The Judge Who’s a First-Class Payne in the Tuchis #🟦

May 14, 2023 / Kurt F. Stone

(Many thanks to Alan Wald, one of my oldest, wittiest and easily, most literate friends, for bringing Judge Robert E. Payne and the case he presided over, to my attention.

First the facts, then the commentary:

THE FACTS: This past Wednesday, May 10, 2023, Judge Robert E. Payne of the Federal District Court in Richmond, Virginia (the home of my father Henry’s alma mater), handed down a 71-page ruling striking down federal laws blocking handgun sales to buyers over the age 18 and under 21. In the case, John Corey Fraser et al v Bureau of Alcohol, Tobacco, Firearms and Explosives et al, Judge Payne, who was appointed to the federal bench by President George H.W. Bush in 1991, ruled that statutes and regulations put in place over the past several decades to enforce age requirements on sales of handguns, like the semiautomatic Glock-style pistol, by federally licensed weapons dealers were “not consistent with our nation’s history and tradition” and therefore could not stand. A citizen’s Second Amendment rights do not “vest at age 21,” he added.

In his ruling, Judge Payne repeatedly cited the majority opinion in the landmark case New York State Rifle and Pistol Association v. Bruen which, employing a broad interpretation of the Second Amendment, struck down a New York State law that put tight limits on carrying guns outside the home. At the time when this ruling was handed down (June 2022), legal commentators, including the New York Times’ Adam Liptak noted that “The decision is expected to spur a wave of lawsuits seeking to loosen existing state and federal restrictions and will force five states — California, Hawaii, Maryland, Massachusetts and New Jersey, home to a quarter of all Americans — to rewrite their laws.”

The Justice Department is expected to appeal Judge Payne’s ruling in Virginia, which, should it stand, would have a significant, if limited, impact on firearms purchases. The decision, which would not affect state age limits, will take effect when the judge issues his final order, which is expected in the next few weeks.

THE COMMENTARY: In my opinion Judge Payne’s ruling ranks right up there with Mr. Chief Justice Roger B. Taney’s 1857 Dred Scott decision (which a future Chief Justice, Chas. Evans Hughes, would characterize as the court’s "great self-inflicted wound”); Justice Anthony Kennedy’s majority decision in the Citizens United case (which essentially opened the legal floodgates to all the corporate billions being contributed to political campaigns); and Justice Samuel Alito’s delivery of the Dobbs v Jackson decision (which overturned Roe v Wade) as one of the very worst, most short-sighted and asinine judicial renderings in all American history. Reading through Judge Payne’s decision, the one thing that sticks with you is his justification for ruling against the plaintiffs . . . about their position “not [being] consistent with our nation’s history and tradition.” In other words, what Payne was basing his decision on was a stagnant, motionless Constitution; one virtually immune from - and uncaring of - any historic change or growth made manifest through the reality of time and tide. His rendering of the 2nd Amendment (“The right of the people to keep and bear arms shall not be infringed”) heeds only its first fourteen words, and virtually nothing of what follows (i.e. “. . . a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”)

Taking a single phrase from the U.S. Constitution without regards to a couple of centuries of court cases and decisions (“commentaries”) is akin to reading the Old Testament (also known as “The Hebrew Bible”) without engaging in the study of the so-called “Oral tradition.” Were it not for this oral tradition - debates, arguments and the parsing of both history and language of the Bible, we’d be stuck with such literal renderings as the so-called “Stubborn and rebellious child” (בֵּ֚ן סוֹרֵ֣ר וּמוֹרֶ֔ה) law (Deut. 21:18-21) which condemns an unruly child ”(one who will hearken not to the voice of its mother or father”) to death by stoning at the hands of the community elders. Had not this section of the Bible been subjected to centuries of debate and commentary, all those youngsters who, at one time or another, mouthed off to their parents, would have been sentenced to death. Instead, centuries of sages turned the literal words into a frightful warning . . . thus abnegating a heartless punishment.

Imagine, if you will, if Judge Payne’s obiter dictum about “not [being] consistent with our nation’s history and tradition” were to be taken literally in a wide range of legal proceedings; to what might it lead?

(And here we return to my friend Alan Wald’s trenchant thoughts for which, once again, great thanks are proffered:

Next, will it be the re-imposition of slavery because ending slavery is not consistent with our nation’s history and tradition”

Or re-starting the Holocaust, because it was part of the German nation’s history and tradition

Or the paddling of elementary school kids by teachers in the cloak room:, for this too is part of our nation’s history and tradition.

How about giving smallpox and VD to the First Peoples of America by the first white settlers in America which is part of many nation’s history and tradition?

Or taking away the right to vote from African Americans and women because this right is largely inconsistent with our nation’s history and tradition?

Feel free to add your own “How’s ‘bout’ to this list.

There is an old rabbinic tradition of never ending a sermon (a drosh) without a dash of uplifting compassion (n’chempta). Not wishing to ignore the sage advise of my early masters, I shall heed their admonition:

This past week, the U.S. Supreme Court, in the case Santos-Zacaria AKA Santos-Sacarias v. Garland, unanimously passed a decision that makes history not just for its impact on the law — but for its language about transgender people and non-citizens living in the United States.

Every judge — including the most conservative on the court — agreed with the court's ruling, and traditionally right-leaning justices co-signed the official opinion of the court, which uses proper she/her pronouns to describe a transgender woman who fled Guatemala after being assaulted and persecuted on the basis of her gender identity and sexual orientation.

The opinion also referred to the petitioner as a non-citizen, rather than an "illegal alien" (a dehumanizing term that has been in conservative opinions in the past).

Estrella Santos-Zacaria, the transgender refugee at the center of the case, had appealed a decision to deport her after she twice came to the U.S. seeking safety and a better life.

In a unanimous decision Thursday, the Supreme Court sided with Santos-Zacaria, allowing her another chance to fight the deportation decision and potentially remain in the U.S. if that bid is successful.

The decision is largely technical, but the language used in the opinion is historic, particularly considering the recent wave of anti-LGBTQ measures across the country.

For the moment, this news fulfills the need for ending with hope and compassion, gives us a bit of emotional respite from the inanity of the Federal Court’s gigantic Payne in the tuchus.

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