On this past 4th of July, we celebrated our independence from Great Britain 246 years ago. As Ben Franklin aptly stated, “If we do not hang together, we shall surely hang separately.” With respect to the 56 signers of the Declaration of Independence, who “mutually pledge[d] to each other [their] Lives . . . Fortunes, and [their] sacred Honor,” many did indeed lose their families, their property, or fortunes, and 14 made the ultimate sacrifice, either dying in battle or from wounds, or captured and tortured to death by British soldiers.
We are fast approaching another turning point in our history, not so dis-similar to what our Founders faced in 1776 and the division that led to the American Civil War (1861-1865). After the collapse of the Berlin Wall in 1989 and the Soviet Union in 1992, Nobel Laureate Dr. Milton Friedman stated that this collapse affirms Friedrich A. Hayek’s thesis “that central planning is indeed The Road to Serfdom.” Dr. Friedman continued, “Political leaders in capitalistic countries continue to favor socialist solutions in their own. They know the words, but they have not learned the tune. . . governments of so-called capitalist countries are just as backward as governments of communist countries in dismantling the socialistic practices that have mushroomed in recent decades.”
Dr. Friedman deplored “the flood of detailed regulations that control [American’s] lives” and stated, “In the words of the Declaration of Independence, [the United States] government continues to erect ‘a multitude of new offices’ and send ‘swarms of officers to harass [the] people and eat out [their] substance’.” What the American colonists faced in 1776 at the hands of the British and King George III, in the form of taxes and regulation of their every-day lives, was negligible compared to what Americans face today.
Things are coming to a head. As Professor Randy Barnet stated, “Americans today are [sharply] divided politically, ideologically, and culturally.” And, Professor Richard Epstein acknowledged, “The survival of past societies has depended heavily upon the choices of laws, just as [America’s] survival and prosperity is heavily dependent upon the choices, often conscious and deliberate, that [are made] today.”
As Dr. Will Durant discovered, “On one point all are agreed: civilizations begin, flourish, decline, and disappear—or linger on as stagnant pools left by once life-giving streams.” John B. Glubb appears to agree, “the rise and fall of great nations are due to internal reasons alone,” and, that it takes ten generations (25-years per generation) or 250 years for “human beings to transform the hardy and enterprising pioneer into the captious citizen of the welfare state.”
If we continue our decline like all past empires, the United States Government may implode as 2026 fast approaches. We are at a crossroad. To avert another revolution, or at least delay it, the Supreme Court need only implement three simple rule changes and exercise its powers under Article III of the Constitution. However, before proceeding with these three simple rule changes, it is important to understand how we got here.
Over 20-years ago, the late Dr. Walter E. Williams wrote, “During earlier periods, Congress and the Supreme Court had far greater respect for the Constitution. They understood that if the federal government was to have a power not delegated, or expressly forbidden, by the Constitution, they had to use the provisions of Article V to gain that power by amendment.” For example, in 1919 Congress understood that to prohibit the sale of alcohol, it required the passage of the Eighteenth Amendment. “Today, it’s an entirely different story, Congress, the White House, and the Supreme Court have abiding contempt for the Constitution and . . . Americans are left with a constitutional carcass.”
As Dr. Williams pointed out, “No matter what [Americans may] think about the alcohol prohibitionists, [they] can have a bit of admiration for them because [the alcohol prohibitionists] used the constitutional route to get their agenda across.” Whereas today, “constitutional stealth” (e.g., taxation, majority votes for legislation and “totalitarian tactics” of agencies like the EPA, FDA, CDC, SEC, FBI, FinCEN, and IRS) is employed to circumvent the Constitution; thereby avoiding the amendment process required by Article V.
Dr. Williams continued, “. . . the education establishment has played a greater role through the dumbing down of Americans. The resulting ignorance has allowed . . . charlatans and quacks in the legal profession [to] tell [Americans] what the Constitution means.” As an example of what Dr. Williams has suggested, let’s look at the second amendment, “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.”
Despite what would seem a common sense understanding of the basic right of self-defense and this straight-forward statement— “the right of the people to keep and bear Arms shall not be infringed”—Laurence H. Tribe, Professor Emeritus of Constitutional Law at Harvard University, wrote the following in his third edition of his treatise on constitutional law:
“Another illustration of this ‘old is new’ theme is the Second Amendment ‘right of the people to keep and bear arms.’ The second edition of the treatise . . . summed up the then-conventional wisdom that this right belongs principally if not exclusively to the states rather than to individual citizens, and argued that you’d have to climb a pretty steep hill if you had any notion of invoking the amendment as a source of individual rights against the federal government.”
“Yet an avalanche of scholarly investigation, including my own research on the subject (not previously published), has required me to revisit the meaning of that amendment, with its peculiar preamble about ‘a well regulated Militia, being necessary to the security of a free State’.”
Perhaps that “peculiar preamble” was an attempt by certain constitutional scholars, like Tribe, using “esoteric hermeneutics” and their “intellectual powers, to rewrite” the true meaning of the Second Amendment, favoring strict gun control laws. Many gun control Laws, especially in major cities like Washington D.C., Chicago, and New York, have denied average Americans the right to defend themselves.
Unfortunately for Tribe and his ilk, who favored strict gun control laws, other scholars subsequently began arguing that “private gun ownership . . . may not be abridged by Congress or perhaps even by state and local governments.” These scholars, who supported the individual right to keep and bear arms, had an ally on the Supreme Court, Justice Clarence Thomas. With a Justice on the Supreme Court and many other scholars arguing that the Second Amendment supported an individual right, Tribe, reluctantly, was forced to address those challenges.
Tribe concluded his Second Amendment discourse with the following statement, hoping that the Courts would continue to let state and local governments restrict the individual right to keep and bear arms:
“Today, the jurisprudence of the Second Amendment is radically underdeveloped, largely because it has been mistakenly interpreted in binary terms: either the Amendment confers a personal right, in which case all forms of gun control are presumptively (or perhaps conclusively) unconstitutional, or it does not, in which case there is assumed to be no constitutional issue at all. If the Second Amendment does indeed play a role in securing some kinds of individual rights as well as securing a degree of state sovereignty, that role will have to be defined by careful argument from constitutional text, structure, and history.”
Since the release of Tribe’s Treatise in 2000, there have been three major Supreme Court decisions examining the individual right to keep and bear arms for self-defense under the Second Amendment, Heller (2008) out of Washington, D.C., McDonald (2010) out of Chicago, and, just recently decided on June 23, 2022, New York State Rifle & Pistol Association, Inc. v. Bruen, Superintendent of New York State Police.
In Heller, the Supreme Court held that the Second Amendment protected the right to keep and bear arms for the purpose of self-defense in the home in Washington, D.C. As usual, the Supreme Court punted and left the question open, implying to the gun control advocates, that once you leave your home, you no longer have a right to defend yourself with a weapon; and, that this was a limited decision that did not apply to state and local governments.
Several years after Heller, the McDonald decision expanded the right to keep and bear arms to state and local governments, concluding that the Fourteenth Amendment incorporated the Second Amendment right recognized in Heller, to keep and bear arms for the purpose of self-defense.
Despite the McDonald decision, six states and the District of Columbia, along with many municipalities, aided by decisions of lower courts, continue to maintain, and pass strict gun control laws, which effectively deprive many Americans of their inalienable right to self-defense; and their constitutionally protected right “to keep and bear Arms” under the Second Amendment.
Does anyone believe that the Founders wanted to restrict the carry of firearms outside the home?! Or that only Americans living in the South, or the West, can defend themselves but, in New York City or Chicago or Washington, D.C., the right to self-defense does not exist?! Thomas Jefferson stated, “No man shall ever be debarred the use of arms. . . The beauty of the second amendment is that it will not be needed until they try to take it. . . Every citizen should be a soldier. This was the case with the Greeks and Romans and must be that of every free state.”
George Washington stated, “A free people ought . . . to be armed . . .” George Mason asserted in a debate, “. . . to disarm the people—that was the best and most effectual way to enslave them.” And, as John Adams explained, “Resistance to sudden violence, for the preservation not only of my person, my limbs, and life, but of my property, is an indisputable right of nature which I have never surrendered to the public by the compact of society [e.g., the Constitution], and which perhaps, I could not surrender if I would.”
Despite the ordinary meaning of the Second Amendment—"the right of the people to keep and bear Arms, shall not be infringed”—along with the writings of the Founding Fathers supporting this ordinary or plain meaning and the Heller and McDonald decisions, the Supreme Court again had to decide whether the Second Amendment guarantees ALL Americans the right to carry concealed firearms outside the home for self-defense. In New York State Rifle & Pistol Association (June 23, 2022), Justice Thomas delivered the majority opinion, “The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’ The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-clause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.”
After 14 years since Heller and 135 pages of verbiage in New York State Rifle & Pistol Association, it would appear ALL Americans NOW have a right to keep and bear arms throughout the United States. Unfortunately, this is not true because the Supreme Court did not do its’ job 14 years ago and again, failed miserably to do its’ job on June 23, 2022.
What is the job of the Supreme Court? According to Chief Justice John Roberts, “my job is to call balls and strikes.” No, it’s not! NOT in a Free Republic! Justice Joseph P. Bradley (1813-1892), who served on the Supreme Court for 22 years, understood, “It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments [by Congress and Government.]”
About 122 years ago (1900-to-1932), the Supreme Court began turning its’ back on “the constitutional rights of the citizens.” By 1937 the Supreme Court reversed course completely and stopped protecting economic rights. Then in 1938 they removed the impediment to Leviathan by inventing the concept of “fundamental” and “non-fundamental” rights. If a right was deemed fundamental, like voting or speech, the Court would apply “strict scrutiny” and find the law unconstitutional but, with respect to a “non-fundamental” right, e.g., property, contract or any of the rights exercised in ordinary commercial relations, the Court would side with Government, if there was some “rational basis” for the law.
The Supreme Court’s distinction between “fundamental” and “non-fundamental” rights defies logic. Most Americans speak of freedom of speech, freedom of the press, religious freedom, and economic freedom, ad infinitum, as if they are different things. But, as Herbert Spencer stated, “the distinction is quite arbitrary. They are parts of the same whole and cannot philosophically be separated.” In 1789, Thomas Jefferson wrote, “There are rights which it is useless to surrender to the government, and which governments have yet always been found to invade.” These include “the right of free commerce; [and] the right of personal freedom.”
Freedom or “rightful liberty” was explained by Jefferson: “. . . rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often the tyrant’s will, and always so when it violates the right of an individual.” The Supreme Court has sided with the tyrants or power-elites that control government and has failed to protect the constitutional rights of ALL Americans.
The New York State Rifle & Pistol Association decision is one of the most recent examples of the Supreme Court’s failure to protect the constitutional rights of ALL Americans, changing nothing since it’s dismal performance in Heller 14 years ago. On the surface, it looks promising, “We . . . now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
Unfortunately, buried in the 135-pages of verbiage are details as to how the States and local municipalities may continue to deny the rights of citizens “to keep and bear Arms.” For example, “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” “. . . we are also aware of no disputes regarding the lawfulness of such prohibitions. . . modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible. . . the right to bear commonly used arms in public [is] subject to certain reasonable, well-defined restrictions.”
Justice Thomas delivered the majority opinion; Alito, Kavanaugh and Barrett filed concurring opinions; and Breyer filed a dissenting opinion, joined by Sotomayor and Kagan. Although I applaud Justice Alito’s concurring opinion in response to the dissent—i.e., “the real thrust of today’s dissent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit”—he mucks up the waters by writing, “Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. . . Nor have we disturbed anything . . . about restrictions that may be imposed on the possession or carrying of guns.”
Justice Kavanaugh also continued to provide a roadmap for States and local municipalities to interfere with an individual’s right to keep and bear arms, e.g., “the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense [and] regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.” Kavanaugh further wrote, “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” are acceptable.
The ink has yet to dry on the New York decision, and according to the Crime Prevention Research Center (CPRC), “. . . states are putting all sorts of roadblocks to people getting concealed handgun permits. For example, New York is proposing asking for access to people’s social media accounts to determine if they can be trusted with guns . . . they have a very long list of prohibited places [where you cannot carry a firearm] and 18 hours of training.”
It has been 14 years since Heller, and nothing has changed. The Supreme Court has provided a roadmap for State and local municipalities to effectively make the “right to bear arms in public for self-defense . . . ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees’.”
The Second Amendment states, “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.” The Supreme Court conveniently ignored four words or the “plain text” i.e., “shall not be infringed!” Not only did they ignore these four words, but the Supreme Court also explained exactly what laws would be acceptable to infringe on “the right of the people to keep and bear Arms.”
As has been the case for at least the past 85 years, the Supreme Court has called “balls and strikes” favoring government power and control at the expense of individual freedom, leaving Americans “with a constitutional carcass.” Many important opinions have been 5-to-4 split decisions. In this most recent gun rights case, 6-to-3 with five separate opinions. If nine of the best legal experts in the country cannot agree on what a statute or regulation means, how are average Americans to understand the law!?!
We are at a critical juncture. To avert another revolution, it is imperative to change the rules of the Supreme Court through a measured transformation to restore individual freedom. The following rules should be promulgated by the Supreme Court:
Unanimity is required, otherwise the legislation or regulations are deemed void-for-vagueness and unconstitutional.
All justices must use the same method of constitutional interpretation using the Doctrine of Freedom or “Rightful Liberty” or the “presumption of liberty.”
The Supreme Court must be required to review ALL cases that concern constitutional issues that suggest an infringement upon “unalienable Rights” to life, liberty, and the pursuit of happiness or property, to include the right to earn a living, contract disputes with government, and the right to self-defense of persons and property.
A detailed explanation and support for the rule changes can be found in Take Politics Out of the Supreme Court and Restore Freedom.
As for packing the Supreme Court, by changing its own rules, 13 Justices could be divided into three 4-member Courts, with one roving member to break ties if the Court does not adopt unanimity. This would enable the Court to hear three times as many cases each year. In other words, the Supreme Court, under Article III, can make and change its own rules, just like the House and the Senate, i.e., it can decide how current and future justices are to be assigned cases.
The Supreme Court may be our last hope. As Dr. Will Durant stated, the great experiment in individual freedom, which only began in 1776, “may yet be defeated by the high birth rate of unwilling or indoctrinated ignorance.”
Will the Supreme Court step up and exercise its’ constitutional authority under Article III to protect the individual rights of all Americans against encroachments by Congress, the President, and all agencies of the federal and State governments?
Dum Spiro, Spero—While I breathe, I hope.
Slainte mhath,
Robert G. (Mike) Beard Jr., C.P.A., C.G.M.A., J.D., LL.M.
PS: The Supreme Court just might do the right thing if the Court Packing Scheme moves forward, and the Justices are forced to read Take Politics Out of the Supreme Court and Restore Freedom, Take Politics Out of the Supreme Court and Restore Freedom - Kindle edition by Beard, Robert G. . Professional & Technical Kindle eBooks @ Amazon.com. Why not purchase a copy, read it, then send it to a member of the Supreme Court; encourage family, friends, neighbors, and associates to do the same!