting one's values.  Morally, how can it be wrong to defend your family and home with the best tools available for doing so?

When the 2nd Amendment was approved by the states of the new Republic and became effective on 15 December 1791, many Americans lived on the frontier and were under frequent threat of attack by Indians or even the British who still occupied Canada and various forts in the Midwest (then the Northwest), despite the Ohio Territory having been ceded to the Americans by the 1783 Treaty of Paris ending the American Revolutionary War.  The Northwest Indian War, also called Little Turtle's War, lasted from 1785 - 1795, with the British supplying weapons to the Indians.  Not so long after, the British and their Indian allies launched a brutal attack upon the Americans in the War of 1812.  Throughout this period, it was clearly a common sense necessity that many an American must arm himself with the best weapons of war he could afford.  Those weapons were not necessarily any different than those used by the meager official armed forces of the federal government.  The common American could own the best musket and the best rifle available.  A few even owned cannons.  Some shipowners owned rather heavily armed sailing ships.  The right to do so was then protected by the 2nd Amendment.

The Maryland law banning so-called assault weapons was opposed in court by a group of gun store owners and individuals who claim the prohibited firearms are not military weapons.  I consider this a concession that should not be made.  The military and individuals use weapons, and may do so on a moral basis, to protect persons and property.  There is no rational reason to deny individuals a weapon simply because it might be used by the military.  The only reason to deny an individual the use of a weapon is if the individual has used a weapon to initiate harm to others, has threatened others with initiated force, or has shown a well-established inability to act rationally.

Yes, there are weapons that one may not be likely to need to defend one's home and family.  Bazookas and tanks are not likely to be useful, unless one lives very near the Mexican border and has to protect one's ranch from drug and human traffickers.  Some individuals may simply think it is cool to restore a WWII tank.  That seems a very reasonable hobby to me.  There is surely nothing in the 2nd Amendment, the conditions of the period when it was added to the Constitution by the people, or in basic rational morality that argues against individuals arming themselves with the best weapons they may choose to own.

There are some weapons which may be prohibited to individuals.  For instance, weaponized anthrax or corrosive nerve gases are simply be too dangerous for even well-intended people to handle and preserve without endangering others.  They are dangerous enough that anyone who did want to own them would fall into the category of being unable to behave rationally and in so doing, posing a threat to others. It is very difficult for even a large organization, such as the military, to handle such weapons safely.  In fact, the U.S. military does not even use them when they have them because they are too dangerous to use.

The Lawless NRLB and Obama

The U.S. Court of Appeals for the District of Columbia just decided that Obama's three appointments to the National Labor Relations Board on 4 January 2012 were illegal because they were not approved by the Senate which had started a new session on 3 January.  Obama had claimed he was making recess appointments, which the Constitution allows when the Senate is in recess.  Obama claimed the right to determine when the Senate was in recess or not, despite the fact that Congress traditionally declares itself to be in session or recess.

In 2010, the Supreme Court had ruled that the NLRB could not make case rulings or undertake rule-making activities without a quorum of three of its usual five members.  One of the illegally added members, the sole Republican, had resigned long ago because of the very one-sided pro-Labor Union decisions against business owners.  One of these cases was the Boeing ruling in which they were trying to set up a production facility in South Carolina, a Right to Work state.  The NRLB had ruled that Boeing had to do more of that work than it wanted to in Washington, a Union Shop state.  With two of the remaining four NRLB members illegally appointed, hundreds of rulings should be considered to have no authority.  The NRLB Chairman, Mark Gaston Pearce, claims that only the single case actually decided upon by the Appeals Court is tossed out and that all of its other decisions remain in force despite a lack of quorum.  In addition, he claims that the NRLB will continue making rulings and rules with its current members, including those just ruled to have been illegally and unconstitutionally appointed by Obama in direct violation of the 2010 Supreme Court decision.

The initial appointments were a lawless act by Obama.  The determination of the NRLB, with only pro-labor union members, to continue with rulings and rule making without a legal quorum is stunningly lawless.  The fact that Obama has not ordered the NRLB to stop proceeding without a quorum is a renewal of his claim to be above the law.  Note that the claim that a violation of the quorum requirement only overturns one out of hundreds of rulings is absurd.  This means that a lawless federal agency can continue to abuse the People in every case in which the People do not have the money and the time to pursue their own case in the federal courts to at least the Appeals Court level!  It makes a mockery of justice and of individual rights and clearly mocks the idea that government is a servant of the people.

Obama also made a similar "recess appointment" of Richard Cordray as director of the Consumer Financial Protection Board, which was set up by the Dodd-Frank financial reform bill.  That bill was really an attempt to divert public attention from the fact that the 2008 financial crisis was primarily caused by the government.  Obama has just asked to have Cordray appointed again to be director of this CFPB.  Its activities under this illegally appointed director have also been challenged in the courts.

Obama's failure to order the Justice Department to produce the public documents they are required to produce on the Fast and Furious investigation and to require the EPA to produce documents it was required to produce on Lisa Jackson's hidden e-mail activities are other examples of his common lawlessness.  His providing billions of dollars of funding to his campaign contributors who set up flimsy green energy companies, while not providing federal funding to more sound green energy companies is another instance of his lawlessness.  Then what could beat his awarding exemptions from the requirements of ObamaCare to his union friends and to his contributors and those of other top Democrat leaders, when no such exemptions are a part of the law?  He has made similar unauthorized exemptions to the law through the programs of the Department of Education.

Obama is a very shady, lawless man and he likes to gather similar people around himself and put them in positions of power.  American federal government institutions have been rapidly degraded by this man and his regime of outlaws.

On Some Criticisms of Sonia Sotomayor

There are two statements made by Supreme Court nominee Sonia Sotomayer which have come under a great deal of criticism in conservative circles. These are:

"Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases....I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

"All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is - Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating."

As I mentioned in my previous post, I believe Judge Sotomayer is a badly flawed judge, but we should make her evaluation on a rational basis and these quotes as given above are not a sound basis for such an evaluation.

In the first quote, she is said by many conservatives to have taken a racist stance. Well, no, this is not the case. I think some of her case judgments and other statements reveal her as racist, but this statement does not. The reason is that anyone of any race who is wise is, of course, going to make better judgments and decisions than the average person of any race. Wise people are not all that common and many people of any race in positions of authority are not wise. So, a wise Latina woman is going to make better decisions more often than not than a white male. Similarly, a wise white male is going to make better judgments and decisions more often than not than a Latina woman. These statements will both be true provided that the person not specified as wise is not one of the few wise members of the given race. There are specifically very wise judges who are white males (Judge Andrew Napolitano), white females, black males (Justice Clarence Thomas), black females, Latin males, and Latina women, Asian males, Asian females, Native American males and females. Whoever is chosen for the Supreme Court position ought to be one of those few judges who is wise. I do not care what race or nationality they are, only that they are wise.

Now, a wise judge would have a very good understanding that all laws should be consistent with our Constitution and that the purpose of the Constitution is to protect, preserve, and defend the sovereign rights of the individual to life, liberty, property, and the pursuit of happiness. In addition, a wise judge would know that the rule of law and the impartiality of law with respect to wealth, race, religion, and national origin is very important. The wise judge would understand that the law must be consistent and intelligible and that it must be as simple as it is reasonably possible to make it. Overly complex laws are effectively unknowable and are therefore an abomination. For instance, any law that Congress cannot even interpret is clearly not a law at all and should be thrown back in their faces as a disgrace. Much of the tax code, EPA regulations, and anti-trust law all fall into the realm of unintelligible law which should be unenforceable in the courts. Judge Sotomayor is certainly not such a wise judge based upon her decision record.

Let us now examine the statement that the Court of Appeals is where policy is made. Looking at her record, there is reason to be concerned here with respect to Judge Sotomayor's understanding of the law. But, one really does have to look beyond this statement to come to that conclusion. This statement could be understood in a context that the lower courts may disagree with one another on the law and the Court of Appeals, which produces the final appeal decision on 99% of court cases, has to set the policy of what the law actually means with its decisions. This does not necessarily mean that they are making up law, as some conservatives have implied. Unfortunately, an examination of Sotomayor's actual decisions does lead one to conclude that she makes up law as it suits her, but this quoted statement does not make that clear. One has to dig deeper.

The argument against Judge Sotomayor's appointment is trivialized if we stop with these quotes and base all of our objections to her upon them. We must examine her decisions and look to other quotes for a true understanding of her philosophy of law. We will not be happy with what we find, since she has no business serving on the Appeals Court, let alone on the Supreme Court.