Out-of-Control Courts

posted by Ted Noel at American Thinker 

I know. You’re tired of pundits opining on the unconstitutionality of various courts declaring that Trump can’t fire people or that he must send USAID money, keep sex deniers in the military, and so on. In those cases, the judges often get outside their lanes, accepting cases that Congress assigned to other courts or not to the courts at all.

For example, Congress explicitly ordered that immigration cases have to go through immigration courts. The appeal from those courts is through the Circuit Court of Appeals, bypassing petty tyrants such as James Boasberg, who, if you’ve been listening, isn’t on an Immigration court. He’s a judge in a District Court, the level that Congress said should never see an immigration case. There’s also good authority that, when it comes to alien enemies, the courts are out of the picture entirely. But the Supreme Court sits on its thumbs.

It’s time to change gears. Once again, we’re in the Southern District of New York, based in Manhattan (like Judge Boasberg). But this time, the Judge is Edgardo Ramos, and the case is Calce v. City of N.Y. This should have been a really simple one. Calce (and several others) work in New York City. Co-plaintiff Kennedy lives in Connecticut. All of them would like to buy stun guns to carry for self-defense. The Supreme Court has made it clear that the mere threat of losing a constitutional right is enough to get them into court. They don’t have to get arrested first. Thank heaven for small favors.

But that’s all Calce gets. She’s in the communist court for New York, which has no regard for the law. I know you think I’m overstating the case, but hear me out. New York Penal Law § 265.01 bans possession of stun guns. Simply having one is enough to get you thrown in jail. The law is explicit. You don’t have to have any kind of criminal intent. But this 1985 law is blatantly unconstitutional. Don’t take my word for it. We’ll get there in a bit.

The problem isn’t that the law is unconstitutional. It’s that the judge doesn’t care that it’s unconstitutional. And he gives the same degree of concern to his standing as a judge of an “inferior court.” No, that doesn’t mean that the District Court isn’t as good as others. It means that, as Hebrew National hot dog ads said, he “answers to a higher power.” Or at least he’s supposed to.

Article III of the Constitution opens with “The Judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” That means that the District Court is at the bottom of the food chain. Between it and the Supreme Court lies the Court of Appeals for its Circuit. The Circuit Court is the court designed to correct “reversible error.” If the District Judge screws up, it’s the Circuit’s job to fix it. Above the Circuit is the Supreme Court, which is designed to solve the tough cases and, in the words of John Marshall, “affirmatively declare what the law is.” In doing that, it establishes precedents for the lower courts to apply.

Once a precedent is established, the inferior courts, both Circuit and District, are obligated to follow it. As District Judge Hendrix said in U.S. v. Rahimi, he would rather rule differently, but he is “constrained by the Fifth Circuit’s decision in McGinnis. This Court cannot depart from that precedent unless and until the Fifth Circuit or the Supreme Court directs otherwise.”

Unfortunately, those lower courts in blue states love to ignore the plain language of Supreme Court decisions. On gun cases, as Mark W. Smith notes in the Harvard Journal of Law & Public Policy, “some lower courts have seized upon a single sentence in Bruen that states that ‘[w]hile the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach.’”

In other words, we can forget the clear statement by the Supreme Court that says that weapons in common use for peaceful purposes are fully protected. That ruling means you can’t outlaw ARs, AKs, and their standard 30-round magazines. Instead, these courts allege that the development of semiautomatic firearms and their accessories constitutes an “unprecedented societal concern or dramatic technological change.”

Basic facts don’t concern blue courts. They simply want to figure out a way to dress up their politics as law. But the Calce case takes the cake. When Hellerbecame the law of the land in 2008, it wasn’t clear if the Second Amendment applied to state-level actions. However, the McDonald decision in 2009 made it clear that all the rights in the Bill of Rights applied to citizens in every state. Then, on point for our discussion, the 2016 Caetano decision should have completely settled the stun gun question.

The Massachusetts Supreme Court had held that stun guns were not protected. They offered several reasons, all of which were rejected by the US Supreme Court. In short, stun guns are in common use for lawful purposes, per Heller, and are therefore protected in every state by the Second Amendment. We should note that Calce is even in the same Circuit as Caetano. An honest judge would say something similar to what Judge Hendrix said. Instead, in an act of blatant judicial disobedience, the court upheld New York’s ban on stun guns.

This same sort of confabulation is found in the 9th Circus Court of Appeals ruling in Duncan v. Bonta. We can skip the shenanigans that this liberal Court pulled in getting past the Supreme Court’s explicit directions in Heller and Bruen. California bans “high capacity” magazines that hold more than ten rounds. Somehow, like the stun gun in Calce, if you are in a specific communist state, your right to keep and bear arms doesn’t exist.

The fact that literally billions of these magazines are used by citizens for lawful purposes doesn’t matter to them. Somehow, they aren’t “arms” to be protected by the Second Amendment. But remember that the Amendment doesn’t protect “firearms.” It protects “arms,” which is a much broader term. And while you’re at it, watch Judge Lawrence VanDyke’s brilliant video dissent.

The Supreme Court clearly stated in Heller that the government must prove that an “arm” is not protected. As Stephen Halbrook notes, “it is not the plaintiff’s burden to establish “common use” but the government’s burden to show an “arm” is not in common use.” Calce and Duncan have courts turning that standard on its head. Leftist judges aren’t doing these gymnastics in just gun cases. Judge Boasberg is turning backflips in immigration cases where he doesn’t even have the authority to rule. Welcome to NewSpeak, where up is down.

I can’t yet support plans to impeach judges or eliminate billets, but I hope that the Supreme Court will promptly take appeals to the rulings by these subversive judges. SCOTUS has relisted Ocean State Tactical v. Rhode Islandmultiple times without granting cert. It’s a clone of Duncan. Multiple other similar cases are in the pipeline. The great mystery is why SCOTUS is dawdling. It’s time for a major league smackdown on insubordination by inferior courts.

Much of this could be fixed by Chief Justice Roberts, who is the ultimate supervisor of the lower courts. A few phone calls would clarify that he’s p/o-ed at lower courts dissing the Supreme. Many of those cases will be dead on arrival at SCOTUS, so don’t waste our time with your petty rebellion. America deserves better.

Unfortunately, I don’t see Roberts having the spine to do his job.