NOTE EDIT: In the DC decision, the Supreme Court has moved closer for the first time of incorporating (see archived posts) the Second Amendment and the ruling could now have pressing impacts on gun laws in cities like Chicago. The incorporation of cases by judicial precendents tie the bill of rights to the states. DC v. Heller is not an incorportation case because the case involved laws in DC --which is not a state.
"Because the case before the court arose from the District of Columbia and thus involved only federal law, the court did not resolve the important question of whether the Second Amendment’s protections apply to state and local laws. "
Writing for the narrow majority, Justice Antonin Scalia said that an individual's right to own a gun is at the home of the Second Amendment's principle.
In his dissent, Justice Stephen Breyer focussed on the first part of the amendment -- a well-regulated militia....
"Self-defense, alone, detatched from any militia related objective, is not the amendment's concern,'' Breyer wrote.
The average age of the nine Supreme Court justices is now 68 with John Paul Stevens as the most senior member at 88. Add this with the clear ideological split among the justices and you’re left with a recipe for serious change in the next four years.
The recent majority decisions favoring Habeas Corpus rights for enemy combatants (see below), opposing the death penalty for those who rape children and opposing a hand-gun ban in Washington, D.C. all featured one thing in common…Justice Anthony Kennedy (see archived post).
The Court was perfectly divided between four liberal justices and four conservatives in each of these cases with Justice Kennedy evidently casting the deciding vote for all three.Should Justice Kennedy unexpectedly step down in the next four years, either McCain or Obama would face an amazing opportunity to reshape the ideology of the Court overnight.
We might also expect that if a liberal justice leaves under McCain’s presidency (or vice versa with Obama) Justice Kennedy’s swing vote on the Court could become irrelevant as the Court could be shifted pointedly in a different ideological direction.
But recent political maneuvers by both presidential candidates reveal the complexities of Supreme Court politics.
John McCain says that he would prefer a justice with the ideological perspective of a Justice Scalia if presented with an opportunity to fill a USSC vacancy. His vocal opposition to the extension of rights to enemy combatants and the Courts decision to block the execution of a child rapist seem to back this assertion.
But McCain has made these statements during his attempt to attract the base Republican back into his corner. Are we to believe that he will appoint a conservative justice who would further erode the campaign finance reforms that came to define McCain’s status as an independent maverick?
Likewise, Obama has recently been a little more coy about the subject of the Court. With his vocal support of the extension of rights to enemy combatants we might have assumed that he would want to appoint a liberal justice if given the opportunity. But he has also criticized this week’s decision to limit the death penalty and has tempered his criticism of the Court’s decision to nix D.C.’s hand gun ban. Are we to believe that he might actually appoint a “swinging” justice or is Barack just trying to move to the ideological center as November 4th nears?
Court backs Gitmo inmatesThe U.S. Supreme Court decided last week that enemy combatants held at Guantanamo Bay deserve the right to habeas corpus in order to challenge their detentions in court. In its 5-4 decision, the Court overturned a law passed in 2006 that stripped enemy combatants of the right to ask Federal courts to review the grounds of the detentions.
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or some, the case of Boumediene v. Bush represented a victory of civil liberties over the abuse of governmental power. We will evaluate comparative governmental systems with/without judical branches by the Rule of Law. In writing for the narrow majority, Justice Anthony Kennedy defended our law as the rule all others follow:"The laws and Constitution are desined to survive, and remain in force, in extraordinary times."
Justice Antonin Scalia deeply dissented:
"America is at war with radical Islamists...(the decision) will almost certainly cause more Americans to be killed."
Barack Obama and other critics of the White House policy applauded Justice Kennedy’s majority opinion that the judicial branch must use the right of habeas corpus to preserve the ‘delicate balance of governance’ that is itself the surest safeguard of liberty.”
Obama has elaborated on this by saying that as President he will uphold American ideals by using the Courts more in his fight against terrorism much as the government did to prosecute the perpetrators of the first bombing against the World Trade Center in 1993.
But for others—including John McCain-- the decision by the USSC represents judicial meddling that makes it more difficult to protect Americans from acts of terror. They cite Justice Scalia’s assertion that the granting Habeas rights to enemy combatants “will almost certainly cause more Americans to be killed.”
McCain has said the White House policies have helped prevent another terrorist attack on U.S. soil and that fighting terrorists through legal prosecutions is a naïve tactic.While the rhetoric from both sides is fresh, the basic principles behind these contrasting ideas are not. During the 17th Century British political philosophers—Thomas Hobbes and John Locke—also wrote about the government’s most essential purposes.
Most Americans are familiar with John Locke’s call for government to protect life and liberty, we are also reminded that Thomas Hobbes claimed government’s most essential duty was to ensure the safety of its people.
It’s worth remembering that in the most recent debate about Habeas Corpus, Obama and his supporters are resurrecting the ideals of Locke by calling for a renewal of liberties while McCain and his supporters are asking for us to look at the realities of a tough world and the role of our government to protect its citizens.
On November 4th one side is guaranteed to win a battle in this war of ideas, but the tension between these two sets of beliefs will certainly continue for as long as democratic governments strive to both protect citizens from harm while protecting their liberties.
Who do you side with -- Locke, Kennedy and Obama or Hobbes, Scalia and McCain?
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7 Words, 3 Words....Words to live by in remembrance
Last month, we lost two men influential in coming to an understanding of our political culture. For decades, George Carlin amused and shocked us with his irreverent views of politics, religion and the English language.
With Carlin’s death, we were reminded about his use of bruising satire to critique governmental policies meant to instill morals. Carlin’s most notorious comedy routine mocked the FCC’s edict against the use of profanity on television and radio broadcasts.
5 comments:
I oppose the Court on the first two cases and I support it on the third one. First, the Habeas Corpus thing. As far as I'm concerned, terrorists are POWs, just like any other, and should be treated as such. We're in a "War on Terror" anyway, so we might as well start treating our prisoners as POWs. We're pretty humane in our treatment of POWs as nations go, contrary to what the Abu Ghraib (sic?) scandal would have you believe.
As for the death penalty ruling, raping a child is one of the most ungodly crimes a "human" can commit. Rape is way subhuman as it is, but raping a child is just unthinkable and unforgivable in my book. You need to draw the line somewhere. As far as I'm concerned, pedophiles are not human.
Now for District of Columbia v. Heller. Gun bans only penalize the law-abiding majority for the actions of a few. Criminals aren't going to obey other laws, so why should we think they'll obey gun laws? It just makes us softer targets. Most of the time, you don't even have to shoot to end a confrontation with a criminal. The sound of a 12-gauge shotgun being pumped or the slide on a Colt .45 being racked is warning enough for your average criminal. But what if he's a serial killer? What if he has dozens of arrests on his record, as many do? And one last question: WHY IS VIOLENT CRIME SO HIGH IN CITIES WITH THE MOST RESTRICTIVE GUN LAWS IN AMERICA? Don't tell me guns don't reduce crime. They do.
Under the Habeas Corpus ruling, doesn't it tie our prosecutors to following the Rule of Law? It seemes to me they did that yesterday when U.S. military prosecutors announced they would seek the death penalty a Saudi citizen who was charged Monday with planning Al Qaeda's attack on the USS Cole in October 2000, the Pentagon said.
Abd al-Rahim al-Nashiri, who has been imprisoned since 2006 at Guantánamo Bay, Cuba, is the first person charged in the Cole attack. Seventeen U.S. sailors were killed and dozens wounded when the Navy destroyer was attacked in the Yemeni port of Aden as it refueled.
This case could be complicated because of CIA Director Michael Hayden's testimony to Congress in February that al-Nashiri was one of three people subjected to waterboarding in 2002 and 2003 while being interrogated in secret CIA prisons. The technique, which simulates drowning, has been criticized as torture.
http://www.freep.com/apps/pbcs.dll/article?AID=/20080701/NEWS07/807010382/1009
Second, on the second amendment ruling, do not forget that Supreme Court is political. Scalia speaks on his role a strict constructionalist, but by taking away the right to make laws at a local level, isn't that judicial activism.
Garrett, it is not a cause/effect correlation obiviously. Chicago has a higher rate of gun deaths than Naperville, yet it has more stringent gun laws. That doesn't mean the legislation hasn't worked in Chicago, when murders and deaths by guns have dropped significantly since the tougher legislation.
As I have posted earlier, Justice Kennedy is certainly clearly the swing man in this Court and the outcome of the election will be huge on whether the Court moves more right or stays in the 5-4 mode.
Moving the Court to the right is the one thing true conservatives (not neo-cons) can cheer about George W. Bush's legacy.
In Chicago, you're still disarming ordinary citizens when the criminals have enough weapons to take on a small army. Also, I doubt citizens of Chicago ever owned guns in the quantity Napervilleans do. And while Chicago's gun ban was enacted in 1986, violent crime in the city peaked in 1991, five years after the law was passed, and didn't fall below 1986 levels for a while.
I was deeply saddened by the loss of Tim Russert. When we lost Tim, we lost one of the few remaining truly good journalists. Journalism today, when it comes to professionalism, is but a shadow of its former self. I think Edward R. Murrow was right when he said TV would become "opium for the masses." As for replacing Tim (a tall order!), I think NBC's best bet is David Gregory. I've seen his show, and it's pretty good, and he won't have a show after November 4, so he's probably their best option. Replacing Tim Russert is going to be like replacing Walter Cronkite or Peter Jennings or Tom Brokaw: extremely difficult.
I don't think we can legitimately call the Heller decision an instance of judicial activism. Even a strict constructionalist should be willing to strike down elements of public policy when they expressly violate the letter of law as stated in the constitution. And, it least in Scalia's mind, that is what the D.C. hand gun ban did - it directly violated citizens' 2nd Amendment right to keep and bear arms.
Regardless of the prefaratory non-operative clause about militias, the right to keep and bear arms is specifically given. And that's the reasoning Scalia stated in his opinion. The purpose for which the founders enumerated the right to bear arms does not change what that right actually means; it does not limit the extent of the given freedom. What the constitution basically says is (according to a linguist who Scalia cited) that in order to maintain a well regulated militia, citizens are to be granted the right to keep and bear arms. If you consider that idea to be terribly outdated, that's completely legitimate, but that clause would then need to be entirely stricken from the constitution.
This is really just a case of interpreting the right to bear arms to be either collective or individual, and neither opinion is particularly activist in nature. Both rely directly on exact words and phrases in the constitution.
By the way, what's up with Obama's position on this issue? I think it's a little strange that he seems to support the court now.
I am going to have to side with Mr. Wolak on the cause and effect of gun bans. A gun ban does not necessarily mean that the amount of violence will rise. When Reich III instituted the gun ban, and then had troops patrolling the streets to make sure everyone was safe and trapped in their homes, civilian violence went like way down. And further more, guns will not be a deterrent to a growing desensitised mtv and violent video games generation. (and the SCOTUS does not interpret the Constitution, but rather the intentions of the Constitution, so Blackstone and other writings become very relevant and can be just as important in interpreting the Constitution, as the constitution itself).
Though with this ruling do not loose hope. We can still sue the gun companies until the gun industry is bankrupt.
By the way I agree with Garrett on Habeas Corpus. Habeas Corpus has been a thorn in the side of the government for too long. If the government has a hunch, it has to take it, and then do no follow up until it dies in prison.
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