When All Else Fails – Pay Attention To The High Court
In a 5-4 decision handed down by the U.S. Supreme Court today, the court has struck down the 32 year-old ban on handguns in Washington D. C. – and elsewhere, for that matter.
I find it less interesting that the court ruled against the gun ban. After all, the ban was an obvious encroachment on a citizen’s constitutional rights. What is interesting to me is that four of the Justices Supreme reasoned that the ban was constitutional.
How is it that these four dissenting Justices fail to understand the Founding Fathers? Were the Founders unclear about their belief that the citizens should not only have the right to bear arms – they should take up arms against a tyrannical government?
Bill of Rights – First Amendment – free speech – check.
Second Amendment – right to bear arms – check.
I’m no legal scholar, but it seems that gun rights were high on their list of priorities.
A 5-4 decision is no slam dunk. Yes, it’s a ruling… but without the kind of consensus I would like to see. Look at some of the recent rulings, like bestowing habeus corpus rights upon enemy combatants captured on the battlefield. Wow… so now the terrorists can make a mockery of our legal system.
A recent decision (Kelo vs City of New London) regarding eminent domain – another 5-4 decision – further eroded property rights by allowing governments to seize property to be conveyed to a developer for private redevelopment.
You might be coming to the conclusion that – once again – we have been given another election cycle of less-than-perfect choices. Seriously flawed candidates on all sides. Yep – suck it up. We’re hosed.
May I ask that you consider the high court in your decision this year?
Our rights and freedoms are constantly under attack, and since the Supreme Court is the ultimate ‘check and balance’ in our system of governance – it is increasingly important that you consider the kind of jurists that a President will nominate.
caleb says:
Habeus corpus is a constitutional right as well. You’re being a bit selective in your commentary. What is our justice system for if not to handle such cases?
June 26, 2008 — 9:25 am
Mark McGlothlin says:
Doug – an extremely critical reminder and very well written post. Choices this season are suboptimal, though the potential impacts on our country are phenomenal. Supreme court jurists and taxation issues are very high on our “think about your vote list” this year. Write a couple more of these before November please.
June 26, 2008 — 9:26 am
Brian Brady says:
I am so underwhelmed with the choices this November but I am reminded how Scalia, Roberts, Thomas, and Alito made it to the Big Bench when i read your take.
June 26, 2008 — 9:54 am
Gary Frimann says:
Are our freedoms in peril?
If so, you would have to argue that our “freedoms” were imperiled by Fair Housing laws, Fair Lending Laws, tax laws, etc.
I don’t think so.
This was the first gun case to come upon the Supremes since the Twenties. The Chief of Police of D.C., who was at the hearing, stated that she had to check her gun in at the door, and was forbidden to caryy her gun into the chamber of the Court…What’s up with that?!? Where’s the outrage?!? Guns are banned on airplanes–There goes our freedom out the window. The question was the facts prove that since the handgun ban went into effect numerous years ago, the number of handgun deaths in DC has dropped substantially. Not that we have become a more polite society. The death penalty does not deter killing, because people still kill. I am, personally, against the death penalty because there is no writ of resurection, and it is a human system, subject to error.
The state taking a life is pretty final. Ya gotta admit.
The case was argued as a “health and Safety” issue, which under the Police Power of the state, they have the right to do. Just as they have the right by zoning NOT to have a strip club or tavern next to a school.
Free speech does not allow one to incite a riot, or defame another, so I guess we really don’t really have free speech now, do we…
There are limits to all our freedoms. I don’t think a trigger lock is a slippery slope. I think if you want to ride a motorcycle without a helmet, knowck yourself out, I just don’t want ot pay for your hospital bill or rehab bill to support your right to this freedom.
Sorry for the rant. Somewhere along the way in the last 40 years, since “Ask not what your Country can do for, but ask what you can do for your country” has seeemingly been lost. Welfare has become a hammock, and not a safety net. People are crying out to the government for help with their bad choice of a mortgage, when they had no skin in the game, and are now walking away. The gov’t is actually encouraging it by allowing forgiveness of their once-owed IRS taxable gift. CRAZY! More homes on market means more homes to sell which means prices drop.
Issues are not black and white. There is a lot of gray, despite what mega church leaders want their flock to believe… I don’t think a vast majority of the American public could possibly undrerstand the buance of a nuclear test ban, oir immigration reform.
Just my $.02.
June 26, 2008 — 10:01 am
Cash Back Real Estate says:
Good posting. That is the thing about the law, it comes down to an opinion or interpretation by an individual or a group of people.
June 26, 2008 — 10:25 am
David Shafer says:
You might have forgotten that part of the second amendment that says “A well regulated militia, being necessary to the security of a free state…”
The constitution is a living document, there is nothing sacred about it.
In fact it wasn’t until around 1900 that laws were begun to be created to coax out the implementation of what the constitution had enshrined. In short, it is only with the supreme court decisions that the law was connected with the constitution. Hence the long period of time that “slave codes” governed blacks and not the constitution and the idea that women were men’s property governed women not the ideas enshrined in the constitution.
Here is a summary from the ACLU website:
The Bill of Rights established soaring principles that guaranteed the most fundamental rights in very general terms. But from the beginning, real live cases arose that raised difficult questions about how, and even if, the Bill of Rights would be applied. Before the paper rights could become actual rights, someone had to interpret what the language of the Bill of Rights meant in specific situations. Who would be the final arbiter of how the Constitution should be applied?
At first, the answer was unclear. Thomas Jefferson thought that the federal judiciary should have that power; James Madison agreed that a system of independent courts would be “an impenetrable bulwark” of liberty. But the Constitution did not make this explicit, and the issue would not be resolved until 1803. That year, for the first time, the U.S. Supreme Court struck down an act of Congress as unconstitutional in a case called Marbury v. Madison. Although the facts of this case were fairly mundane (a dispute over the Secretary of State’s refusal to commission four judges appointed by the Senate), the principle it established – that the Supreme Court had the power to nullify acts of Congress that violated the Constitution – turned out to be the key to the development and protection of most of the rights Americans enjoy today. According to one eminent legal scholar, the independent judiciary was “America’s most distinctive contribution to constitutionalism.”
Although a great document, the constitution is only a general set of ideas, needing specifics to become operational.
June 26, 2008 — 11:24 am
jay mclean real estate says:
That 4 justices endeavored to take away my rights is alarming. What should have been much wider majority barely transpired. This is so alarming indeed. These elitists think they know what is best for our lives regardless of the constitution and bill of rights. That’s the arrogance of the left. The elitists even think you should pay high gas prices so they can force you to live in the manner they think is the right way to live–close in to the city and crammed together like sardines where you can be managed and controlled better. That way some 3rd world country can produce the oil in a much more polluted and environmentally damaging manner ironically. But then again, liberals aren’t known for thinking about the long term consequences of anything–just short term popularity and control over people.
LOOK AT AMENDMENT 3:
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Use the commas in amendment 2 and actually pause when you arrive at those commas. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Since a militia is necessary, the right of people to bear arms shall not be infringed. That’s why along the same lines in amendment 3 the individual is again supposed to be protected from members of the state militia. Those who penned the Bill of Rights were very concerned with individuals being able to protect themselves from the state….
Whether individuals have the right to bear arms is not a “living” debatable issue. To think so scares the hell out of me.
This should not have been 5-4, but rather 9-0 except for the fact that some justices on the court hold their own ideals of how our society and people should behave as higher than the constitution they were originally sworn in to uphold. Did those justices start out that way? I wonder.
j
June 26, 2008 — 1:56 pm
caleb says:
j,
I’m not sure I have a position on the issue, but the whole idea of an individual squaring off against the military, or a local militia seems kind a ridiculous. It may work for Rambo, but no one else. I don’t see how your argument supports the interpretation you’ve laid out.
June 26, 2008 — 2:14 pm
Doug Quance says:
>Caleb: Military tribunals can handle the task. The same tribunals that our servicemen and servicewomen are subject to.
>Mark: I’ll try to be sure to write a few more before November. 🙂
>Brian: Underwhelmed. Couldn’t have said it better.
>Gary: Geez… you covered a lot of territory in your comment. It’s so comprehensive… it should be its own blog post.
>CBRE: Sometimes those few people thwart the will of the people, such as the recent California Supreme Court ruling on gay marriage.
>David: No doubt, the Constitution is a framework of which the Court’s interpretations define the law as it shall be observed.
>Jay: That was the basic premise of my post… why was it not 9-0? This wasn’t about screaming “FIRE” in a crowded theatre… it was about a citizen’s right to keep and bear arms. Simple as that.
June 26, 2008 — 2:23 pm
caleb says:
Wait a minute, now your going to the “will of the people” as a justification to protect individual rights? That’s a completely different take. And to take away the freedom to marry as an example?
Do you want to go back to 1967 prior to “Loving vs. Virginia?”
June 26, 2008 — 2:34 pm
Vance Shutes says:
Doug,
OMG. It is beyond fathom that four of our “supposed” most brilliant jurists are so ill-educated about the bill of rights as to vote against the second amendment! WTF are they thinking? Those four black-robed imposters knew full well the ramification of their decision, even if they were writing about a specific case for Washington DC.
It’s because of baffling decisions like this that we cannot expect any friendliness toward real-estate-related cases any time in the foreseeable future.
June 26, 2008 — 2:37 pm
David Shafer says:
Hmmmm…… to keep and bear arms…….does that include machine guns? bio-poisons? etc. or is there some limit in there to keeping and bearing arms?
Not that I really care. If you want to keep a gun in your home, good for you, carry it to your workplace, fine. Ban’s don’t work, we all know this. How do you ban guns when they are so easy to hide and so ubiquitous?
But there is an intellectual framework for the minority. What is one person’s obvious encroachment of individual rights is another’s protection from harm from said individuals. What is one’s habeas corpus protection from the government is another’s terrorist protection act. These are conflicted areas with differing opinions as to how to deal with them.
Just don’t get why folks are so emotional about the constitution which is intentionally general and written several hundred years ago. Fine gentlemen those signers of the constitution, but by no means infallible and clairvoyant! I mean arguing over commas?????
Look there are always going to be differing opinions,and the intepretation of the constitution/law will always have some winners and some losers.
And yes I do take into consideration the type of jurist that would be nominated…..just not the same consideration as you. Its been a long time since the supremes have actually been on the side of the people against the powerful (corporations and government)!
May I suggest if you are feeling a loss of rights and freedoms it might come as much from republican corporate power as democrat government power (not that I buy into that particular dichotomy).
June 26, 2008 — 3:34 pm
jay says:
I believe “corporate power” usually is acquired by serving the needs of people to earn profits rather than taking away their liberties as is the proclivity of government power–hence the need for checks and balances. And corporate power is usually just defending the private sector from the government sector. It rarely has to do with taking away the liberties or removing the choices of individuals. Although there are definitely cases of that in which industries have influenced lawmakers to make unnecessary and anti consumer choice regulations so they can maximize profits. But mostly corporate power just seeks to protect itself from gov regulators who know nothing about what they are regulating.
I’d like some examples of the right taking away liberties. Drugs is the main one I can think of. But the left is part of that club as well.
It’s not the right who wants to tell me how to raise my family. It’s not the right who wants to limit how I choose to educate my children. It’s not the right who wants to take away my wife’s freedom to have her children at home with a midwife. It’s not the right who is as prone to tax away my hard earned money so they can endeavor to engineer a mediocre society they can control or fail at their $$$ projects that are based on idealism versus realism.
Politicians should have as little power as possible except for defending liberty….
The most neglected amendment of all: Amendment X
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
June 26, 2008 — 6:07 pm
Mindy Allen says:
Hello Pandora…this is quite the box you’ve opened! With every election, big or small that passes by, our basic constitutional rights are slowly and irrevocably stripped away. It comes as a direct result of our own failing as a society to hold ourselves accountable for our actions and allow other people to handle their own lives…In fact I see it more as an issue of the American people giving away, no… practically begging legislators to take away our freedoms than I do the government actually forcibly taking. I hate to sound heartless but both my biggest pet peeve and my point are both hiding in the following scenario: Womans child dies tragically in a drive-by shooting. Woman then launches major campaign to change gun control laws so no mother has to feel her pain. Which leads to an expensive Congressional Hearing on Gun Control Policy..which leads to extensive media coverage and a tear jerking Oprah special to clinch the vote of the few bored house wives that bother to show up to vote for gun control because after all the hype is done all they heard were that guns are bad they kill babies. That, in my opinion, is legislation in America. Subject to social trends, media hype, and someones emotional baggage.
June 26, 2008 — 7:52 pm
Robert Kerr says:
Look at some of the recent rulings, like bestowing habeus corpus rights upon enemy combatants captured on the battlefield. Wow… so now the terrorists can make a mockery of our legal system.
Habeas corpus does not allow defendants to make a mockery of our courts but denying prisoners The Great Writ, the fundamental right to challenge their arrest and detention in court, before a judge, makes a mockery of our Constitution.
I agree with you on DC v. Heller, by the way.
June 26, 2008 — 8:51 pm
David Shafer says:
Jay, you might want to look at the history of the labor movement and the reaction of those “benevolent” businessmen. You ignore history at your own peril.
Environmental rules are a response to business polluting the environment, not some arbitrary way to curtail profits. Child labor laws, overtime laws, anti slavery laws etc. the result of changes in our morality as applied to business/life.
As to the right versus left thing. The evidence points out that both sides, at times, squeeze citizens rights. You point out the drug laws, also abortion laws which interferes in the decision between a woman and her doctor, end of life laws which dictate how a terminally ill person dies. The right also successfully put anti-assembly laws on the books (this was clearly against the constitution) in the early part of the 20th century. The draft is another example. Morality laws against alcohol, swearing/spitting in public, who can marry who, anti-sodomy laws, segregation laws, poll taxes are some more examples. There are many more.
That is why when I read about the left being so bad and the right so benevolent I react. It is just not based in any facts.
June 27, 2008 — 8:31 am
jay says:
David, you raise valid points…but they are focused on the past not the present which is where I’m focused. I read The Jungle in college and know labor unions were terribly important to correct egregious behavior of the benevolent businessmen. But are labor unions helping our society now or do they foster mediocrity and lack of accountability and lack of innovation? I’d say they are a negative now versus a positive even though they were necessary. All your examples are from the past while mine are current. That’s where we’re at.
And idiots in washington did not clean up the environment. Air quality, etc. was already dramatically improving before the Clean Air Act and the self important EPA were around. Capitalism is what cleaned up the environment. New technology and innovation by benevolent businessmen 🙂 allowed products to be produced even more efficiently while polluting less. And you better believe most of that technology was invented here in the US. That is the big picture of why our environment has improved so much the past 50 years. There may be specific exceptions where big brother was the effector but that is what the are–exceptions.
And many of your examples were shared by the left & right in their historical context–not just the right.
But I say let’s focus on where the parties (both suck) and courts are today–not in yesteryear. And with that perspective, I’m far more concerned about being limited by the L not the R today.
Media and access to it by the masses has largely diluted negative influences by corporate power now anyway. No co. wants their brand to become tainted and seen in a bad light.
j
June 27, 2008 — 8:05 pm
David Shafer says:
Jay,
Don’t misunderstand me, I stand fully behind capitalism as the most progressive force designed by man (borrowed from K. Marx)! I participate in it and use it to the best of my ability to improve my lot in life. However, to think that bad behavior by businesses is behind us is in my opinion nieve. Take at look at the food business (since you brought up “The Jungle”). The use of illegal immigrant labor, genetically altering food without concern for its consequences, importing of food with a high proportion of chemical exposure, tainted vegetables, meat, etc. Or take a look at the apparel industry, using sub contractors who use slave labor, child labor, abusive labor practices etc. Those are today’s examples!
As for the environmental movement, that started out and still remains largely a working class people’s movement.
By the way, the Rebublican Governor of Florida, just pulled off a totally ballsy move, by buying a sugar company that will stop the sugar industries polluting of South Florida and with government help restore the traditional water flow which will reverse the damage done to the everglades.
Have a great weekend.
Dave
June 28, 2008 — 8:01 am