How was I to know [he] was with the Russians, too?

Justice Stevens’ opinion leaves him on the wrong side of history regarding the importance of the 2nd Amendment.

Part III deals with Justice Stevens’ dissenting opinion in McDonald v. Chicago, Justice Scalia’s responsive concurrence, and a general summary of the issues.  Part I dealt with the plurality decision written by Justice Alito, the dissenting opinion of Justice Breyer, and is relevant to a discussion on the doctrine of incorporation.  Part II dealt with Justice Thomas’ brilliant concurrence, rejecting the doctrine of incorporation for the “privileges and immunities” clause of the 14th Amendment.

You may recall that we addressed the legacy of Justice Stevens’ in a previous article:

Justice Stevens, a member of the Court since 1975, displayed distrust for freedom and voted on the wrong side of many significant constitutional issues.  He willingly eroded individual rights in favor of intrusive government policy.  Stevens’ uneasiness with freedom and individual rights led him to substitute textually sound, constitutional arguments with “intangibles” and fearful hypotheticals involving individuals abusing their rights at the expense of others.

Sure enough, he is up to the same shenanigans in what will be one of his last opinions.  To our benefit, Justice Scalia makes sure that Stevens leaves SCOTUS with a swift kick in the pants. (more…)

Send lawyers, guns and money…the sh%$ has hit the fan!

Seriously!  Justice Thomas opened a whole new chapter in constitutional jurisprudence with his concurring opinion regarding the 14th Amendment’s “privileges and immunities” clause.

Part II deals with Justice Thomas’ concurring opinion in McDonald v. Chicago. Part I dealt with the plurality decision written by Justice Alito, and the dissenting opinion of Justice Breyer, and is relevant to a discussion on the doctrine of incorporation.  Part III will address Justice Scalia’s concurrence directed at Justice Stevens’ dissent.

Let me preface this article by saying Justice Thomas is my favorite Supreme Court Justice.  Progressives often ridicule him for being “silent,” but why should he bother asking attorneys questions when their arguments focus on SCOTUS swing-vote, Justice Kennedy.  His textual approach to interpreting the Constitution makes the most sense.  While originalism and textualism both seek the original meaning of a statute or provision of the Constitution, originalism seeks the intent of the authors, where textualism focuses on the contemporary meaning of the text.  Primary sources on the intent of authors leads to a cogent argument, but primary sources on the meanings of words promotes a sound argument (and if you never learned logic then you have some studying to do; progressive arguments are rife with fallacies). (more…)

I’m the innocent bystander…not anymore!

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.

It is so ordered.

And so, our 2nd Amendment right to firearms settles into its proper place among our pantheon of fundamental rights.  The truth of the matter is that we always retained that right, but the law had been interpreted contrary to the Constitution.

Two arguments were the focus of McDonald v. Chicago: (1) the narrow interpretation of the 14th Amendment’s “privileges and immunities” clause adopted in the Slaughter-House Cases should be rejected; and (2) the 14th Amendment’s “due process” clause incorporates the 2nd Amendment right.  Justice Thomas addressed the first argument in a concurring opinion (arguably the bigger precedent), but we will turn to that topic in Part II.  Justice Scalia skewered Justice Stevens’ dissenting opinion in another concurring opinion, but that will be the topic of Part III.  First let us examine Justice Alito’s plurality opinion concerning the second argument, and the dissent of Justice Breyer. (more…)

“We had to put the Second Amendment over the First Amendment.” (7:21)

Yes, it’s common sense to credit the NRA for its involvement with the McDonald vs Chicago case and its fight for the Second Amendment, which, I think, would have been infringed upon even greater longer ago without the NRA.

However.

I don’t like what I’m seeing with the NRA on this – and their wish to protect the Second Amendment by way of seeking exemption under DISCLOSE is nullified if they traded exemption for silence on the hearing of an anti-gun Supreme Court nominee Elena Kagan as part of of the deal.

You can’t be non-partisan because the Second Amendment, in current society, is not a bipartisan issue.

By silencing yourself, ironically, on an issue for exemption so that you don’t have to be silenced later on is playing with the First Amendment whether you realize it or not.

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At long last the 2nd Amendment has been considered a personal right per the Supreme Court of the United States. In McDonald v the City of Chicago the Supreme Court has ruled in a 5 to 4 decision that Chicago’s gun banning laws are not in keeping with the right to self-defense as enshrined in the U.S. Constitution. After 200 some years we are finally accorded our rights officially. Further, the Court found that the 2nd Amendment was meant to protect the very people that Mayor Richard Daley and his comrades are trying to forcibly disarm: black Americans.

The decision threw out the Seventh Circuit ruling upholding Chicago’s gun ban and ordered the Seventh to revisit its decision. This new ruling does not specifically strike down Chicago’s gun ban but the opinion leaves little room for the Seventh to up hold Mayor Richard Daley’s gun banning efforts.

One of the main questions before the Court was whether or not the 14th Amendment served to shore up the rights in the 2nd. The Court found that it did, indeed. In fact, it is interesting to note that the ancestors of the very people that the 14th Amendment was meant to specifically protect — newly freed slaves, called freemen — are today those that Mayor Richard Daley and others like him want to disarm. Daley and his ilk want to disempower blacks and other minorities and tie them plantation-like to their government authority.

In the majority opinion in the McDonald decision specifically notes the history of the 14th Amendment and its preceding basis for being the protector of the freemen.

After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that “no freed- man, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife.” (pg 23)

There was but one reason why freedmen were prohibited from having firearms and that was so that they would be unable to defend themselves against terrorists like the Klan or be able to enjoy the fruits of citizenship. Scalia notes that the Freedman’s Bureau began to add rules to its repertoire to specifically affirm the newly freed black’s right to self defense (pg 27).

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A third instance of Elena Kagan opposing Americans’ Second Amendment right to own a gun became public Thursday, ensuring gun rights will be a major issue in her Supreme Court confirmation hearings. It also confirms that President Obama’s gun-control agenda is to create a Supreme Court that will “reinterpret” the Second Amendment until that amendment means nothing at all.

This year, no case on the Supreme Court docket is more important than McDonald v. Chicago, where the Court is deciding whether the Second Amendment right to keep and bear arms is only a right you have against the federal government, or instead if the Second Amendment (like most of the Bill of Rights) also secures a right you can assert against state and local governments. At issue is whether Chicago’s law banning guns—even in your own home—is constitutional.

When the Supreme Court considered its last Second Amendment case in 2008, District of Columbia v. Heller, then-Solicitor General Paul Clement filed a brief in the case, and then requested and received time to argue the federal government’s position on the meaning of the Second Amendment.

When the McDonald case was argued before the Court on March 2, current Solicitor General Kagan argued… Nothing. Not only did she not ask for time during oral argument, she didn’t even file a brief (which the solicitor general routinely does in important constitutional cases—and the McDonald case is tremendously important).

If someone asserts that the solicitor general shouldn’t file a brief because it’s a state issue as to whether the Second Amendment is “incorporated” to the states through the Fourteenth Amendment (which is the issue in McDonald) the record speaks to the contrary. The last time the Supreme Court “incorporated” a right from the Bill of Rights to the states, in the 1969 case Benton v. Maryland, the solicitor general filed a brief, and then (just like Heller in 2008) was given time in oral argument time to express the government’s views in front of the Court.

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The Constitution and the Second Amendment are in the spotlight this week on two fronts.  First is that oral arguments are being held in the McDonald v Chicago case to possibly apply the holding in Heller to the states.

In addition, Senators are beginning their evaluation of the judicial nomination of Berkeley professor Goodwin Liu to the Ninth Circuit Court of Appeals in a vote that will tell a great deal about Senator Reid’s adherence to Constitutional principles such as those specified in the Second Amendment.

Senator Reid has a terrible record on judicial nominees to the U.S. Supreme Court.  In DC v Heller, there were four dissenters from the holding that the right to bear arms is an individual right.  Harry Reid had a chance to vote on three and he voted for each one – Breyer, Souter and Ginsburg.  Harry Reid has a chance to vote on four of the majority justices, and he voted against three of them – Thomas, Alito and Roberts.  If Harry Reid had been successful in defeating any of these three, Heller would have been in jeopardy.  That’s six out of seven bad votes on the Supreme Court.

Four of those bad votes were cast in his very first term, when my primary opponent Sue Lowden was his loyal contributor.

There will be hearings on professor Liu, but I am specifically interested in a particular book he co-authored on jurisprudence entitled “Keeping Faith with the Constitution.”

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Today, the U.S. Supreme Court will hear McDonald v. Chicago, in which the Court will decide whether the City of Chicago can disarm its citizens by forbidding them from owning handguns, or whether gun ownership is a “privilege” of citizenship protected by the U.S. Constitution.  In doing so, it will reconsider whether courts should play a more robust role in the protection of the basic liberties of the people.

Such a statement may seem counterintuitive.  Of course courts protect rights; it’s their job to interpret the Constitution to do just that.

But the practice of constitutional law has unfortunately long since been about more than the simple application of the plain text.  That’s because the Constitution—the point of which is to limit government power—is a rather inconvenient roadblock when government wants to do something without restraints.  Courts, in many cases, have abandoned their responsibility to apply the clear commands of the Constitution and have become extremely deferential to legislatures, especially with regard to progressive policy goals the judges themselves often share.  It seems crazy that we would let legislatures determine when laws they themselves create violate the Constitution.  But that is exactly what has happened.  We’ve let the fox guard the henhouse.

Some call this judicial “restraint,” but increasingly, a more accurate term would be judicial abdication.  And judicial abdication is every bit as dangerous as judicial activism, and arguably even more so because it allows politicians to disregard whatever constitutional limits they find inconvenient, which leads to unchecked expansion of government power.

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Last year’s landmark Supreme Court decision in District of Columbia v. Heller definitively settled the fact that the Second Amendment secures an individual right—not a collective one—to keep and bear arms. Yet that ruling applied only to the federal government (which oversees Washington, D.C.). Does the Second Amendment apply against state and local governments as well?

Through a series of legal decisions handed down over the past century, the Supreme Court has gradually held that most of the protections in the Bill of Rights apply to the states via the Fourteenth Amendment, which declares, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” The Second Amendment, however, has been glaringly absent from this process, leaving state and local governments free to systematically violate gun rights.

Until now.

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