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…)

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.

(more…)

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.

(more…)