Thursday, December 30, 2010
Thursday, September 30, 2010
Here is the OpEd on the McDonald v. Chicago Supreme Court decision that ran in various papers and news outlets around the country in late June and early July.
McDonald is Cause for Celebration for All
The McDonald v. Chicago Supreme Court decision that the Second Amendment is fully binding on state and local governments is cause for celebration - even among those deeply concerned about gun violence in the United States.
First, nothing in the Court’s decision prevents state and local governments from continuing to impose meaningful regulations on the possession of firearms. The Supreme Court explained that the Second Amendment “limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”
To emphasize the point that reasonable regulations will still be allowed, the Court quoted from the brief signed by 38 States supporting the Court’s ultimate decision, which said: “State and local experimentation with reasonable firearms regulations will continue under the Second Amendment.” And in this case the Supreme Court did not actually expressly reject the Chicago-area restrictions, but rather returned the case to the federal Court of Appeals in Chicago to determine if the regulations still pass muster.
There is nothing unusual in the approach taken by the Supreme Court in this case. Others of our most fundamental rights may be regulated, but never prohibited outright - such as the First Amendment’s protection for freedom of speech and the Fourth Amendment right to be free of unreasonable searches and seizures. These and all rights are subject to reasonable “time, place, and manner” governmental regulations.
Second, we bolster our claim on all of the rest of our constitutionally-protected rights – both enumerated and unenumerated (the right to privacy, for example) – when we adopt the sort of expansive view of liberty recognized in the decision. A faithful reading of the Constitution simply does not allow us to pick and choose from among those constitutional rights with which we may agree or disagree – and those rights should be protected not only from infringement by the federal government, but also by state and local governments.
The one thing state and local governments may not do is enact regulations that prohibit a person’s right to keep a firearm for self-defense. Otherwise, not much else should change.
Four of the majority justices reasoned that the clause is incorporated through the 14th amendment due process clause (the conventional argument); one, Justice Clarence Thomas reasoned it is incorporated through the 14th amendment privileges or immunities clause. Thomas's reasoning was the reasoning for which I argued in the amicus briefs and law review articles related to this issue. So, we wish we would have gotten a majority on the privileges or immunities argument, but at least Thomas agreed.
One of the most disappointing parts of the case was that the four dissenters - Breyer, Stevens, Sotomayor and Ginsburg, people with whom I usually have more in common than not - did not go along with the persuasive history that the fourteenth amendment privileges or immunities clause was intended to apply the ENTIRE Bill of Rights to the States.
I published an OpEd at the time of the decision, which ran in a good number of papers
Friday, May 21, 2010
I'm pleased with how it came out - should be out in bound book form in December or January.
Sunday, March 21, 2010
When tea partiers inquire closely into the Constitution’s original intent, they will find what they expect to find: it was created, first, to protect individual liberty from overzealous government.
Yet they may be surprised when they learn that Franklin, Washington, Hamilton, Adams, Jefferson and Madison – as bitterly contentious in politics as present-day politicians (if not more so) – all agreed on the one bedrock principle upon which any good government depended: VIRTUE – or, literally, “Public Spirit.”
As Thomas Paine (Common Sense, The Rights of Man, etc.) insisted: “Public good is not a term opposed to the good of individuals. On the contrary, it is the good of every individual collected. It is the good of all, because it is the good of every one.” Hence Paine advocated progressive taxation, aid to the unemployed, and free public education.
Wednesday, March 3, 2010
Justice Antonin Scalia - who claims to be beholden to the text and history of the Constitution - belittled the arguments claiming that the text and history of the Constitution require consideration of the Privileges or Immunities clause. When Alan Gura, the attorney arguing the case, began his discussion of Privileges or Immunities, Scalia pointedly asked him whether arguing Privileges or immunities was "easier" than the due process argument. "[I]f the answer is no," he continued, "why are you asking us to overrule 150, 140 years of prior law?" Scalia also said that "What you argue is the darling of the professoriate"; and speculated that Gura is "bucking for a place on some law school faculty."
Scalia brays loudly about the importance of original intent; yet when serious original intent arguments come before him that would be contrary to his narrow, cramped view of individual liberty, he is unwilling to listen. What a hypocrite.