Justice Janice Rogers Brown


Justice Janice Rogers Brown

by Larry Pratt

Oh, how the liberals love to hate this jurist.

Janice Rogers Brown has done the unthinkable. She had the audacity to dishonor the memory of the socialism of Franklin Delano Roosevelt.

During FDR’s rule, Brown says, “the Constitution itself was transmuted into a significantly different document…. [The year] 1937… marks the triumph of our own socialist revolution…. Its effect was not simply to repudiate, both philosophically and in legal doctrine, the framers’ conception of humanity, but to cut away the very ground on which the Constitution rests…. In the New Deal/Great Society era, a rule that was the polar opposite of the classical era of American law reigned.”

Gun owners have a lot to celebrate with Brown’s elevation from the California State Supreme Court to the DC Court of Appeals (the court that hears many federal government cases).

On the California court, Brown signaled an unusually clear understanding of the true meaning of the Bill of Rights and the Second Amendment. Yes, she does adhere to the misunderstanding — shared by almost all judges — that the lower courts are bound by the unconstitutional decisions of the Supreme Court. Nevertheless, she is all the same ready to criticize rulings of the Supremes.

In passing, it can be noted that Judge Roy Moore of Alabama is the most prominent judge in the country who holds the Constitution higher than a rebellious ruling of any federal court. There never would have been an American War for Independence against the rebel King George III if today’s reigning views of judicial supremacy had held sway in 1776.

But let’s get back to the high points of Justice Brown’s record.

In a California case involving a gun show ban in Los Angeles County, Brown wrote a dissent upholding the right of the Great Western Shows to use a L.A. County facility. Brown pointed out that the County was making a law (banning gun shows) that was prohibited by the state’s preemption law. Furthermore, the County could not hide behind the fairgrounds management as if the County had no authority over the facility. Brown used language from an amicus curiae brief submitted by Gun Owners of California, a sister organization of Gun Owners of America.

Brown’s most extensive Second Amendment scholarship appears in the case involving the California ban on semi-automatic firearms (Kassler v. Lockyer).

In a decision upholding the California ban on certain semi-autos (the so-called “semi-autos”) — even while Brown (mistakenly) felt obliged to uphold the U.S. Supreme Court rather than the Constitution — it became quite clear that she at least understood the Constitution. She criticized the Court’s uneven and arbitrary standards regarding rights as being “highly suspect, incoherent, and constitutionally invalid.” And she faulted the Court for picking and choosing which rights they liked.

In the same decision she observes that: “Curiously, in the current dialectic, the right to keep and bear arms — a right expressly guaranteed by the Bill of Rights — is deemed less fundamental than implicit protections the court purports to find in the penumbras of other express provisions…. [s]urely the right to preserve one’s life is at least as fundamental as the right to preserve one’s privacy.”

Not bad. A drive-by shooting of the Court’s invention of a right to abortion while at the same time upholding the right to keep and bear arms.

Brown cited Second Amendment attorney Stephen Halbrook’s scholarship showing the racist roots of gun control in the U.S. She also favorably quoted Halbrook regarding the post-Civil War legislation designed to protect the individual right to keep and bear arms, particularly of blacks.

Judge Brown referred to the socialist Amitai Etzioni, a prominent academic pacifist, and blasted his view that a gun ban would make society safer. “I suspect the freedmen of the Reconstruction Era would vehemently disagree. So would the Armenians facing the Ottoman Turks in 1915, the embattled Jews of the Warsaw Ghetto in 1943, and the victims of Pol Pot’s killing fields.”

The liberals are opposed to Brown because of her views, and because she might end up on the Supreme Court. We can only hope.