Tuesday, March 27, 2018

Apparently A Supreme Court Justice's Oath To Uphold And Defend The Constitution Has An Expiry Date

At least when it comes to the Second Amendment.

The oath taken when a justice is sworn in states:

“I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

The Detroit News: Retired justice urges repeal of Second Amendment

Retired Supreme Court Justice John Paul Stevens is calling for the repeal of the Second Amendment to allow for significant gun control legislation.

The 97-year-old Stevens says in an essay on The New York Times website that repeal would weaken the National Rifle Association’s ability to “block constructive gun control legislation.”

Stevens says the decision in that case, District of Columbia v. Heller, “has provided the N.R.A. with a propaganda weapon of immense power.” Stevens retired from the court in 2010, after more than 35 years.

Stevens was on the losing end of a 2008 ruling in which the high court held that the Second Amendment gives individuals the right to own a gun for self-defense. He had previously called for changing the Second Amendment to permit gun control.

We could put it down to a 97-year old going senile, or instead that the foolish progressive dream of gun bans, and resultant control of the populace to enforce their progressive program does not diminish with age.

Update: Upon further thought and consideration, my opinion in this post was rather overstating the case. Mea Cupla. Please disregard the above portion before the quote from the Detroit News article and We could put it down to a 97-year old going senile, or instead that the foolish progressive dream of gun bans, and resultant control of the populace to enforce their progressive program does not diminish with age. . I do stand by that as an accurate opinion at least. Thanks much.


Old NFO said...

Seems like he's finally showing his true colors...

Aaron said...

Old NFO: He's always been on the progressive side of the court. Now he's gone full sour grapes for his side losing Heller and MacDonald.

Tam said...

Point of Order: Amending the Constitution can hardly be treason, else the process for doing so would not be right there in the document itself.

Did the people who called for the 13th Amendment commit treason?

I wish my team were not so linguistically sloppy.

Aaron said...

Tam: The word "treason" which has a specific legal meaning, is not used within the post, at all. I agree wholeheartedly about my team not being linguistically sloppy.

Tam said...

Fair enough, and I overstated my case. I will edit the post at my blog accordingly.

Tam said...

Now it reads "Apparently calling to amend the Constitution is a violation of the oath taken to uphold and defend said document by some of my compatriots. I wonder if that line of thinking extends to, say, those who called for the 13th Amendment?"

Would that be more accurate?

Sigivald said...

I'm with Tam on this one.

1) Oaths like that do last for the length of holding the office, not For Life. Stevens is retired, so no longer bound by it.

(I mean, note the last clause, about duties of the office. He can't have sworn discharge them past holding the office, nor is any oath the Feds ask for for an office ever, that I know of, taken to extend past leaving office. The only lifetime oaths I know of are those for naturalization, which is a permanent condition.)

2) "Support and defend" allows, as suggested, for the use of the Amendment process, since that is part of the Constitution; otherwise no Amendment would ever be possible, since Congress also swears the same thing. Interpretations that make entire clauses inactive are going to be rejected under basic rules of textual and statutory interpretation, for obvious reasons.

3) To "support and defend" seems most plausbily only to be of the Constitution as a binding and controlling document; calling for the 2A to be repealed is an affirmation that it is binding law of the land, and thus cannot be incompatible with the oath.

I disagree entirely with Stevens on the wisdom of such a move, but proposing it would not violate his oath even if he was a sitting Justice, let alone as a retired one.

.45ACP+P said...

The sentiment is where Stevens has always been. He hates any part of the Constitution that interferes with how he thinks things should be run. He does get credit for suggesting to make change the constitutional way rather than skirting the existing laws and doing whatever takes his fancy and hoping for the best. I disagree with his view but acknowledge that his suggestion is the only legal way it can occur.

Aaron said...

Tam: I'm not a supreme court historian by any means but I have found no evidence at all of any supreme court justice calling for the repeal of the 13th Amendment - ever.

Calling for an amendment is rather substantially different from calling for a repeal of an Amendment that has been in effect for a few hundred years, wouldn't you say?

Further, I may indeed have been intemperate with the post and will happily concede to you Sigvald and 45ACP that it would not now violate his oath of office.

Dishwasher Philosopher said...

Aaron: I'm curious where you stand in regards to the 18th and 21st amendments then? I agree with others who've stated that while they do not agree with his opinion that opinion in no way violates his oath of office, either as a sitting or retired justice.

Aaron said...

Dishwasher Philosopher: It was Tam that brought up the whole 13th Amendment brouhaha into this conversation for whatever purpose, not myself.

I have not expressed any opinion on the 13th, 18th, or 21st Amendments to date in this conversation and I'm also unaware of any sitting or recently retired supreme court justice who has called for their repeal.

As to the rest of your comment, see the update made before your comment or the comments before yours.

Tam said...
This comment has been removed by the author.
Tam said...

Sigh. Sorry for charging to the comment box before reading the entirety of the thread. I hate it when people do that. ;)

Mea culpa.

fast richard said...

I think the original amendments that we call the bill of rights deserve a certain level of protection from repeal as they were demanded as a condition of ratification of the constitution. This does not change the legal requirements for constitutional amendment, but proposals to change those amendments should be subjected to public scrutiny and usually ridicule. I would place the post Civil War amendments 13-15 in the same category. Diminution of the protections in any of these amendments would diminish the legitimacy of our government.

Amendments on how we elect Senators, how we collect taxes, or what intoxicants might be legal to sell are not in the same category.

pigpen51 said...

Fast Richard,
I have to disagree with you on that point. We must give each and every part of the constitution the same respect that we give to any other part of it. Or else we will find that it becomes too easy to have people relegate parts of it to the back corner, and ignore it, or say that it is not as important and we can not give it the same level of honor that we give say the first 10 amendments, or the parts that deal with how we set up our congress, or some other part that the person talking wishes to push to the forefront.

As far as any amendment being more important than another, I also don't think so. Once the amendment was passed, it became not an amendment,but a part of the constitution itself, and therefore just as important as any other part. That the former Justice was liberal and disliked this amendment, and chose to voice that opinion, is part of what makes our country work. Everyone has the right to voice their opinion. And if he had voiced that opinion while in office, he would have still been within his rights as a U.S. citizen. One doesn't give up their rights when they take a vow to uphold the constitution. We have many in the military who hold many differing opinions, that have vowed to protect the constitution. Taking the vow to protect the constitution is a choice, and is taken on willingly, but it does not take away your right to think and speak.

There is a reason that the constitution is able to be changed, but there is also a reason the it is not an easy task. If things were to change in this world to the point where the super majority of people in this country desired to make this a gun free country, then it would be a reasonable option to do away with the 2nd amendment. Just like the choice of doing away with the consumption of alcohol. If people didn't like that and wanted to bring it back, then they could do that as well, which they did.

Simply liking certain amendments more than others or thinking some more important than others does not make it so.