Under our current erroneous system, Supreme Court precedent is more powerful than God, certainly much more than any other branch of government. But that’s only true when SCOTUS decides to nullify the Constitution and natural law. When the Supreme Court decides to recognize the plain meaning of the Constitution in a particular case, then precedent means nothing, and states and lower federal courts are free to violate it with impunity.
That was essentially the message from the Supreme Court yesterday when it refused to grant an appeal of yet another lower court ruling that violated its Heller decision. This proves, once again, that the Supreme Court is a one-way street and a dead end on the Constitution. We will lose our country to judicial supremacy that is destroying the states and preventing the federal government from following the Constitution. It appears that not even the SCOTUS will rein in states that violate the most foundational portions of the Bill of Rights.
With this ruling, the Supreme Court telegraphed the message to the radical district and circuit courts that the Second Amendment and the inherent right to self-defense are not really rights and that the Heller decision was a joke.
Unlike red states that obsequiously follow the letter of every lawless court decision, blue states immediately began pushing back against Heller. They maintained or expanded both anti-carry laws and bans on AR-15-style rifles and all handgun magazines with a capacity greater than 10 rounds. And unlike conservative lower court judges, liberal ones are willing to push back against Supreme Court decisions. Almost every circuit has upheld these state laws. Yet the Supreme Court has consistently declined to grant certiorari to gun-rights organizations appealing the decisions.
The Fourth Circuit ruling at issue here was particularly egregious, as it upheld Maryland’s ban on misnamed “assault weapons” and larger magazines. The Fourth Circuit literally used Justice Breyer’s dissent in Heller instead of the majority opinion. In Kolbe v. Hogan, 10 of the 14 judges on the radical Fourth Circuit ruled that 45 commonly owned semi-automatic rifles are military weapons and are therefore not protected by the Constitution. The court used Breyer’s dissent to create a state interest-balancing test to limit the Second Amendment, a test explicitly rejected by the majority opinion.
There are clearly at least six justices, presumably including Kennedy and Roberts, who are speaking loudly with their silence and refusal to grant an appeal. The court also refused to grant certiorari to those appealing the Florida ban on open carry.
Making this more than tragic for Marylanders is that violence in the Baltimore area is spiraling out of control while MS-13 activity in Montgomery County has reached new levels. Despite these tough gun laws, or more likely because of them, Baltimore has become a war zone, with cops mowed down by criminals and suburbs plagued with car-jackings. Yet law-abiding citizens are the only ones who can’t carry firearms. As a resident of central Maryland, I laugh when liberals question the need for larger magazine capacities. They should come to Baltimore, and they will see that the cowardly hyenas often travel in packs when they attack people. They are also souped up on drugs. For citizen self-defense, there is a need for as many bullets in the pipe as one could carry.
There’s also a very important lesson here for those on the “legal right” who refuse to recognize the judicial emergency, be truthful about the proper role of the courts, and support Congress in taking back power from the judiciary. They seem to think that we can use judicial supremacy to our benefit to “strike down” unconstitutional state and federal laws/actions the same way the Left uses it to strike down the building blocks of society, such as sexuality, marriage, life, and immigration laws. This case is a testament to the fact that the judiciary is a one-way street and a dead end for conservatives.
Heller was one of the very few victories, and perhaps the greatest, that we’ve achieved through the concept of judicial supremacy over the past decade. But the Left feels no constraint in pushing back against precedent. Just look at what the lower courts have done with marriage and immigration, two areas in which precedent had both great weight and long history behind it.
Justices on the Supreme Court are extremely political. They are willing to violate the Constitution on an earth-shattering political issue but will only do so if they feel public opinion is behind them. They use the lower court judges as their advance guard because so many of them are shameless. They create jurisprudential velocity over time and help sway public opinion. This is how Kennedy was able to arrive at Obergefell just two years after writing that states have plenary power over marriage. For two years, the lower courts shamelessly abolished marriage, so that by the time it came before the Supreme Court, nobody cared about sound legal arguments any more. The political die had been cast.
Therefore, for those still reluctant to exercise congressional control over the jurisdiction of the courts, remember that there will be no return to the glory days of Lochner, when “conservative judges” upheld economic and personal liberties in the face of liberal political decisions. On the other hand, by continuing to legitimize the specter of judicial supremacy, we are losing election districts, election integrity laws, basic regulations of abortion, marriage, religious liberty, the ability to enforce immigration law, and even the ability to keep suicidal mental illness out of the military. Nothing is beyond the reach of the federal judiciary. We are getting no trade-offs that are worth the price of judicial supremacy.
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.