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A Court Full of Jesters

Monday, December 19, 2016 11:52 | Anonymous

PETRUCHIO

Come on, i' God's name; once more toward our father's.

Good Lord, how bright and goodly shines the moon!

KATHARINA

The moon! the sun: it is not moonlight now.

PETRUCHIO

I say it is the moon that shines so bright.

KATHARINA

I know it is the sun that shines so bright.

PETRUCHIO

Now, by my mother's son, and that's myself,

It shall be moon, or star, or what I list,

Or ere I journey to your father's house.

Go on, and fetch our horses back again.

Evermore cross'd and cross'd; nothing but cross'd!

HORTENSIO

Say as he says, or we shall never go.


The 9th Circuit went down right Shakespearean this last week.  Like Petruchio they demand that we refuse the obvious, and accept a fallacy.  On base level this is an annoyance. On a deeper level our mistrust of the judiciary has risen substantially.


(If you have arrived here from our newsletter, continue reading here)


Case background of Silvester v. Harris


Silvester argued before Judge Ishii (A US District Judge) that the ten day waiting period was volatile of the Second and Fourteenth Amendments in as much as it restricted existing gun owners from immediate access to a new firearm.  The logic behind the ten day is two fold.  First it allows the Department of Justice time to conduct a background check to ensure that the individual purchasing the firearm is legally allowed to do so.  Secondly it allows for a “cooling off” period.  If someone is intent to engage in a malicious act with the firearm the ten days will hopefully allow that individual to “cool down” and allow for more rational decisions.


Judge Ishii essentially said that the ten day waiting period for existing gun owners had no rational basis for it’s existence.  Most states use an instant background check system, so the technology clearly exists for rapid determination of criminal status.  


As for a “cooling off” period it simply does not pass the smile test.  The purchaser could legitimately be wearing a firearm on their hip at the time of purchase.  What benefit would a “cooling off” period allow?  If they are intent on committing mayhem, why would they delay that criminal act by ten days for a specific weapon?


The State appealed, and the Ninth Circuit, reversed saying that the waiting period made perfect sense.


Their reasoning was truly mind numbing.  First they stated that historically people had to wait for delivery of products, so having to wait for a gun was a minor imposition.  


Historically?  What the hell does that have to do with anything?


Secondly,… the weapon that they currently own may not be “appropriate” for mass casualty crime.  Maybe they really really need an AR-15 to take down a shopping mall, and their shotgun just won’t do.


Again… huh?


If this were a rational argument then they could simply have existing exemptions for classes of weapons.  Your first handgun… yeah, you got to wait 10 days for that.  Once you own one, subsequent handgun purchases do not require the wait.  


Already have a semi-auto rifle in the safe at home?  No need to wait for your second one… oh, don’t have one yet?  You only have a pistol… hmmm… well then for this rifle you will need to wait 10 days.


That at least would have made rational sense.  Instead the 9th left us with this little gem:


“An individual who already owns a hunting rifle, for example, may want to purchase a larger capacity weapon that will do more damage when fired into a crowd. A 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment”


WTF???


Francis Fukuyama in his work “Trust” essentially argued that the fabric of our society… and the basic functionality of that society is essentially a construct based on trust.  We trust in the intent of all parties to a financial transaction, and if our trust was misplaced we trust in the courts to act as a fair an impartial arbiter of our disputes.


When trust is broken the reliance turns to the law, when reliance on the law jeopardized Lord help us.  


We place the law making portion of our government in the legislature, because legislators need to stand for election.  When they legislate through arbitrary and capricious edicts our remedy is to relieve them of their offices.  


When the judiciary acts as the legislature they craft laws with impunity.  There is no need for the justices to stand for reelection.  When their decisions are based on a desired policy outcome, as opposed to an application of facts the quality of the law they “produce” becomes even more degraded.


There is a breaking point.


When that happens societies fail.  It has happened repeatedly throughout human history.  There is no reason to assume we are inoculated. 


Silvester v. Harris is one more step in that direction.


Petruchio was not interested in Kate “believing” that the sun was the moon.  He only wanted to assert that her reality was controlled by him.  Much as we can only assume the 9th Circuit has little interest in us “believing” in their rational.  

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