Guns, Rights, Politics and the Constitution

It scares the heck out of me that it took a difference of one Supreme Court justice to decide that, despite a multitude of sources showing the intent of our founding fathers, Americans have an individual right to keep and bear arms for the purpose of self defense and for guarding against tyrannical government.

Our Constitution was written for a reason. Every idea and sentiment in that document, along with our Bill of Rights, were included to prevent the fledgling United States of America from descending into the overbearing and tyrannical governments from which our founders fled. The Fourth Amendment was written to prevent the warrantless search of colonists’ homes for tax stamps; the Sixth Amendment was included to prevent accused individuals from testifying against themselves and facing a noose, or keeping quiet and facing damnation; the Tenth Amendment was there to ensure that the federal government wasn’t to take for itself power supposed to be in the hands of the several states and the many people. And so on and so forth.

These few articles, I’ve noticed over the past couple of days. All are a pretty good example of “big picture” perspective, all deal with recent SCOTUS decisions, and all seem to relate to our current political situation as well. Please read them–I’ve included them in their entirety, rather than just a link, for a reason–and consider what is being discussed by the authors.

– Jeff

News Flash: The Constitution Means What it Says
by Randy Barnett, The Wall Street Journal

Justice Antonin Scalia’s majority opinion in yesterday’s Supreme Court decision in District of Columbia v. Heller is historic in its implications and exemplary in its reasoning.

A federal ban on an entire class of guns in ordinary use for self-defense – such as the handgun ban adopted by the District of Columbia – is now off the table. Every gun controller’s fondest desire has become a constitutional pipe dream.

Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to “incorporate” the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.

My prediction: This ruling will eventually be extended to the states.

Second, how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential “rationality” review advocated by Justice Stephen Breyer.

Most likely, gun laws will receive the same sort of judicial scrutiny that is now used to evaluate “time, place and manner” regulations of speech and assembly. Such regulations of First Amendment freedoms are today upheld if they are narrowly tailored to achieve a truly important government purpose, but not if they are really a pretext for undermining protected liberties.

My prediction? Because gun-rights groups like the NRA have so successfully prevented enactment of unreasonable gun laws, most existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed – whose aim is to impose an “undue burden” by raising the cost of gun production, ownership and sale – would likely be found unconstitutional. All gun regulations – for example, safe storage laws and licensing – will have to be shown to be consistent with an effective right of self-defense by law-abiding citizens.

Justice Scalia’s opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the “operative clause” identifying “the right to keep and bear arms” to the “prefatory clause” about the importance of a “well-regulated militia.” Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years – evidence that was presented to the Court in numerous “friends of the court” briefs.

Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent” – the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent” – or the original principles “underlying” the text – to negate its original public meaning.

Of course, the originalism of both Justices Scalia’s and Stevens’s opinions are in stark contrast with Justice Breyer’s dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or “precedents” that are inconsistent with the original public meaning of the text. This shows why elections matter – especially presidential elections – and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge. (Disclosure: I joined a brief by Academics for the Second Amendment supporting the individual rights interpretation; one of my articles was cited by Justice Scalia and another by Justice Breyer in his dissent.)

Due to the political orthodoxy among most constitutional law professors, some of the most important and earliest of this scholarship was produced by nonacademics like Don Kates, Stephen Halbrook, David Kopel, Clayton Cramer and others. Believe it or not, Heller was a case of nearly first impression, uninhibited by any prior decisions misinterpreting the Second Amendment.

Last but not least, tribute must be paid to the plaintiffs – Shelly Parker, Dick Anthony Heller, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon – who went where the National Rifle Association feared to tread, and to their lawyers Robert Levy, Clark Neily, and lead counsel Alan Gura. I was privileged to witness Mr. Gura argue the case – his first Supreme Court argument ever – and he was outstanding. Heller provides yet another reminder of the crucial role that private lawyers play in the preservation of our liberties.

Don’t Troops Have Rights, Too?
by Jonathan Gurwitz, San Antonio Express-News

If you’re an al-Qaida terrorist who has participated in operations that have killed thousands of Americans, if you’ve been captured on the battlefield in Afghanistan or Iraq by members of the U.S. military and you’re lucky enough to be detained at Guantanamo Bay, you’re entitled to challenge the legality of your detention in a federal court. So say five justices of the U.S. Supreme Court.

If you’re a member of the U.S. military fighting in Afghanistan or Iraq, risking your life on a daily basis to bring to justice — or send to paradise — the jihadists and you’re accused of committing war crimes, the court of public opinion can issue an immediate verdict: Guilty.

The bare majority decision of the high court opens a legal path that could conceivably lead to enemy combatants taken prisoner in a theater of war receiving the same legal rights as American citizens, including the presumption of innocence.

If you’re an American citizen who has heeded the call to duty, there’s no such presumption.

The big legal news this month is that Lakhdar Boumediene and fellow detainees at Gitmo petitioned for and won habeas corpus rights. The media reported the 5-4 Boumediene decision as a “stinging rebuke to President Bush’s anti-terror policies,” as the Associated Press put it.

You had to dig deeper into the news to read or hear about Jeffrey Chessani. Never heard his name? Chessani is a lieutenant colonel in the Marines. He was the commanding officer of an infantry battalion, eight members of which were accused of participating in and covering up war crimes in 2005 in the Iraqi city of Haditha. Surely that rings a bell. Along with accusations of officially sanctioned torture at Abu Ghraib and Guantanamo Bay and the routine desecration of Korans by American infidels, the massacre of civilians at Haditha — including women and children — is a powerful tale in the anti-Bush, anti-military narrative.

The report that Marines went on a killing spree and that command staff tried to cover it up fit perfectly with that narrative.

Before any of the Marines charged with crimes at Haditha faced a court martial, too many people were prepared to pass judgment. Most infamously, Rep. John Murtha, a Democrat who voted for the use of military force in Iraq, declared, “Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood.”

Last week, a military judge dismissed charges against Lt. Col. Chessani. He is now the seventh of the Haditha eight to have had his case dismissed or to be found not guilty. The smear against Chessani and the other Marines, like the 5-4 Boumediene decision, was on the front page. Their 7-0 record of exonerations, to say the least, is not.

The same folks who accused Gen. David Petraeus — “General Betray Us” — of cooking the books on Iraq prior to his testimony before Congress will dismiss the judgments against the Marines as the inevitable outcome of a rotten military and rotten military justice. That’s also part of the narrative.

The irony is that the same adversarial system of justice debated the rights of Guantanamo Bay detainees and propelled their case to the highest court in the land.

The sharp split on the Supreme Court regarding detainee rights reflects the murkiness of the battlefield in the war on terror. There’s no easy way to distinguish terrorist combatants from innocent civilians. In the opinion of five of the justices, it is better to err in favor of the innocent, better to provide the Gitmo detainees with more procedural ways to prove their innocence.

A squad of Marines carried out a mission at Haditha, a front on that murky battlefield. Other than those who were there, no one really knows what happened, not even Rep. Murtha. But thus far, there’s no evidence to support the accusation that they’re cold-blooded killers.

Americans can respectfully disagree about the wisdom of indefinitely detaining enemy combatants — or granting them habeas corpus rights. At the very least, they can extend the presumption of innocence to their fellow citizens who have chosen to defend the nation.

McCain’s Day of Repudiation
by George Will, The Washington Post

Two of yesterday’s Supreme Court rulings — both decided 5 to 4, and with the same alignment of justices — concerned the Constitution’s first two amendments. One ruling benefits Barack Obama by not reviving the dormant debate about gun control. The other embarrasses John McCain by underscoring discordance between his deeds and his promises.

The District of Columbia’s gun control law essentially banned ownership of guns not kept at businesses and not disassembled or disabled by trigger locks, even guns for personal protection in the home. The issue in the case was: Does the Second Amendment “right of the people to keep and bear arms” guarantee an individual right? Or does the amendment’s prefatory clause — “A well-regulated militia, being necessary to the security of a free state” — mean that the amendment guarantees only the right of a collectivity (“the people,” embodied in militias) to “bear” arms in military contexts?

In an opinion written by Justice Antonin Scalia, who believes that construing the Constitution should begin, and often end, with analysis of what the text meant to its authors, the court affirmed the individual right. Scalia cited the ancient British right — deemed a pre-existing, inherent, natural right, not one created by government — of individuals to own arms as protection against tyrannical government and life’s other hazards.

Scalia also cited American state constitutional protections of the right to arms, protections written contemporaneously with the drafting of the Second Amendment. Scalia’s opinion, joined by John Roberts, Sam Alito, Clarence Thomas and Anthony Kennedy, radiates an understanding that the right to arms is the right of each individual to protect his rights to “life, liberty and the pursuit of happiness.” Hence the Second Amendment is integral to the Bill of Rights and is, for weighty reasons, second only to the First.

Obama benefits from this decision. Although he formerly supported groups promoting a collectivist interpretation — nullification, really — of the Second Amendment, as a presidential candidate he has prudently endorsed the “individual right” interpretation. Had the court held otherwise, emboldened gun-control enthusiasts would have thrust this issue, with its myriad cultural overtones, into the campaign, forcing Obama either to irritate his liberal base or alienate many socially conservative Democratic men.

The McCain-Feingold law abridging freedom of political speech — it restricts the quantity, timing and content of such speech — included a provision, the Millionaires’ Amendment, that mocked the law’s veneer of disinterested moralizing about “corruption.” The provision unmasked the law’s constitutional recklessness and its primary purpose, which is the protection of incumbents.

The amendment, written to punish wealthy, self-financing candidates, said that when such a candidate exceeds a particular spending threshold, his opponent can receive triple the per-election limit of $2,300 from each donor — the limit above which the threat of corruption supposedly occurs. And the provision conferred other substantial benefits on opponents of self-financing candidates, even though such candidates cannot be corrupted by their own money, which the court has said they have a constitutional right to spend.

Declaring the Millionaires’ Amendment unconstitutional, the court, in an opinion written by Alito, reaffirmed two propositions. First, because money is indispensable for the dissemination of political speech, regulating campaign contributions and expenditures is problematic and justified only by government’s interest in combating “corruption” or the “appearance” thereof. Second, government may not regulate fundraising and spending in order to fine-tune electoral competition by equalizing candidates’ financial resources.

The court said it has never upheld the constitutionality of a law that imposes different financing restraints on candidates competing against each other. And the Millionaires’ Amendment impermissibly burdened a candidate’s First Amendment right to spend his own money for campaign speech.

This ruling invites challenges to various state laws, such as Arizona’s and Maine’s, that penalize private funding of political speech. Those laws increase public funds for candidates taking such funds when their opponents spend certain amounts of their own money or receive voluntary private contributions that cumulatively exceed certain ceilings. Such laws, like McCain-Feingold, rest on the fiction that political money can be regulated without regulating political speech.

The more McCain talks — about wicked “speculators,” about how he reveres the Arctic National Wildlife Refuge as much as the Grand Canyon, about adjusting the planet’s thermostat, etc. — the more conservatives cling to judicial nominees as a reason for supporting him. But now another portion of his signature legislation has been repudiated by the court as an affront to the First Amendment, and again Roberts and Alito have joined the repudiation. Yet McCain promises to nominate jurists like them. Is that believable?


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