Legislating from the Bench

Activist Judges

When Jose goes into traffic court and offers, as his defense, that everyone else was going 35 in the 25 mile per hour zone, the judge listens patiently before pronouncing him guilty. He does this because 25 miles per hour is a pretty clear line. The sign says “speed limit” it does not say “speed advisory.” In traffic court, no judge legislates from the bench. They simply enforce the law. The rules are clear. The public policy is there to keep people safe.

Judging usually involves clear rules, like speed limits.  You read the text of the rule.  You apply the rule.  End of discussion.  You were clocked at 35.  Speed limit is 25.  You are guilty.  Next case!

Now, flash forward a few years. Jose is pulled over for speeding again, but this time the officer smells something like burning leaves in the car and spies the remnants of a hand-rolled cigarette in the ashtray. Jose is sweating. He tells the officer he knows he was speeding and is willing to take the ticket. But the officer wants to search, and Jose doesn’t want that. So the officer calls a canine unit that hits on the car, and Jose is arrested for that 60 pound duffle of dope in his car.

Now, the mere fact that Jose is speeding is not probable cause for a search. The officer’s suspicion, based on smell, is not sufficient. The suspect’s refusal, standing alone is not sufficient. But combine all of that together, and you have reasonable suspicion that allows the dog to sniff the car. When the dog hits, that’s probable cause, and the rest is history.

Except, here is where the judges start legislating from the bench. The search can be declared unreasonable based on facts that the trial judge found reasonable. Of course, sometimes these exceptions are overturned by the next level of appellate review. This is how the law works. But a great deal of criminal law and public policy is made by appellate court judges, often without a lot of thought as to the consequences of those decisions on police and the general public.

If it stayed on the criminal law side, that would be fine.  But it does not.  I transfers over to the constitutional rights of all Americans.  And it is an absolute outrage that judges that take an oath to support and defend the Constitution, believe they can pick and choose which parts of it they support and defend.

Say what?

Courts tend to be very protective of rights under the First, Fourth, Fifth, and Sixth Amendments to the Constitution. However, the Second Amendment often gets not just short shrift, it often gets shredded by appellate courts that simply refuse to acknowledge that it means what it says.

The First Amendment protects free speech, and the Supreme Court in its wisdom has extended that protection to “symbolic speech” like flag burning and putting Jesus in the bottle of urine. In so doing it expands upon and broadens the traditional protection granted by the Amendment. No one has ever been able to explain to me how there can be “penumbras” of the Constitution that can be divined to exist and protect privacy (when that was never an issue in 1779) and yet, the plain words of the Amendment can be ignored in favor of a public policy that is based on a bunch of judges losing bladder control when they see a firearm.

The recent Fourth Circuit decision upholding Maryland’s assault weapons ban is just one example of exceptional judicial legislation that has no textual support in the Second Amendment, and is premised on a complete lack of understanding of the core holding of Heller. The Second Amendment says that the right to keep and bear arms (and that category is unlimited) shall not be infringed. In a reasonable world, any infringement would be intolerable.

Wait, the liberals cry, that means we couldn’t deny guns to felons!

No, that isn’t what it means. At common law a felon lost the rights and privileges of citizenship. He could no longer vote, among other things. His liberty was restricted. In essence, his rights under the Fifth and Eighth Amendments were circumscribed and narrowed by his violation of the criminal law. So when you make a law that applies to felons, it only applies to those who have been stripped of certain rights by a criminal court. It is not an infringement of the rights of the rest of us.

The Second Amendment — Your New Charmin

The Fourth Circuit made a mockery of the Second Amendment principally by premising its holding on the fact that “assault weapons” look like weapons of war. So does a rubber knife, but no state bans them. In making this ridiculous and unprincipled leap, the judges essentially gutted the one thing that the “gunsense” nuts always rely on: that the right is somehow premised on the existence of a militia. Indeed, by suggesting that the amendment does not protect weapons of war, when weapons of war are precisely what a militia needs, the Fourth Circuit not only does damage to its future credibility as a serious court, it literally shreds the Second Amendment and uses it for toilet paper.

We can only hope that once Judge Gorsuch gets to the Supreme Court he will take certiorari on this display of judicial ignorance (some might say “arrogance”) and write a pro-Second Amendment opinion that bitch-slaps the sorry excuses for judges in the Fourth Circuit. It would be wonderful to see it completely destroy these ridiculous gun and magazine bans once and for all.  While he’s at it, he might take aim at Illinois and the rest of the “may issue” states and kick their asses into line too.

One thing is for certain. Unless we keep the pressure on Congress and demand our federal constitutional rights, and demand that the Senate confirm strong conservative judicial nominees, we can expect further erosion of our right to keep and bear arms.