Interview with CFIF’s Timothy Lee on the U.S. Supreme Court’s decision in McDonald v. Chicago, as well as the Obama Administration’s cozy relationship with BP.
Listen to the interview here.
Any reader familiar with Supreme Court Justice Antonin Scalia knows his professional reputation is etched with the cuts of (seemingly) a thousand harshly worded dissents. In fact, they are so clear and compelling there’s a book called Scalia Dissents that catalogues some of his most pointed opinions.
Justice Clarence Thomas takes a different approach. His most intriguing opinions usually come in the form of concurrences, agreeing with the conservative majority’s result, but not its process. The most recent example was his unchallenged concurrence to the Chicago gun rights case (McDonald v. City of Chicago). In it, the Court’s clearest thinking – and best writing – justice observed that “due process” of the 14th Amendment guarantees nothing more than the process due a person before taking his life, liberty or property.
In other words, the government can deprive a person of any one or all three, it just needs to establish a scheme for doing so.
Thus, if it’s true that there are certain fundamental rights – like the 2nd Amendment’s guarantee to carry a weapon for self-defense – that cannot be infringed by states and localities, conservatives and liberals will have to look somewhere other than the due process clause to protect them. Justice Thomas found the mechanism in the 14 Amendment’s privileges or immunities clause. Not only does it fit with the intent of the amendment’s framers, it boasts the honor of not confusing the process of depriving rights with the substance of those rights.
All lawyers should strive to be so helpful.
Never underestimate the speed and focus possible when the politicos in charge of government set their minds to getting something done. Less than four days after the United States Supreme Court said that the U.S. Constitution’s 2nd Amendment applied to states and municipalities like Chicago, the Second City’s aldermen rose to the challenge.
Unfortunately, they responded by deliberately passing a law to discriminate against gun owners to the maximum extent the Constitution might allow. (Lost amid most of the coverage this week on the result in McDonald v. City of Chicago is that Justice Alito’s plurality opinion announces only that the 2nd Amendment right to bear arms applies to Chicago. It leaves to lower courts the careful work of figuring out which gun control laws are in fact unconstitutional.)
Let’s try a mind experiment. Suppose a controversial Supreme Court opinion came down applying a universal right guaranteed in the Constitution against states and municipalities that had to do with, oh, let’s say…racial discrimination. If the losing city in the decision responded in less than four days with an ordinance that deliberately tried to see how far it could still discriminate and pass constitutional muster, would that city council be lauded for its activism?
Maybe there’s a North Coast bias.
These days, it seems like war is only the extension of politics by other means; except that even the means are political.
Last week, President Barack Obama minimized conservative harrumphing after firing General Stanley McChrystal by appointing General David Petraeus as his replacement. Though politically savvy, CFIF Senior Fellow Troy Senik correctly notes that reassigning Petraeus may be a pyrrhic victory since most of the conditions for successfully implementing his counterinsurgency strategy are missing. When he gets in country, Petraeus’ biggest enemy won’t be the Taliban or a corrupt Karzai government; it’ll be trying to deliver a victory conservatives can stomach on a timetable and troop count demanded by liberals.
Heading back to Washington the war on rationality gets even rougher. This morning four out of five Supreme Court right-of-center justices voted to extend the Second Amendment’s guarantee of an individual’s right to own a gun to the several states. The result produces two effects. First, complete government bans on gun possession are unconstitutional. Second, eight of the current justices are now on record supporting a liberal theory of constitutional jurisprudence: Substantive Due Process. Only Justice Clarence Thomas opted for a textually supported, historically rooted commonsense reading of the Fourteenth Amendment. Since no one tried to dispute his reasoning, it can be assumed that everyone accepted his conclusion – they just didn’t like his premises.
The only element these storylines have in common is one man bearing quiet witness to the power of clear thinking. While the political class may be unable to sustain a coherent framework for addressing pressing issues, it is a comfort knowing that at least some of those they appoint are capable – and willing – to tackle important matters with precision and daring.
The media often paint non-liberal legal thinkers with broad brush strokes, a failure of reporting that hides some very important distinctions between libertarians and conservatives. That’s why Reason’s Damon Root does a public service in explaining the fault lines in right-of-center legal thinking that are emerging over the most recent gun rights case, McDonald vs. City of Chicago. The Supreme Court’s decision could land any day, so before it does, make sure to check out Root’s cogent description of the politics behind the process of winning more freedom for individuals through litigation.
It’s definitely worth the read.
In the landmark 2008 decision in District of Columbia v. Heller, the United States Supreme Court at long last affirmed that the Second Amendment protects an individual right of citizens to keep and bear arms. Unfortunately, the decision technically only applied to federal jurisdictions such as Washington, D.C., and set aside the question of whether the 50 states were similarly prohibited from infringing on that critical right.
Through an unjustified quirk of constitutional jurisprudence, courts over the past 150 years have picked and chosen which provisions of the Bill of Rights they consider “fundamental,” and therefore applied against state infringement. Most provisions have received such recognition, and it obviously defies logic to contend that the Second Amendment, which was among the most important in the minds of the Founding Fathers, is somehow “not fundamental.” Despite this, the left has creatively and dishonestly made that very assertion.
Today, however, the Court announced that it will hear the case of McDonald v. City of Chicago. At issue in that case is a Chicago law broadly prohibiting handguns, taxing firearms generally, and various other infringements on the right to keep and bear arms. Accordingly, the Supreme Court now has the opportunity to do the right thing and protect Americans’ Second Amendment rights against the ever-growing menace of government infringement.
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