Firm Foundation

At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.

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Firm Foundation and the Foundation for Moral Law reluctantly announce that its inestimable attorney and blogger Greg Jones has taken his talents and insights on to another position.  We wish him well in his new ventures and pray the Lord continues to use Greg to restore the moral foundations of the law.  His absence will be painfully felt here, especially on the pages of this blog, where his brilliant legal analysis and grasp of constitutional principles are unparalleled and probably irreplacable.  The work here continues, as will this blog, as we build upon Greg’s efforts with thankfulness and fond memories of his time here.  Godspeed, Dr. Jones!

The Founders understood the God-given role of government and sought to craft a constitutional government that both accounted for and restrained man’s fallen nature.  They understood the dangers of a monarch but also were wary of the lawless anarchy inherent in a pure democracy.  Thus, a constitutional republic was chosen as the best balance for order and liberty.

Just as God ordained the authority of civil government, however, He also gave it limited jurisdiction.  Only the Most High may demand unlimited submission from the people.  And it is only when the civil government—whatever its form–recognizes that it is “under God” that the people enjoy the peace, freedom, and order that God intends civil government to provide.  As Ronald Reagan so eloquently stated on Aug. 23, 1984, “If we ever forget that we’re one nation under God, then we will be a nation gone under.”

Judge Moore’s latest column discusses China’s persecution of Christians in light of the upcoming Olympic Games.  Instead of reducing its oppression leading up to the Games, the Chinese government has cracked down even more on house church leaders, dissenters from the regulated church, and any who speak out about religious freedom in China.  While the government brags about allowing 50,000 government-sponsored Bibles to be distributed at the Games, it counsels all who travel to the Games to take at most one Bible with them, and not to distribute any Bibles for “propaganda” purposes. 

Judge Moore notes that Americans cannot really comprehend the kind of persecution Chinese Christians endure because of the legacy of religious freedom our Founders established with the Constitution and Bill of Rights.  But he also cautions Americans to be vigilant about protecting that freedom, as there are signs that it could be taken over time by an unwieldy government if it becomes controlled by those who fail to see the importance of religion to society’s survival. 

Most of all, Judge Moore counsels readers to remember that God can turn “all things together for good” (Romans 8:28), even persecution.  China is proof of this because Christianity is growing by leaps and bounds in the country despite the government’s best efforts to keep it under control.

In 1993, the late New York Senator Daniel Patrick Moynihan wrote an essay in which he argued that America had grown accustomed to alarming levels of crime because society was “defining deviancy down.”  By this Moynihan meant that sharp increases in violent crime had the effect of redefining what constitutes “deviant” behavior such that what was previously considered unacceptable behavior had become more normal because worse crimes were being committed more often.  In other words, societal standards of morality shifted downward as a way of coping with rising crime rates. 

Enter retired New York University Religious Studies Professor James Carse, who has written a new book titled The Religious Case Against Belief.  In his book, Professor Carse essentially does to the concept of religion what violent crime did for the concept of deviancy in the early 1990’s: he defines religion downward to such a degree that it hardly means anything at all.  Yet, what is perhaps even more frustrating is that Carse pretends to be enamored by religion even as he scoffs at the notion that any real truth is contained in any religion.

Salon.com, an extremely liberal website, has posted a long interview with Carse about his book.  Interviewer Steve Paulson begins his article with the tired (and completely erroneous) observation that all the conflicts around the world “seem to be driven by religious hatred.  It’s enough to make you wonder if the animosity would melt away if all religions were suddenly, somehow, to vanish into the ether.”  That is the same argument which “neo-atheists” Christopher Hitchens and Sam Harris often make about religion: it is the cause of all the strife in the world.  Professor Carse does not like the new atheists, saying (in one of his few correct and coherent observations), “What these critics are attacking is not religion, but a hasty caricature of it.”  But then, Carse does not seem to like real religion either. 

Professor Carse’s aim, according to Salon, is “to rescue religion from both religious fundamentalists and atheists.”  His argument seems to be that religion is not about true faith at all; it is about “longevity.”  He defines religion as a system of belief that has lasted a long time, though he seems to think that none of the religions really know what they believe.  Religion, Carse says, “is about mystery and unknowability,” not “transcendence or belief in an afterlife.”  He tells us that “[r]eligion in its purest form is a vast work of poetry.”  I don’t know what this means, and I doubt Carse does either. 

In the course of attempting to explain himself, Carse confidently proclaims that the “great religions” of the world are “absolutely different.”  This observation is somewhat refreshing in an age where we so often hear the mush that all religions are the same and lead to the same thing.  The “can’t we all just get along” theory of religion ignores the distinct claims on truth that most religions make, such as the Islamic claim that there is only one God and his name is Allah, the Hindu claim that there is no such thing as Hell, and the Christian claim that the only way to God is through Jesus Christ.  These statements cannot be reconciled with other religions, and those who try to do so merely demonstrate their ignorance of one or all of these religions.  However, it is unclear to me why Professor Carse bothers making this observation since his major theme about religion is what they allegedly have in common: ”longevity” and the ability to appeal to the “mystery” in life.   

After waxing about religion generally, Professor Carse then spends some time in the interview taking pot shots at Christianity.  First, he claims that the debate in Christianity over who the real Jesus was “says nothing” because he does not think the New Testament accounts of Jesus are credible.  He seems to base this on the fact that the Gospel accounts were written as many as 90 years after Jesus lived on earth.  Carse is entitled to his opinion, of course, but as a religion professor one would think he would offer stronger evidence than a time-line to refute the reality of Jesus.  The time-line is one piece of evidence, but how does Carse explain why so many disciples sacrificed their lives on the claim that Jesus is God’s son or how such a supposedly scant historical figure was able to inspire a religious change throughout the entire Roman world within 300 years of His death? 

Professor Carse then pontificates that “Christianity is losing its resonance.  It’s history looks to be more a matter of decades than millennia.”  Thus another prediction of the impending demise of Christianity comes to the fore, and like the thousands of prognosticators of the past on this subject, Carse simply demonstrates his ignorance.  It would be one thing to say that Christianity in the West seems to be on the decline, a statement that I think is inarguable.  But it also happens to be exponentially on the rise in places like China, Africa, and South America.  The result is that there are more believers in Christianity at this time than ever before—hardly the right time to be predicting its doom. 

More interesting than these pathetic pot shots is the fact that Professor Carse does not subject any other religion to doubt about its founder or its future.  Christianity apparently holds a special place of derision in Carse’s heart, which makes you wonder whether he is really as dispassionate about the study of religion as he claims to be.  Regardless, Professor Carse is clearly confused about the nature of religion because he says things like “you can be religious without being a believer.”  This is a true statement, so far as it goes, with the Pharisees coming to mind as quintessential examples since they were very religious but did not believe that Christ was the Messiah.  But it misses the point of what religion is supposed to do: connect people to God.  And that connection cannot be established without belief in God; otherwise it simply makes no coherent sense.

Professor Carse admits that Christianity in particular focuses on belief, but he claims that “when you look at the history of Christianity [i]t’s not at all clear what exactly one should believe.”  This is, again, simply wrong.  There have been various heresies throughout the history of Christianity, but the core of what it means to believe has not changed at all.  But he is equally offensive toward Judaism, saying, “To be a Jew is really to be an active, practicing Jew.  It’s a way of living a certain kind of life, not believing something.  In my judgment, you can be a very good Jew and have very little sense of transcendence.”  Again, all this establishes is that someone can go through the motions of the things people typically associate with Judaism without actually being an adherent.  It proves nothing, other than the fact that people can be superficial or hypocritical; it does not change the meaning of religion. 

Considering all of this, it seems clear that what irks Professor Carse most in religion is true belief.  He theorizes, with obvious disapproval, that we are in a second “Age of Faith.”  The first Age of Faith, he says, began withthe Crusades and was a “terrible” era of conflict because of unwavering faith in what he calls “belief systems.”  He says we are “back in that crusading spirit” and cites the bloodiness of the 20thcentury as proof of this supposed fact.  Of course, he conveniently leaves out the fact that most of the murderous death in the 20th century was caused by atheistic, political regimes like the Nazis, the Khmer Rouge, and the Communist Party of the Soviet Union. 

Worse than his historical flub, though, is that Professor Carse is equating true belief with physical and violent coercion when that is, in fact, the exact opposite of true belief.  As James Madison explained in the Memorial and Remonstrance of 1785, “[t]he Religion . . . of every man must be left to the conviction and conscience of every man . . . because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.”  In other words, true belief cannot be coerced because it must flow from an individual’s own conviction and conscience. 

By removing the core element of belief from his definition of religion, Professor Carse turns religion into nothing more than a cosmic philosophy that gives expression to things we cannot comprehend in our limited finite state as human beings.  But such a definition of religion makes God nothing more than a figment of the imagination.  I am perplexed as to what Professor Carse finds so awe-inspiring about that.

In the end, Professor Carse is what he claims not to be: an arrogant thinker.  He claims superior knowledge of religion because he says he knows that it teaches us about our ignorance.  He seems to think he has stumbled upon some grand idea in the fact that as humans our knowledge is limited and thus there will always be mystery about life and the universe.  He uses that observation to say that it shows that religions are nothing more than discussions about this mystery which cannot have an answer.  In this way, his knowledge of his ignorance makes him caustically arrogant because he is essentially laughing about the fact that ordinary people dare to believe that they can know some truth and desire to act on that truth.  He is very much like philosopher David Hume, though he feigns more reverence for religion than Hume ever bothered to do.   

What Professor Carse misses is that at least some believers know that the existence of God means there is a vast universe of things about which they will never understand, but because they trust in God and communicate with Him, they do know something outside of themselves and can speak to the truth of it.  It is this truth, and not just the mystery, that enables religion to transcend time and place.

Last week the 4th Circuit Court of Appeals unanimously affirmed a district court decision in Turner v. City Council of the City of Fredericksburg, Virginiathat the Constitution does not prevent a city council from instituting a rule requiring all public prayers from council members to be “non-sectarian.”  The lawsuit stems from the actions of Fredericksburg, Virginia city councilman and minister Hashmel Turner.  The city council opens its meetings in prayer and designates a member of council to do so on each occasion.  When Rev. Turner prayed, he unsurprisingly closed his prayers “in the name of Jesus.”  In July 2004, the ACLU of Virginia wrote Rev. Turner and the other council members threatening to sue the city if Turner did not cease is references to Jesus in his prayers.  The city council responded to the threat by instituting a rule requiring board members to pray in a non-sectarian fashion.  The council also skipped Turner in the rotation for prayer offerings for over a year because Rev. Turner had said he would continue to pray in the name of Jesus if he was given the opportunity to pray. 

Disappointed with the council’s solution, Rev. Turner filed a federal lawsuit against the city council in November 2006 claiming that the non-sectarian rule violated his constitutional rights to freedom of speech and the free exercise of religion.  A federal district court ruled against Rev. Turner and he subsequently appealed to the 4th Circuit Court of Appeals, which led to this week’s ruling.  Former Supreme Court Justice Sandra Day O’Connor, sitting on the case by special designation, wrote the brief 7-page opinion in the case, and concluded that the city council’s rule requiring “non-sectarian” prayers did not violate Rev. Turner’s First Amendment rights. 

Justice O’Connor has an abominably poor track record in religion cases marked by invented judicial tests and illogical results.  For example, just last year in the 8th Circuit Court of Appeals when she was also sitting by special designation, Justice O’Connor joined a decision which proclaimed that the Establishment Clause of the First Amendment prohibited the state of Iowa from funding a rehabilitation program in its prisons run by Prison Fellowship Ministries because PFM uses Christianity to help turn around prisoners’ lives.  The number of her wayward opinions in religion cases while she was on the Supreme Court are legion.  Thus, it comes as no surprise that Justice O’Connor effectively ruled against the minister in this case and that she did so based on dubious tests and precedents. 

However, Justice O’Connor actually arrived at the right result in this case because, under the original understanding of the Constitution, neither the free speech nor free exercise rights of Mr. Turner were violated by the council’s “non-sectarian” prayer rule.  The Free Speech Clause does not permit city councilmen to say whatever they want in council meetings, let alone pray in the manner they want when such prayers are part of a public meeting.  As the Foundation has explained in detail in one of its briefs, the Free Speech Clause protects “political speech,” which to the Founding generation meant communication to others concerning public measures or the conduct of public officials.  Prayers are not political speech regardless of the content of the prayer because they are intended to be communication with God, not communication with fellow council members or citizens.   

The Free Exercise Clause likewise is not implicated in this case because it concerns the use of government power to conform or curtail individual religious worship that does not threaten public peace or safety.  (See Foundation brief, pp. 20-21).  Rev. Turner can pray in the name of Jesus any time he is not attending council meetings, and he is not obligated to lead the council in prayer, so his religious worship is not being conformed or curtailed.  Thus, though she does not employ proper constitutional reasoning, Justice O’Connor correctly affirmed the denial of Rev. Turner’s claims. 

More intriguing than the result itself is a statement by Justice O’Connor in the opinion that, “We need not decide whether the Establishment Clause compelled the Council to adopt their legislative prayer policy, because the Establishment Clause does not absolutely dictate the form of legislative prayer.”  This is intriguing because for the last few years the ACLU and Americans United for Separation of Church and State have been writing letters to city councils across the country telling them that praying in the name of Jesus violates the Establishment Clause.  For support of this claim they used to cite a 2005 federal district court case in Indiana, Hinrichs v. Bosma, which outlawed prayers in the name of Jesus in the Indiana Legislature.  However, last year the 7th Circuit Court of Appeals dismissed that case on standing grounds. 

This result forced the ACLU and AU to rely upon the 4th Circuit’s decision in Wynne v. Great Falls, Virginia.  In Wynne, the appeals court concluded that a city council’s continual prayers in the name of Jesus and discouragement of any other kind of prayer constituted a violation of the Establishment Clause.  This was not the same as deciding that prayers in the name of Jesus are prohibited at council meetings, as the 4th Circuit later made clear in Simpson v. Chesterfield County.  In Simpson, the court contrasted the “non-sectarian” prayer policy of the Chesterfield County Board with that of the Great Falls Board, noting that in Great Falls the council “insisted upon invoking the name ‘Jesus Christ’ in an exclusive manner in prayer.”  Chesterfield County, on the other hand, “never insisted on the invocation of Jesus Christ by name, as the Town Council in Great Falls did.”  Mostly on the strength of this distinction, the 4th Circuit did not find the Chesterfield prayer policy to be constitutionally problematic. 

In light of Wynne and Simpson, it seems safe to conclude that Justice O’Connor’s statement that “the Establishment Clause does not absolutely dictate the form of legislative prayer” means that prayers in the name of Jesus will pass constitutional muster in the federal courts (at least in the 4th Circuit, and probably in other circuits as well) so long as the particular legislative body’s prayer policy shows no favoritism toward Christian prayers.  Admittedly, this is not nearly as comforting as a decision that tracks the actual words of the Establishment Clause would be, but it at least beats back the ACLU/AU fiction that courts will declare any prayers in the name of Jesus to be categorically unconstitutional. 

This week the 10th Circuit Court of Appeals unanimously reversed a district court decision in Colorado Christian University v. Baker, concluding that the state of Colorado unconstitutionally discriminated against Colorado Christian University (CCU) by not allowing its students to participate in a state scholarship program because the school was deemed “pervasively sectarian.”  The Foundation filed an amicus brief in the case urging reversal of the district court’s decision in favor of the state based on the Equal Protection Clause of the 14th Amendment.  The brief argued that the the Equal Protection Clause forbids unjustified government discrimination based on religion which is exactly what the state of Colorado did in this case: unjustifiably discriminate against CCU because of its status as a committed Christian school. 

Judge Michael McConnell, a constitutional law expert on matters of religion, wrote the 47-page opinion of the court.  However, Judge McConnell chose not to pick the Equal Protection Clause as the main vehicle for his analysis, stating, “While the Establishment Clause frames much of our inquiry, the requirements of the Free Exercise Clause and the Equal Protection Clause proceed along similar lines.”  This is unfortunate because, as the Foundation’s brief demonstrates, if the decision is based on the actual words of the Constitution, the Equal Protection Clause is the only one of the three clauses Judge McConnell mentions that legitimately applies in this case.  When he was a law professor at the University of Chicago, McConnell wrote voluminously about the original understanding of religious liberty during the Founding era.  But apparently as an appellate court judge he feels more constrained by the precedents of the U.S. Supreme Court.  The opinion thus focuses on Establishment Clause precedents that are notoriously poor in articulating clear principles. 

Be that as it may, Judge McConnell did reach the right result in the case by striking down the religiously discriminatory criteria present in Colorado’s colleges scholarship aid program.  And while Judge McConnell may not have cited the correct constitutional provision for doing so, he did identify the heart of the problem with Colorado’s program, noting that “the discrimination is expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations, as defined by such things as the content of its curriculum and the religious composition of its governing board.”  In other words, Colorado was denying scholarship money to CCU’s students solely because the state deemed the school to be “too religious” for its liking.  The 14th Amendment categorically forbids states from making such a determination. 

Overall, the decision represents a welcome victory that likely will not be appealed to the U.S. Supreme Court.  Colorado probably wrote this discrimination into the law out of fear that it would be sued by the likes of the ACLU or Americans United for Separation of Church and State if it provided scholarship money to all schools without regard to their religious affiliations.  Hopefully this decision will go some way toward convincing state and local governments that they need not discriminate against religious people and entities in order to satisfy the demands of the Establishment Clause.   

The Foundation for Moral Law, along with attorney Aaron D. Martin, represented Christian evangelists Michael Marcavage, Mark Diener, Randall and Linda Beckman, Susan Startzell, Arlene Elshinnawy, and Nancy Major (below), who in 2004 were arrested and charged under the “ethnic intimidation” law for evangelizing at a Philadelphia homosexual parade.  

Several of the "Philly 11" pictured here challenged the constitutionality of Pennsylvania's "ethnic intimidation" law

Several of the “Philadelphia 11″ sued and the Commonwealth Court of Pennsylvania agreed that the law was unconstitutional and struck it down.  On appeal the Supreme Court of Pennsylvania, in a short per curiam order, agreed with the Commonwealth Court’s opinion and the Christian evangelists’ appellate brief filed by the Foundation.

 Judge Roy Moore remarked on this historic case:

“We are very happy that the Pennsylvania Supreme Court has ruled in our favor to stop the Governor and a group of corrupt politicians from sneaking a ‘hate crimes’ bill through the Pennsylvania legislature.  Preaching to homosexuals about the sin of sodomy should not be made a ‘thought crime’ in Pennsylvania or any other state.”

In the appellate brief filed March 17, 2008, the Foundation and attorney Martin argued to the Pennsylvania Supreme Court that the legislature’s altering of an “agricultural crop destruction” bill into an amendment to the “ethnic intimidation” law—making crimes motivated by “sexual orientation,” “gender identity” and other classes subject to greater punishment (Act No. 2002-143, HB 1493)—violated, among other provisions, Article III, Section 1 of the Pennsylvania Constitution:

“No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either House, as to change its original purpose.” 

The Commonwealth Court agreed that the “ethnic intimidation” amendment violated Section 1 and now so has the Pennsylvania Supreme Court.

Michael Marcavage, director of Repent America, also said:

“Having been arrested, jailed and charged with a ‘hate crime’ for preaching the Gospel, I am elated that the Pennsylvania Supreme Court upheld the lower court’s ruling in striking down Pennsylvania’s expanded ‘hate crimes’ law.  The methods used by the Pennsylvania legislature in passing the ‘hate crimes’ bill were extremely devious and yet another chilling example as to how far politicians are willing to go to silence Christian speech that they would violate our own state Constitution to do it.  In a nation that is becoming increasingly hostile toward Biblical Christianity, we remain vigilant as the Pennsylvania legislature will most likely attempt to pass another ‘hate crimes’ bill and are continuing to educate the American people on the significant dangers of such laws.”

Since this was a successful suit challenging the underhanded legislative procedure used to pass the “ethnic intimidation” amendment, Mr. Marcavage is right to call on Pennsylvanians to remain vigilant so that the Pennsylvania legislature does not turn right around and pass such a heinous bill again.

Mr. Marcavage, as you may recall, is still battling in the Massachusetts courts after he was found guilty of “disorderly conduct” for preaching with a megaphone in Salem, Mass., on Halloween night.  The Foundation hopes to obtain the same success for Mr. Marcavage in Massachusetts as was gained in Pennsylvania since private beliefs and public preaching of the gospel—whether to homosexuals in Philadelphia or to Halloween revelers in “Witch City”—should never be made a crime.

America seems to be experiencing a lot of change these days, but not the kind we want to believe in.  Gas prices climb to and beyond $4-per-gallon while the dollar plummets.  Food prices rise while financial giants like Bear Stearns, Fannie Mae, and Freddie Mac seem to be collapsing on a regular basis.  Houses for sale stay that way while mortgage foreclosures reach record numbers.  Of course, political candidates love to capitalize on and even exaggerate our financial woes so that they may cast themselves as the hope we have been waiting for. 

May President Harry Truman’s reminder in his inaugural address remain true today:

The American people stand firm in the faith which has inspired this nation from the beginning. … From this faith we will not be moved.

The mayor, the interim general attorney, and the chief of police for the District of Columbia held a press conference last week to announce the adoption of a temporary handgun permit regulation in the wake of the U.S. Supreme Court’s ruling in District of Columbia v. Heller which invalidated the District’s current regulation scheme.  Instead of acquiescing to the decision that the Second Amendment protects an individual right to firearms ownership for self-defense, D.C. officials decided to thumb their noses at the Supreme Court’s ruling and enact what still amounts to one of the strictest gun regulations in the country. 

 The emergency regulation, which will be in force for 90 days, requires all residents applying for a gun permit to complete an application, pass a written firearms test, provide photo identification, proof of good vision, and be fingerprinted.  All handguns must undergo ballistics tests during the registration process.  Chief of police Cathy L. Lanier stated that the whole process of registration could take anywhere from weeks to months depending on where and when the resident purchased the weapon.  The regulation still places a complete ban on “sawed-off shotguns, machine guns, and short-barreled rifles,” and “machine guns” include all semi-automatic weapons. 

The kicker is that handguns, as well as other legal firearms such as rifles and shotguns, also must be kept unloaded and disassembled, or equipped with trigger locks—unless there is a “reasonably perceived threat of immediate harm” in the home.  General Attorney Peter Nickles stated that this does not mean that residents can keep their guns loaded in anticipation of a problem nor search for an intruder on their property.  The porch is off-limits, Nickles added for good measure, as well as the yard and any outbuildings.  “We do not want people running around with loaded guns outside,” Nickles said, analogizing such a picture to “a Wild West scene.”

D.C. officials know they are picking a fight.  Councilwoman Mary M. Cheh labeled this regulation “a lawsuit waiting to happen.”  Nickles confirmed this judgment, saying he “expect[s] . . . a lawsuit” stemming from the regulation.  And taking the cake for perhaps the understatement of the year, councilman Phil Mendelsen admitted that “this is not perfect legislation.” 

Supporters of D.C.’s draconian gun regulations seemed to think it absurd that they must modify their rules because of the Second Amendment.  Nickles smarted, “We figured it out until the court tells us we haven’t.” Paul Helmke, President of the Brady Campaign to Prevent Gun Violence, complained about the alleged vagueness of the Supreme Court’s opinion, which permits bans on weapons that are “unusual and dangerous.”  “It’s not clear what that means,” Helmke whined.  “This is the problem with getting the courts involved.  These are usually issues that are determined by elected officials.”

The ironies here are rich and thick.  When is the last time you heard a liberal complain about excessive involvement of the courts in public affairs?  Pick up any Supreme Court opinion on the Establishment Clause and you will find it a thousand times more vague than the Court’s opinion in Heller, yet you never hear liberals express any qualms about it.  Abortion represents a quintessential example of the courts injecting themselves into a political matter, but liberals always talk about it in terms of protecting a “fundamental right.”  The Heller case concerns a right that, unlike abortion, is actually stated in the Constitution, yet somehow it deserves a lot less protection than the so-called “right to privacy.” 

Perhaps most ironic of all, D.C. officials are openly and flagrantly contradicting the Supreme Court’s order in Heller.  The opinion specifically states that D.C.’s provision “that firearms in the home be rendered and kept inoperable at all times. . . . makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.”   To modify the regulation simply to say that firearms can be assembled at the moment an intruder is invading your home (but not a second before or after) makes a mockery of the Court’s ruling.  Continuing the ban on all semi-automatic handguns also flies in the face of the plain language of the opinion. 

Despite this, there is no hew and cry about D.C. officials “defying the law” or disrespecting “the rule of law” in the courts.  Apparently such criticisms are reserved for those who defy orders on subjects other than gun control legislation.  Suppose Judge Moore had responded to Judge Myron Thompson’s order that he “remove . . . the Ten Commandments monument at issue in this litigation from the non-private areas of the Alabama State Judicial Building” by moving the monument to the court’s parking lot across the street from the building.  Such a solution would have complied with the order about as much as D.C. officials have complied with the Supreme Court’s oder in Heller.  Yet, Judge Moore undoubtedly would have been assailed for playing fast and loose with “the law” and not taking the judge’s order seriously.  In this case, however, criticism remains muted and virtually no accusations of impropriety have been leveled at D.C. officials. 

Apparently whether violating a judicial order constitutes breaking the law varies based on the subject matter covered in the order.  This goes back to liberal and press sensitivities concerning the rights involved.  Breaches of the supposedly impregnable wall of separation between church and state bother liberals and the mainstream press to no end, while infringements on the right to keep and bear arms are perfectly acceptable and even desirable because they believe the people cannot be trusted with their guns.  People only ”cling to guns or religion” because they are “bitter” about their financial situations, not because such things are important to life and liberty.  Unless we want “a Wild West scene” on our hands, they think we have to keep religion out the public square and keep guns out of the hands of ordinary citizens.  Their rationale is: if judicial orders limiting restrictions on firearms ownership have to be flaunted in order to keep the people safe from themselves, then so be it; but there will surely be anarchy if someone defies a judicial order requiring the removal of references to God in the public square. 

So now we finally know when liberals will applaud defiance of the federal judiciary: when the judiciary confirms the right to keep and bear arms.