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.
F
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.
