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Brady Center to post critque of Parker decision
Brady Center has posted a webpage attacking the Parker case.
Hmm. The Parker decision is "fantasy," not to mention "inconsistency, flawed reasoning, distortion of binding precedent, and misunderstood historical materials"? Then DC should be rushing to file a petition for cert., rather than agonizing over the call.
UPDATE: A nice illustration of Sandy Levinson's point that, on this issue, most thinking does a 180 degree shift relative to other political/constitutional thought. Here we have Brady Campaign, an organization that (I can speculate, but probably accurately) draws 95%+ of its support from persons who think of themselves as liberal ... complaining of "activist judges" and calling for a return to "strict constructionism" in a manner that gives one memories of the Nixon Administration.
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The rebuttal of the Parker decision is quite amusing. They heavily quote the government brief in the Miller case not the Parker case. The best quote from the Government's brief from the Miller case is that historically public arms were only allowed to overthrow tyrannical governments. Really? How is the public going to arm themselves to fight the tyrant when the tyrant controls all the arms?
Yikes!!! This will certainly be amusing. I can hardly wait for the rest of their "essays" and insightful analysis. They'll be working overtime getting their knickers in a twist. Can an aneurysm be far behind. Of course, the brilliance, justice and wisdom of the SCOTUS really shined in the Dred Scott and Cruikshank decisions, how could anyone question that? I'll give better than even odds that DC caves rather than letting Parker go before the Supremes.
Here's my favorite part (scroll down to p. 7):
Rather than addressing the Supreme Court's actual holding, and Miller's finding of an inextricable tie between arms possession and participation in a well regulated militia, the Parker court began its discussion of Miller by stating: "On the question of whether the Second Amendment protects an individual or collective right, the Court's opinion in Miller is most notable for what it omits." There is, of course, no principle of interpretation that directs courts to construe what higher courts didn't say, rather than what they did say. This rule of omission is an invention of the Parker majority.
There is, "of course," no more of a factual basis for this goofy observation than there is for just about anything else the Brady Bunch has to say on any other topic. If expressio unius est exclusio alterius (the expression of one is the exclusion of the other) were a brand spankin' new invention of the Parker court rather than a time-honored canon of construction, it probably wouldn't have a Latin name, and I certainly wouldn't have read about it in law school. Nor, for that matter, would any of the framers of the Constitution have had any misgivings on the wisdom of adopting an enumerated (and therefore, inherently finite) Bill of Rights. If a legislative declaration of certain enumerated rights couldn't be construed to implicitly exclude other, unenumerated ones, why was there any controversy over the idea of adopting a Bill of Rights, and what the hell are Amendments 9 and 10 doing in the final product?
Leave it to the Brady bunch to see strict constructionist interpretation as "judicial activism". If you try to twist the term "The People", as in the right of the people to keep and bear arms, so that it really means the States, then apply that twist to the rest of the bill of rights and you get a State control of free speech, right off the bat...It's a total non-starter.
And don't bother to read any of Jefferson's or Hamilton's other writings about what was intended...pay no attention to those silly Federalist Papers...or their personal letters and notes. America is different from the rest of the world because the founders INTENDED it to be different, and not to repeat the mistakes of the Old World. Vive La Difference!
in the bradyites defense (i have long experience as legal counsel to the devil, i may note) the words "judicial activism" do not seem to appear anywhere in their press releases on this topic so far.
which is politically smart as well as sensible, since as far as i've ever been able to tell, that term means nothing more than "some judge made a ruling i disagree with". that seems to be how it is consistently used, by everybody who regularly uses it.
nor do they anywhere use the term "strict constructionism", another phrase which doesn't seem to mean very much any longer, if ever it meant anything significant at all.
they may be wrong on all their main points of law and logic, but their rhetoric is not tainted in the manner the previous commenters and our good host have implied. which is to say, their political approach is better than y'all are giving them credit for, folks.
Yes, but they have a nifty articulated cartoon!
With so many people promising to kill us and take over our country, why does the Brady Bunch want to take away our means of defending ourselves?
Hey, nomen...when the cartoon at the top of the article shows a judge with a red pencil crossing out parts of the second amendment, that's by definition judicial activism, whether they use the exact words or not. And what the appellate court has done, I'm defining as what it is in fact...strict constructionism...again, whether the brady bunch uses the words or not.
The rebuttal of the Parker decision is quite amusing. They heavily quote the government brief in the Miller case not the Parker case. The best quote from the Government's brief from the Miller case is that historically public arms were only allowed to overthrow tyrannical governments. Really? How is the public going to arm themselves to fight the tyrant when the tyrant controls all the arms?