The Supreme Court released several important opinions yesterday - among them, McDonald v. City of Chicago, extending the Second Amendment right to keep and bear arms to the states, and Hastings Christian Fellowship v. Martinez, continuing the left's war on Christianity.
In the prior landmark Second Amendment case, Heller, the Supreme Court held 5-4 that the Second Amendment provided an individual right to keep and bear arms, at least on land subject to direct federal control. Left unanswered was the question whether the Second Amendment also applied to the fifty states. That question was answered the other day in McDonald - yes.
The decision did not identify the precise contours of the Second Amendment right, such as, for example, whether concealed carry is part of the right, or to what extent the full faith and credit clause requires jurisdiction to honor gun permits issued in another state, etc. Nor did the decision adress directly to what degree the right can be regulated by government. For example, immediately after the McDonald decision was announced, Chicago's Mayor Daley announced his intention to place onerous restrictions on gun ownership within Chicago - a city where "homicide victims during the current year equaled the number of American soldiers killed during that same period in Afghanistan and Iraq."
The McDonald decision, authored by Justice Alito, was notable for several reasons beyond just the holding of the case. One, the decision was again 5 to 4, with Justice Stevens writing the dissent in which he argued for applying tests that would allow the activist wing to make of the Second Amendment a nullity. Justice Scalia responded to Justice Stevens in a separate concurrence. The arguments by Stevens and Scalia frame the battle ongoing between originalists and liberal activists. The McDonald decision was one largely based on the original intent of the drafters of the Second and Fourteenth Amendments. The Stevens dissent proposes alternative theories to undermine the Second Amendment that, as Scalia points out, are wholly subjective and, in reality, are nothing more than legal cover for the personal opinions of the activist judges.
Two, the McDonald opinion was notable for the concurring opinion of Justice Thomas. He would find the Second Amendment applicable to the states on the basis of the 14th Amendment's "privileges and immunities" clause - something of great interest to academics and likely as boring as a rock to everyone else. Were the Court were to revive the "privileges and immunities" clause of the 14th Amendment, something rendered a nullity since shortly after the Civil War, it would open a potential Pandora's box of litigation as the Court struggled to outline the contours of the clause. All that said, from a layman's point of view, most interesting about Thomas's concurrence is his painstaking recounting of the origins of state and local firearms restrictions. The regulations arose largely out of an effort by Democrats to control blacks in the post civil war period. One need only to look to Chicago's Mayor Daley - or most other liberal state and local leaders - to see that, at least in terms of ultimate goals of controlling the unwashed masses, nothing has changed.
While the McDonald decision represents a good decision reached on the basis of judicial interpretation rather than activism, the polar opposite is presented in Hastings Christian Fellowship v. Martinez. In that case, the activist wing of the Court held that a college may refuse to certify a Christian student group that limited admission to individuals willing to certify both to their belief in God and to their adherence to a sexually moral life - i.e., sex only within the confines of a marriage between a man and a woman. As Justice Alito points out in his dissent, the activist wing began by twisting the facts of the case and ignoring the issues that relate to freedom of association and freedom of religion. Indeed, the facts of this case were truly appalling:
As Hastings stated in its answer, the Nondiscrimination Policy “permitted political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.” App. 93. But the policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious message. Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming. An animal rights group was not obligated to accept students who supported the use of animals to test cosmetics. But CLS was required to admit avowed atheists. This was patent viewpoint discrimination. “By the very terms of the [Nondiscrimination Policy],the University . . . select[ed] for disfavored treatment those student [groups] with religious . . . viewpoints.”
And yet still, the liberal wing of the Court, through smoke, mirrors and very selective recitation of facts, was able to find this direct attack on Christianity to be constitutional. It is not a major decision, but just one more in a line of such decisions dating back to half a century ago when the activist Court began to strip religion from the public sector.
And on that note, let us hope and pray that none of the originalist members of the Court are forced from the bench between now and 2012. If so, we will soon become gunless as well as Godless.