Tuesday, July 6, 2010

The Bill of Rights - Still

The Bill of Rights, the first ten Amendments to the Constitution, contain most of what we consider to be our basic, fundamental rights: free speech, freedom of religion, the right to gun ownership, freedom from unreasonable searches and seizures, due process, and the right to a jury trial. These rights were understood by the Founders to put constraints on the power of government. At the time of their passage, these constraints were understood to apply to the newly formed federal government only. The First Amendment even begins: "Congress" shall make no law respecting an establishment of religion...

After the end of the Civil War, Congress passed and the states ratified the Fourteenth Amendment, ratified July 9, 1868. Most famously, it provided that no STATE shall "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Subsequently, the Supreme Court has used the due process clause of the Fourteenth Amendment to guarantee many of the rights within the Bill of Rights from being limited by the states. For example, although the First Amendment constrains the power of Congress with regards to speech and religion, through the due process clause of the Fourteenth Amendment, the Court has held that the states are similarly constrained. The Court has done the same with other rights in the Bill of Rights, but has never so applied the Fourteenth Amendment's due process clause to the Second Amendment.

The Second Amendment provides as follows: "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." Two years ago, in Heller vs. DC, the Supreme Court held that individuals in the District of Columbia had the right to bear arms. The left believes that the right to bear arms lies with the militia (now, the National Guard), while the right believes that it is the "right of the people." In the term just ended, the Supreme Court has now held that the people have the right to bear arms; and through the Fourteenth Amendment's due process clause the States may NOT outlaw the possesion of guns (at least not handguns). The case was McDonald vs. Chicago. This was a 5-4 decision. Notwithstanding the placement of the right to bear arms in the Bill of Rights, and notwithstanding that it says "the right of the people," and notwithstanding that at the time of its drafting the militia WAS the people, four of the justices were prepared to hold that the people have no such right. If that viewpoint prevailed, states could outlaw gun ownership.

Those four Justices adhere to the belief that gun ownership is dangerous and results in numerous deaths and injuries. Justice Breyer, in dissent, noted guns cause "well over 60,000 deaths and injuries in the United States each year." The LA Times, in their 6/29/10 Editorial agreed: "we wish states and cities were able to do even more to prevent gun violence." As this writer has noted on numerous occassions, the left will never be persuaded by the facts, when those facts fly in the face of their beliefs. So, as Justice Alito, for the majority, noted, Chicago's handgun murder rate actually increased after Chicago passed its handgun ban. Criminals are not going to obey the law, so that left honest citizens defenseless. Yes, guns can be very dangerous; but a constitutional right should not be denied on the basis of an unsupported factual belief that more guns means more violence. More guns in the hands of law-abiding citizens means less gun violence, because now the criminals have to think twice.

The right to free speech also held on, but barely, in the Citizens United vs. Federal Election Commission case, holding that corporations and unions could not be restricted in their campaign ads as long as those ads were independent expenditures, not affiliated with any candidate. This case was discussed in greater detail in an earlier blog. The mainstream media (such as the NY Times and LA Times) was generally offended by the decision granting basically unfettered political speech rights to corporations; not seeing the irony that they themselves are corporate owned. Now, in another free speech case, the Court upheld a federal statute that made it a crime to provide "material support" to a designated foreign terrorist group (Holder vs. Humanitarian Law Project; herinafter referred to as the HLP). Here, the mainstream media saw an assault on free speech when the Court denied the right to advise terrorist organizations, even though the members of the HLP claimed that they were merely advising these terrorist groups on peaceful methods of accomplishing their goals. The Court did NOT take away the rights of these individuals to speak and write their opinions; it said they could not ADVISE these terrorist groups, regardless of the nature of the advice. A distinction missed by the mainstream media.

It is clear to all by now where President Obama would like to take the Supreme Court - on a far left turn. In only 18 months he has been able to appoint one leftist Justice (Sotomayor) and is on his way to getting another in Elena Kagan. A Justice Kagan would have little adherence to the actual wording of the Constitution. When she was Dean of Harvard Law School, she invited the former head of the Israeli Supreme Court (Aharon Barak) to speak. This is a man who believes that judges should "make" the law, essentially as a legislative body. Yet she described Barak as her "judicial hero." (Per article by Phyllis Schlafly in the 6/30/10 Investor's Business Daily.) Kagan also hired one Noah Feldman, who believes in the "use of international materials in Constitutional decision making." (Per same IBD article.) Kagan agrees, as she testified to the Senate on her nomination to be the Solicitor General: "reasonable foreign law arguments" could be used to interpret the US Constitution. (Again, per the same IBD article.)

In testifying before the Senate on her Supreme Court nomination, she was asked by Senator Tom Coburn if the government could order Americans to eat three servings of fruits and vegetables every day. (It remains to be seen what the government might order under Obamacare.) The Solicitor General replied as follows: "I think that the question of whether it's a dumb law is different from...the question of whether it's constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they're senseless." (From the 7/6/10 IBD.) As noted in a prior blog, this is a woman who would weigh the value of speech to society before giving it constitutional protection.

But it should be a surprise to no one that Obama wants such people on the High Court. In 2001 he even opined that the Warren Court was not "radical" enough. He was disappointed that that Court "didn't break free from the essential constraints placed by the Founding Fathers in the Constitution, in order to allow for a 'redistribution of wealth.'" Remember that "spread the wealth around" comment to Joe the plumber? That was no slip of the tongue. Sadly, Senators like Republican Lindsey Graham, believe that since Obama won the election, he should be able to get his nominees on the Court. If he believes that Democrats will return the favor when a Republican is in the White House, he is mistaken. When John Roberts was nominated for the Court by President Bush, one Democrat Senator who voted against him noted that Roberts was, nonetheless, well qualified. That same senator voted against now Justice Alito, President Bush's other Supreme Court appointment. And that Senator...is now President Barack Obama.