Saturday, June 28, 2008

Antonin, Get Your Gun

The Supreme Court's recent decision in District of Columbia v. Heller, No. 07–290 (6/26/2008), has garnered a lot of attention as a confirmation of the 2nd Amendment's "right to keep and bear arms." But there is both less to the opinion, and more to the opinion, than first meets the eye.

The jurisprudential weaknesses of the majority opinion authored by Justice Antonin Scalia are beyond the scope of this blog posting (I may elaborate later), but the actual holding of the case, and the true effect of the opinion, need to be explained more fully than has been covered in the popular press to date.

Although the Supreme Court held that the Second Amendment's "right of the People to keep and bear arms" was an individual right and not a right of the states to maintain militias, and held that a ban on handguns violated the Second Amendment, the holding of the case was still relatively narrow because the law in question was an ordinance of the District of Columbia and not a statute enacted by one of the states.

The District of Columbia is a peculiar place, constitutionally speaking, because it is governed by Congress in accordance with Article I, Section 8, clause 17, of the Constitution, and is not a "state" (or a part of any state) within the meaning of the Constitution. That peculiarity is important because, technically speaking, the Bill of Rights (the first ten amendments to the Constitution, including the 2nd Amendment) are binding only on the federal government and not the states. The fundamental freedoms guaranteed by the Bill of Rights apply to the states only through the 14th Amendment's guarantee of due process of law. So (for example), a state law that violates the right to freedom speech is not, technically speaking a violation of the 1st Amendment, which only applies to the federal government, but is a violation of the 14th Amendment.

In the Heller case, Scalia's opinion specifically recognized that the question of whether 2nd Amendment rights were "incorporated" into the 14th Amendment (and so applicable to the states) was not before the court, and that the court had previously ruled that the 2nd Amendment did not apply to the states. This is explicit in footnote 23, discussing a statement in United States v. Cruikshank, 92 U. S. 542, 553 (1876) that stated that the 2nd Amendment only limited the power of Congress, and was not incorporated into the 14th Amendment:
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
Slip Opinion, page 48, note 23 (emphasis added).

This footnote says (and suggests) several things.

First, the question of whether the 2nd Amendment applies to state legislation was not before the court in Heller and was not decided, and so remains an open question.

Second, the Supreme has in past decisions (Presser and Miller) affirmed that the 2nd Amendment applies only the federal government.

Third, that Cruikshank (and perhaps later decisions) did not interpret the 14th Amendment in the same way that later decisions interpreted that amendment.

The third point, combined with Scalia's citations to statements made in Congress during the debates over the 14th Amendment that the 2nd Amendment represented a "fundamental right" enjoyed by American citizens (see pages 41-47), are clear signals that Scalia believes the 2nd Amendment does apply to the states, and is just waiting for right case in which to make that decision.

Sunday, June 15, 2008

Boumediene "Worst Decision"?

Last Thursday, the Supreme Court announced its decision in Boumediene v. Bush, which allows detainees at the U.S. Naval Air Station at Guantanamo Bay to have access to federal courts in order to challenge the legality of their detentions. On Friday morning, speaking at a "town-hall style" meeting in New Jersey, presumptive Republican presidential nominee John McCain referred to the decision as “one of the worst decisions in the history of this country.” That is ridiculous hyperbole even from a conservative Republican point of view.

Let's put the decision in perspective:
  • The decision affects only about 280 people held at Guantanamo Bay. The majority opinion clearly states that the military base at Guantanamo Bay is unique because it is not, technically speaking, part of the United States, and yet it is under the complete control of the United States. The decision will never be applied to detainees held in prisons in Iraq or Afghanistan.
  • The decision does not set anyone free. The decision only allows them access to federal courts for purposes of challenging the legality of their detentions. If the Bush administration can demonstrate to the courts that the detentions are legal under U.S. law or international law, then the detentions will continue.
From the point of view of a conservative, the Boumediene decision has got to be small potatoes compared to decisions like Roe v. Wade, which has lead to the deaths of innocent fetuses by abortion, or Miranda v. Arizona, which required that warnings be given before police can interrogate suspects and which has resulted in thousands of admittedly guilty criminals going free, or even Lawrence v. Kansas, which gave homosexuality some constitutional protection.

So why the hyperbole? In the grand scheme of things, why should a conservative care whether or not a handful of detainees have been granted access to federal courts?

Two possible reasons:
  1. It's better to be on offense than defense. McCain is going to have a difficult time defending the record of the Bush administration (and McCain's voting record) on domestic and foreign policy issues, so it's better to be on the attack against the decisions of the Supreme Court than trying to defend the decisions of the Bush administration and the Republican party over the last 7 years.
  2. The fear game. What has won elections for Republicans over the last several decades is fear. Fear of desegregated schools (i.e., blacks and liberal judges), fear of crime (i.e, blacks and liberal judges), fear of affirmative action (i.e., blacks and liberal judges), fear of loss of jobs (i.e., Hispanics and blacks and liberal judges), fear of gay marriage (i.e., fear of homosexuals and liberal judges), and fear of terrorism (i.e., fear of Arabs and blacks). Attacking the Supreme Court as "soft on terrorism" effectively combines the most important elements of almost every traditional conservative fear, because it combines traditional white xenophobia with traditional conservative antipathy to the court system.
Look for more of "the fear game" as the McCain campaign continues.

Sunday, June 01, 2008

Florida, Michigan, and Zimbabwe

Hillary Clinton's comments comparing the primaries in Florida and Michigan with the elections in Zimbabwe were half right. She was right that there is something wrong with changing the rules of an election when you don't like the result, but she was wrong to think that she is different from Robert Mugabe.

People went to the polls in Zimbabwe thinking that their votes would count. But then Mugabe saw that the results weren't what he wanted, so he changed the rules and the results didn't count.

In Florida and Michigan, people went to the polls thinking that their votes would not count. But then Clinton saw that the results weren't what she wanted nationally if Florida and Michigan didn't count, so she tried to change to the rules to make the results count.