Supreme Court Holds That the Second Amendment Applies to the States

Monday, June 28, AD 2010

In the case of McDonald v. the City of Chicago, the Supreme Court of the United States ruled that the Second Amendment applies to the states.  Read the decision here.  The decision was 5-4 which is absolutely stunning since I think that there was no intellectually respectable argument to be made that the Second Amendment does not apply to the states.

The bill of rights applies to the States due to the Fourteenth Amendment.   In the opinions written by the majority justices, emphasis is given to the importance that the drafters of the Amendment placed upon the rights of freed slaves after the Civil War to keep and bear arms for their defense.  A good day for the Constitution at the Supreme Court.

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16 Responses to Supreme Court Holds That the Second Amendment Applies to the States

  • Apropos of our discussion a few weeks ago regarding Justice Scalia’s view that “tradition” should inform the Court’s “substantive due process” jurisprudence, note that this was key to the Court’s decision. (See also Justice Scalia’s concurrence, in which he masterfully dissects Justice Stevens’ dissent.)

    I think Justice Thomas’ privileges or immunities clause analyisis is the better argument from both an originalist and textualist standpoint. But, given that that ship has already sailed, and given the need to limit the Court’s “substantive due process” jurisprudence to those rights that actually have some grounding in the text of the Constitution and the history and tradition of our nation, I can’t say that I blame the majority for relying on the due process clause rather than privileges or immunities, and using this case as a vehicle for defining the limits of “substantive due process”.

  • One gets the feeling that, should a case that hinges upon the question “Does the Constitution require that there be a House and Senate?” make its way to the SCOTUS, the vote would come down five votes to four. Sadly, no one seems able to predict whether the five would be for or against.

    Those of you who think “we are a nation of laws” will find yourselves confounded by the caprice of five untouchables in black robes.

  • I agree. The vote should have been 9 – 0.

    One, “the right of the people to bear arms shall not be infringed.” Can the four dissenting read?

    Two, I bet “dollars to donuts” that the four dissenting (plus Kagan) will affirmatively vote (hallucinating) that the constitution gives a woman the RIGHT to have taxpayers pay a medico to exterminate her unborn babies.

  • Incorporation through the 14th has been piecemeal. The court had never adopted a blanket doctrine of incorporation. But I agree that if we’re going to incorporate at all, the 2nd amendment has to be included.

  • I’m with restrainedradical. The incorporation doctrine is hardly an obvious feature of our constitution, but there is no coherent basis for excluding the 2d amendment from its ambit once it has been applied to the other enumerated rights.

  • T. Shaw, I think the four dissenters are right in insisting that the clause you quote–“the right of the people to bear…”–is qualified, and rendered more precise in its intent, by the prior clause, establishing the need for militias. On an originalist reading of this text, the right to bear arms for, eg. the purposes of hunting or personal protection, simply does not exist.

  • WJ,

    That issue was decided and rejected in the Heller case. They had already lost on that. And don’t pretend that your argument is originalist. Calling it such doesn’t make it so.

  • wj:

    I think the four dissenters do not believe we the people should be free people. I doubt they believe in individual liberty.

    You may read the commentaries, minutes, and statements of the “state” conventions, and all the drafters/founders. At no time was the right of US citizens to individually keep and bear arms questioned until around the time the federal government instituted the income tax (they needed to amend the Constitution) and Federal Reserve System.

    But, you’re right. Once the Obama regime packs the court. [I’m ‘chanelling’ Thomas Jefferson here] We’re likely to devolve into slaves to the state.

  • wj:
    Your is a common argument. The problem is that it does not withstand the scrutiny:

    http://www.guncite.com/journals/vanalful.html

    Van Alstyne is one of the leading con law scholars of our time. Although a liberal to the core, he is ruthlessly principled in his constitutional reasoning. for instance he is pro choice as a policy matter, but believes Roe was a terrible decision.

  • I’m aware of van alstyne and heller etc and disagree with the findings of both. You can disagree with heller precisely on originalist grounds; which is not to say you must–just that you can as a matter of interpretation. Both heller and van alstyne perform any number of impressive exegetical contortions to escape what to my mind is the clear intent of the sentence in question. But maybe you’re right that the four dissenters are motivated less by interpretive scruple and more by policy preference.

  • Fair enough, Wj. For what it is worth I have no great interest in gun regulation as a policy matter, and really don’t care if guns are outlawed. But I find Van Alstyne’s exegesis if the 2d Amendment air tight. Moreover, I have known Bill for almost 30 years; he is immune to exegetical contortion. I have no opinion on the motivations of the four dissenters. I just don’t think there exists a reasonable argument for sparing the 2d Amendment from the incorporation doctrine.

  • Way too much education wasted here on a rather simple issue. Where in the Constitution is any branch of the federal government given authority to disarm either the states or the people? The ninth amendment applies. The critical issue here, and the reason many oppposed incorporation of “the Bill”, is that the amendment did not create the right, though it is now treated as if it had; it only acknowledges the right. No one ever would have written the second amendment as it was written to make sure that states allowed their militia to keep arms at their homes (the point of mobilization). To say they would have is simply dishonest. So it comes down to this; you are either for, or against the Constitution. There are no nuances here that merit consideration.

  • I’ve heard estimates that 90,000,000 Americans own firearms.

    “The beauty of the Second Amendment is that it will not be needed until they try to take it.” Thomas Jefferson

    “Laws that forbid the carrying of arms…disarm only those who are neither inclined nor determined to commit crimes…such laws make things worse for the assaulted; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” Thomas Jefferson 1764

    “No free man shall ever be debarred the use of arms.” Thomas Jefferson proposed Virginia constitution 1776

    “The Constitution preserves ‘the advantage of being armed which Americans possess over the people of almost every other nation…(where) the governments are afraid to trust the people with arms.'” The Federalist #46

    “…arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property…Horrid mischief would ensue were the law-abiding deprived the use of them.” Thomas Paine Thoughts on Defensive War 1775 – proof positive in all the states that infringe the Second Amendment.

    “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.” Samuel Adams 1788: During Massachusetts’ Constitution ratification convention.

    “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.” Patrick Henry: during Virginia’s ratification convention (1788)

    “Arms in the hands of individual citizens may be used at individual discretion…in private self-defense.” John Adams 1788

    “A militia when properly formed are in fact the people themselves…and include all men capable of bearing arms…To preserve liberty it is essential that the whole body of the people possess arms.” Richard Henry Lee Additional Letters From The Federal Farmer 53 (1788)

    “I ask sir, what is the militia? It is the whole people…To disarm the people is the best and most effectual way to enslave them.” George Mason: Virginia’s US Constitution ratification convention (1788)

    “To secure the blessings of liberty to ourselves and our posterity.” US Constitution

    “Government is not reason; it is not eloquence; it is force; like fire, it is a dangerous servant and a fearful master.” George Washington, Farewell Address

  • That Washington quote has to be the best. Seems our Presidents went downhill from there.

  • Kevin, nobody reads the 9th Amendment as you do because it would be ridiculous to do so. The 9th was intended merely to clarify that the Bill of Rights shouldn’t be interpreted to prohibit all other rights. It doesn’t ensure any rights. It only ensures that absent a law prohibiting it, you have the right to do it.

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Sharia Law and the U.S. Constitution

Friday, June 25, AD 2010

[Update I:  I have streamlined the following post to be easily readable to the average layman, but informative enough for a lawyer or law professor to learn a bit more on the similarities and differences between Sharia and U.S. Law]

Is Sharia compatible with the U.S. Constitution?

The simple answer is of course “no”.

But lets take a look at some aspects of Sharia Law and where it may or may not conflict with the U.S. Constitution.  (For disclosure I am not a lawyer nor a legal expert in Sharia or U.S. Law.)

First, what is Sharia?

Wikipedia states Sharia refers to the sacred law of Islam.  All Muslims believe Sharia is God’s law, but they have differences between themselves as to exactly what it entails.  Which will be difficult to discern what to apply when, but we’ll labor along for the sake of discussion.

In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes. Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare (Second Sudanese Civil War).

The recent incidents at the Arab International Festival have reinforced the poor image of Sharia inside the United States and its incompatibility with American culture and law.

The following is a truncated version with a couple of modifications (eliminating repetitious ibids and links) of multiple Wikipedia entries [with my comments]:

Legal and Court Proceedings:

Wikipedia states that Sharia judicial proceedings have significant differences with other legal traditions, including those in both common law and civil law.

1. Sharia courts do not generally employ lawyers; plaintiffs and defendants represent themselves.

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14 Responses to Sharia Law and the U.S. Constitution

  • “Is Sharia compatible with the U.S. Constitution?”

    “The simple answer is of course “no”.”

    I agree 100%.

    Thank you for taking the time to write this most informative article on the differences between Sharia law and the Constitution or/and Civil Law within the U.S.

    Freedom which is one of America’s core principles is not compatible with Sharia Law.

  • This is “one nation, under God, indivisible with liberty and justice for all.”

    The motto is “e pluribus unum” not “e pluribus pluribus.”

    There is no liberty or justice under sharia, nor is there either under the yoke of Muhammedanism: the summation of evil and all heresies.

    The filthy pagans cannot charge or pay interest; so they have a sort of subterfuge that makes the loan/interest like a lease or installmant sale plan at a profit (not interest) over tte monthly to the seller. I had to try to twist that mare’s nest to fit US accounting and taxes. It was frustrating dealing with the morons.

  • Religion is never to be instituted in government. Not just Islam.

  • Juri,

    The U.S. Constitution is loaded with Christian idioms and language.

    Are you exhibiting some form of Christophobia?

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  • The article ‘Sharia Law and the U.S. Constitution’ misses three (3) very important points for Catholics:

    1. Islam is misclassified as a religion for a reason – Islam is a governmental system of ‘conquest and control’ that is both ‘expansionist and intolerant’.

    2. There is nothing missing in the Laws of the United States of America that needs to be fixed by so-called Sharia Law.

    3. The U.S. Constitution is a divinely-inspired work that speaks of a Republic (i.e. no monarchy) with God-given (i.e. no church) inalienable rights of the individual.

    In point one, Catholics should know the difference between a religion and a cult: A true religion revolves around a spiritual ‘deity’ (i.e. a one and only God); whereas a cult revolves around a human being or multiple pagan gods. To understand this better, one needs only compare the life and teachings of Jesus to the life and teachings of the founders (i.e. human beings) of other cults or religions. The Crusades were a reaction to Islamic aggression and expansion into the Holy Land.

    To point two, Catholics will be the first to remind others that in America, it is religion that is protected from government and not the other way around. It is ‘freedom of religion’ and not ‘freedom from religion’ that we are privileged to enjoy here. In Saudi Arabia, no Christian churches are allowed. All over the world, intolerance towards Christians often results in mass murder and destruction of churches. Christianity is the only true religion of peace.

    As for point three, Catholics need to take a stand between ‘one world governance’ (i.e. economic, religious and military globalism) and ‘American Sovereignty’. (i.e. as guaranteed to them in the U.S. Constitution and the Bill of Rights.) Catholics also need to be aware of the difference between a collective and mandated ‘social justice’, administered by a socialist government and the spiritually-correct ‘morality and generosity’ exemplified by Our Lord and Savior Jesus Christ.

    Last but not least, Catholics really need to educate themselves about the reason why the Constitution requires Presidents and Vice-Presidents of the United States to be ‘Natural Born Citizens’. (i.e born in the U.S. to parents that are both citizens, etc.) The reason for this is to avoid ‘divided loyalty’. John F. Kennedy, the first and only Catholic President was quite eloquent and clear about his loyalty to the people of the U.S. vs. the Pope. The current president has demonstrated his loyalties are divided between International Globalist Banking and Expansionist Global Islam. Somehow, he seems to have left the American people out of the equation.

    We need to pray for America as we’ve never prayed for her before. And may God bless and protect our Holy Catholic Church.

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  • This is a great short summary, thanks! These are details that most people don’t know.

    Numbers 7 & 8 could be greatly expounded upon. What I’ve heard/read somewhere is that the reason why many women never report rape is that if they cannot prove they were raped and yet in the course of the trial they “admit” to having sex they may be stoned for adultery under Sharia law.

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Scalia on Stare Decisis and Roe

Sunday, March 22, AD 2009

Hattip to the ever eagle eyed Jay Anderson at Pro Ecclesia.   Justice Antonin Scalia on stare decisis and Roe.  By the way, Scalia’s low estimate of Roe as a legal opinion is pretty nearly universal in the legal world.  Liberal attorneys and judges, even though they support abortion on demand, will frequently agree in private, and sometimes in public, that Roe was a shoddy piece of legal work, and that Harry Blackmun, the author of Roe, was a poor excuse for a jurist.  This of course does not prevent them from supporting Roe since they approve of the result, but it does mean that all of the many cases following Roe are based on an intellectually, and of course constitutionally, rotten foundation.  We can see this in the opinions that strain to make sense of Roe, which, as Judge Bork famously noted, is completely devoid of legal argument.

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2 Responses to Scalia on Stare Decisis and Roe

  • Roe can be defended solely on an outcome-based (if you are pro-choice) criteria. It is an abomination from a constitutional perspective. What’s worse is that I think Casey is an even greater atrocity, and I’ve always loved Scalia’s dissent. It sums up what’s wrong with it so perfectly.

  • I’m not going to sit in judgment of the soul of anyone. Lord knows, I’ll have enough of my own failures to answer for on the Day of Judgment.

    But let’s just say I’m glad that a last-minute switch in the Casey decision to preserve the abomination of Roe v. Wade for at least another generation won’t be one of the things that I’ll have on my conscience when I answer to the Lord for my treatment of the least of these.