Left-Wing Hypocrisy on the Supreme Court

Jacob Sullum of Reason does a great job of exposing the absurd arguments of the anti-Second Amendment bloc on the Supreme Court:

In their dissenting opinions, Justices John Paul Stevens and Stephen Breyer (joined by Ruth Bader Ginsburg and Sonia Sotomayor) worry that overturning gun control laws undermines democracy. If "the people" want to ban handguns, they say, "the people" should be allowed to implement that desire through their elected representatives. What if the people want to ban books that offend them, establish an official church, or authorize police to conduct warrantless searches at will? Those options are also foreclosed by constitutional provisions that apply to the states by way of the 14th Amendment. The crucial difference between a pure democracy and a constitutional democracy like ours is that sometimes the majority does not decide. Likewise, Stevens defends "state and local legislatures' right to experiment," while Breyer is loath to interfere with "the ability of States to reflect local preferences and conditions—both key virtues of federalism." Coming from justices who think Congress can disregard state decisions about the medical use of marijuana because a plant on the windowsill of a cancer patient qualifies as interstate commerce, this sudden concern about federalism is hard to take seriously. Another reason to doubt the dissenters' sincerity: They would never accept federalism as a rationale for letting states "experiment" with freedom of speech, freedom of religion, or due process protections. Much of their job, as they themselves see it, involves overriding "local preferences" that give short shrift to constitutional rights. ...The dissenters' most frivolous objection is that making states obey the Second Amendment "invites an avalanche of litigation," as Stevens puts it. Every day we hear about cases in which people argue that the government has violated their rights under the First, Fourth, Fifth, Sixth, or Eighth amendment. Neither Stevens nor Breyer wants to stop this "avalanche." Only when the Second Amendment is added to the mix do they recoil in horror at the prospect that Americans will use the courts to vindicate their rights. Stevens warns that "the practical significance of the proposition that 'the Second Amendment right is fully applicable to the States' remains to be worked out by this Court over many, many years." But that's because the Court for many, many years ignored the Second Amendment while gradually defining the contours of its neighbors in the Bill of Rights. There is a lot of catching up to do.

Is Clarence Thomas the Best Supreme Court Justice?

I'm not a lawyer, so I certainly can't pretend to have expert views, but everytime I read something like this, my regard for Justice Thomas rises even higher.

In the McDonald case, the justices were asked by the plaintiffs to strike down Chicago’s gun-control ordinance as a violation of the Second Amendment to the Constitution. In order to do so, the justices would have to make two maneuvers. Of course, they’d have to rule that the ordinance runs afoul of the Second Amendment’s prescription that “the right of the people to keep and bear Arms, shall not be infringed.” But they’d also have to rule that the Second Amendment restricts not just Congress’s ability to make laws controlling the use of guns, but that of state governments as well. Remember, the Bill of Rights, as originally constructed, only applies to the federal government. In order to extend the Second Amendment to laws passed by states or cities, the court was faced with a choice of two clauses embedded in the 14th Amendment. It could “incorporate” the Second Amendment to the states through the 14th Amendment’s Due Process Clause. Or, pursuant to the 14th Amendment’s Privileges or Immunities Clause, it could deem “the right to bear arms” one of the “Privileges” or “Immunities” that the states are forbidden from taking away. So you’ve never heard of the Privileges or Immunities Clause? We’re not surprised. The clause was largely neutered in a set of cases decided in 1873. ...Those arguing for resuscitation of the Privilege or Immunities Clause pinned their hopes on Justice Antonin Scalia and Justice Clarence Thomas, both known for their “originalist” approach to constitutional interpretation. But Justice Scalia on Monday opted, along with Justices Alito and Kennedy and Chief Justice Roberts, to use the Due Process Clause. As Liptak noted, Justice Scalia, in a concurrence, “acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states” but went along with it “’since straightforward application of settled doctrine suffices to decide it.’” But in a separate concurrence, Justice Thomas boldly went where no justice has gone before: to the arms of the Privileges or Immunities Clause. He wrote:

[T]he text of the Privileges or Immunities Clause . . . command[s] that “[n]o State shall . . . abridge” the rights of United States citizens . . . the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.

The rationale didn’t carry the day, but many legal commentators were thrilled by Justice Thomas’s concurrence. “He’s sticking with the text of the Constitution,” said Georgetown law professor Randy Barnett, to the Law Blog. “At the same time, nobody voices disagreement with Justice Thomas. And that’s because they can’t.” Writing at Scotusblog, George Mason’s Nelson Lund cheered Thomas’s opinion:

His opinion is scholarly and judicious, and it cements his standing as the only Justice who is more than a half-hearted originalist.

Barnett and others hope that Thomas’s lone dissent has planted the seeds for a constitutional reawakening rooted in the Privileges and Immunities Clause.

A (Narrow) Victory for the 2nd Amendment

John Lott is one of America's leading scholars of gun rights and the 2nd Amendment. His Foxnews.com column explains today's ruling in favor of the Constitution and explains how the 2008 Heller decision led to less murder in Washington, DC.

With another closely decided 5 to 4 decision, the Supreme Court ruled today that state governments are not able to ban most Americans from owning most types of handguns. The court ruled that firearms are "essential for self-defense." The court found that if the Second Amendment indeed protects an individual right to own a gun, the notion that the government can't ban all handguns is the minimum protection the Constitution can offer. ...When the “Heller” decision was handed down in 2008 striking down Washington, D.C.'s handgun ban and gunlock regulations, Chicago's Mayor Richard Daley predicted disaster. He said that overturning the gun ban was "a very frightening decision" and predicted more deaths along with Wild West-style shootouts and that people "are going to take a gun and they are going to end their lives in a family dispute." Washington’s Mayor Adrian Fenty similarly warned: "More handguns in the District of Columbia will only lead to more handgun violence." Yet, Armageddon never arrived. Washington’s murder rate has plummeted -- falling by 25 percent in 2009 alone. This compares with a national drop of only 7 percent last year. And D.C.'s drop has continued this ear. Comparing Washington’s crime rates from January 1 to June 17 of this year to the same period in 2008, shows a 34 percent drop in murder. This drop puts D.C.'s murder rate back to where it was before the 1977 handgun ban. Indeed, the murder rate is as low as was before 1967. Other gun crimes have also fallen in Washington. While robberies without guns fell by 7 percent, robberies with gun fell by over 14 percent. Assaults with weapons other than guns fell by 7, but assaults using guns fell by over 20 percent. ...Neither the latest justice, Sonia Sotomayor nor the next potential justice, Elena Kagan are sympathetic to an individual's right to self-defense.

Questions for Elena Kagan

I don't know what will happen when the Senate Judiciary Committee grills Obama's Supreme Court nominee, but I hope at least one member reads George Will's column and uses some of his suggested questions. They are all worth reading, but here are my three favorites:

The government having decided that Chrysler's survival is an urgent national necessity, could it decide that "Cash for Clunkers" is too indirect a subsidy and instead mandate that people buy Chrysler products? ...Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? ...Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo the 1896 ruling in Plessy v. Ferguson that segregating the races with "separate but equal" facilities is constitutional?

Let's Celebrate Some Inspiring News on Property Rights

This new video from the Institute for Justice celebrates the backlash against the Supreme Court's reprehensible Kelo decision that allowed politicians to seize private property for the benefit of commercial developers and other campaign contributors.



The best part of the video comes shortly before the three-minute mark, when the narrator notes that the corrupt politicians of New London, CT, have not received any additional tax revenue as a result of stealing Susette Kelo's house. Sometimes, as I noted in an earlier blog entry, there is poetic justice.

Poetic Justice for Susette Kelo

The Kelo case was one of the most reprehensible Supreme Court decisions in recent history. The Court said it was okay for a local government to seize a private home solely to please a big corporation. So it is morbidly satisfying to see that the strategy has backfired for the town. Tim Carney reports for the Washington Examiner:

Susette Kelo's little, pink house in New London, Conn. -- like the houses of all her neighbors -- is now a pile of rubble, overgrown with weeds. But Pfizer, the company that called for the demolition in order to build a new research and development plant, announced Monday it is packing up and leaving town in order to cut costs after its merger with fellow drug-giant Wyeth. New London now has a wasteland where a neighborhood once stood, and no jobs or business to show for it. It's another travesty of central planning. ...Kelo, and other residents who didn't want to move, sued to block the condemnation. They lost, but they fought all the way to the U.S. Supreme Court. There, the four liberal justices joined with moderate Anthony Kennedy to rule in favor of the developers -- the takings were perfectly legal. ...the takings in New London begin to sound like a great progressive victory: government, triumphing over the exploitive notion of "property rights," helps the many at the expense of a few. But, New London was really another example of political cronyism and politicians using the might of government in order to benefit well-connected big business at the expense of those poorer and less influential. Consider that the head of the New London Development Corporation was Claire Gaudiani, who was married to David Burnett, the Pfizer executive who wanted "a nice place to operate." Pfizer vice president George Milne also sat on the development corporation's board. ...Pfizer got its loot - free land, special tax breaks, and government-funded clean-up of the neighborhood (including clearing out the unsightly neighbors) - and the area prepared for economic "rejuvenation," as Justice Stevens put it. It didn't work out that way. The Fort Trumbull neighborhood Pfizer had bulldozed today consists only of "weeds, glass, bricks, pieces of pipe and shingle splinters," according to the Associated Press.