While the Senate Judiciary Committee asked questions this week of Solicitor General Elena Kagan, President Obama’s choice to replace retiring Justice John Paul Stevens, the Supreme Court announced a ruling on an issue Democrats would prefer to avoid; the constitutional right to keep and bear arms. In McDonald v. Chicago, the Supreme Court of the United States that the of the U.S. Constitution applies to the states, thereby undermining state and city gun prohibitions nationwide. Initial have suggested that this decision could render gun control a non-issue in electoral politics. History, however, suggests otherwise.
In 1973, the highest court in the U.S. judiciary reached a decision which still today impacts electoral politics. That case was Roe v. Wade. Even at this early stage, parallels are apparent between the Roe and McDonald decisions.
Both Roe and McDonald had companion cases asking related questions which have been (or will be in the latter instance) largely forgotten in the popular discourse. Like abortion rights, the right to keep and bear arms was gaining steady statutory support in the United States already at the time that the Supreme Court reached its decision. Also, both Roe and McDonald reached the U.S. Supreme Court on appeal from lower federal courts. Furthermore, the constitutional justifications offered in the Roe and McDonald cases for the majority position was less than some observers thought should be the case. Indeed, whether or not abortion should be legal remains a very distinct question from whether the reasons put forward by the Court for its decision legalizing abortion were .
In both majority opinions, recent court dictrines or approaches to legal evaluation were used so to avoid their application in broader contexts. For the decision reached in Roe v. Wade, the Supreme Court used a vastly different, privacy related case, Griswold v. Connecticut, in 1965. The problem posed by the reasoning offered for the decision reached in Roe v. Wade is that its constitutional foundation, already weak if based on Amendments four and nine, is rendered rather more dubious by being thoroughly within judicial precedent. The question posed in Griswold dealt with the right of married couples to use birth control, a clear matter of privacy, and one which is distinct from the termination of pregnancy as it dealt with efforts aimed at prevention. Even Cass Sunstein, a lawyer and liberal legal scholar in the employ of the Obama administration, has been of the view that the Roe decision was justified.
As Elena Kagan in the past has , the judicial appointment process has its curiosities. Potential appointees routinely dodge questions and distance themselves from past controversies. Both justices appointed by President Obama’s predecessor dodged questions pertaining to abortion rights, or stated that the matter is now “settled law.” As justices, however, John Roberts and Samuel Alito have ruled in of restricting abortion rights. Asked about the Court’s holding in McDonald v. Chicago, Justice-to-be Kagan declared that the individual right to keep and bear arms is “.”
In some respects, the decision reached by the U.S. Supreme Court in McDonald v. Chicago renders the controversial judicial doctrine of incorporation more credible and less arbitrary. What the effects will be long term are less than certain, however. To be brief, the doctrine of incorporation has been used by federal courts to hold the liberties guaranteed by the Bill of Rights against state governments citing as a legal basis the “due process” clause of the . Building on the reached in District of Columbia v. Heller, the majority opinion in McDonald v. Chicago assures that Second Amendment protections are fundamental rights of American citizens in good mental health or never found guilty of a felony offense.
In his concurring opinion, Justice Thomas offered a , more in line with originalist thought, for the decision reached by the majority. As with the majority, Thomas asserted that there is a clause of the Fourteenth Amendment which justifies applying the individual right to keep and bear arms against the states. Justice Thomas sought to apply the effectively nullified “priviledges and immunities” clause, reduced to nothingness in the nineteenth century by jurists to uphold limitations on the legal rights of African-Americans. While use of this clause by the majority in its decision would have been appropriate due to the racially-charged history of gun control laws in the United States, doing so would have opened up challenges to laws and policies having nothing at all to do with gun rights. Justice Scalia to such a possibility in his own concurrence addressing the contentions raised in John Paul Stevens’ last authored dissent.
I join the Court’s opinion. Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights “because it is both long established and narrowly limited.” Albright v. Oliver, (SCALIA, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.
On the basis of reasoning applied, and the concerted effort of the judiciary past and present to narrowly apply its rulings, it cannot be doubted that gun control will remain a contentious political issue for years if not decades to come. Already this week, Chicago began investigating ways of implementing short of outright prohibitions. Citing her record in the Clinton administration, the National Rifle Association is senators to vote against the conformation of Elena Kagan.
There can be no doubt that proponents of gun control will fundraise off of the McDonald v. Chicago decision. Needless to say, those dollars will flow into the coffers of candidates and causes inclined against private firearms ownership. Rather than render gun control a non-issue, the U.S. Supreme Court may have actually reignited a policy debate Democrats likely wanted to avoid in an election year as potentially as 2010.
Last 5 posts by James Kane
- A November to Remember - November 8th, 2010
- On hope and fear - October 18th, 2010
- Expecting Different Results - September 12th, 2010
- A glaring omission on Iraq - August 31st, 2010
- Employing a losing strategy - August 7th, 2010