CLU 09/08
by C. Paul Smith
The selection of Sarah Palin as the Republican Vice Presidential nominee has been a home run for Senator McCain and the Republicans. She is a true conservative. She wants to drill for oil in Alaska, where she is governor. Not only does she say she is pro-family, but she has a large family to prove it. Not only does she say she is pro-life, but she loves the Down syndrome baby that she bore at age 44, five months ago. She is attractive and articulate. She is proud of her small-town roots. She challenges the man-made global warming alarmists. She despises the politically correct, left wing mantras. She is one of us! She has done for the Republican Party what John McCain could not do—energized the conservative base. Both Senator McCain and Governor Sarah Palin are solidly for the Right to Life—and starkly opposed to the Democratic ticket’s pro-abortion stance. Sarah Palin’s nomination has catapulted the McCain/ Palin ticket ahead of Obama/Biden in the polls.
This is not good for Senators Obama and Biden. In fact it is bad for them. In fact they are desperate to stop the McCain/Palin Express before they get run over. This calls for an early deployment of the Democrats’ Ace Card—the Roe v. Wade Scare Ad Tactic! The Democrats had hoped to wait until later in the campaign to play this card, but the explosive success of Sarah Palin has precipitated the Democrats’ plunge in the polls, and has put them in panic mode. Tonight (September 5, 2008) on the way home from work, I heard on the radio three times a new ad from Senator Obama—an ad that attempts to counteract the Palin bounce; the ad warns the women of America that McCain will overturn Roe v. Wade, and that this will endanger the health of American women and deprive them of their cherished right to an abortion.
During the last 35 years no Supreme Court case has been more of a lightning rod for polarizing political debate than the Roe v. Wade decision of 1973. That case was controversial from the moment it was announced, and it has remained controversial ever since. Every time a president nominates a new Justice for the Supreme Court, the most important question for interrogation is whether or not that nominee would overturn Roe v. Wade. But, other than addressing the Roe v. Wade issue superficially, with 3-second, sound-bite answers, there has been very little in-depth discussion of this issue. Perhaps in this year’s campaign there will be an opportunity for a more meaningful discussion of Roe v. Wade than normally occurs. This discussion would be very good.
As one who has been a student of the Roe v. Wade ruling for over 30 years (including having written a book on the issue in 1977 [The Fetal Right to Life Argument]), let me share some important insights on this important issue.
1. Overturning Roe would not have to eliminate a woman’s right to privacy. If Roe v. Wade ever were overturned, there are several ways in which it could happen—none of which would require eliminating a woman’s right to privacy and of control over her own body. These alternatives would limit a woman’s right, but not extinguish it. To understand the ways Roe v. Wade could be overturned, you must first understand the three legal problems that were part of this ruling. Correcting any one of these problem areas could be overturning a part of Roe v. Wade.
2. There are three major flaws in the Roe v. Wade ruling. The Roe v. Wade opinion is rather complex. That ruling was one of the worst decisions of all time. It ranks right up there with Dred Scott v. Sandford. There are at least three distinct, serious flaws in Roe v. Wade.
First, the Supreme Court should have exercised judicial restraint and left the Texas legal matter in the hands of the Texas Supreme Court. The U. S. Supreme Court should not have taken the case; the regulation of abortion had been and should have continued to be a matter of state regulation and concern. But even after taking the case, the Court could have recognized a woman’s right to privacy without extinguishing the fetal right to life. But the Court’s over-reaching was uncalled for and grossly excessive.
Second, the Supreme Court went out of its way to state that a fetus is NOT a “person” within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. This gratuitous swipe at unborn children was totally uncalled for, unprovoked, illogical, barbaric and a repudiation of two hundred years of legal precedent in America. The eliminating of a fetal right to life was an act of outrageous over-reaching by the Judicial Branch of the government that encroached upon the Legislative Branch of the federal government (by usurping a power that should be only legislative and not judicial.) By what authority did the Supreme Court eliminate the fetal right to life in order to bestow on women a right to kill their unborn children without any consideration of the life of the unborn? The Court had no right. The Court usurped the authority of the states, the legislature and the people when it did this.
Third, the Supreme Court should not have legislated a resolution to the abortion debate. But they did. They constructed a complicated and contradictory legislative scheme to regulate abortions throughout the states: They came up with the trimester scheme where in the first trimester states could not prohibit abortions; in the second trimester states could regulate abortions, taking into consideration the health of the pregnant women; and in the last trimester states could protect potential human life. But the Court also stated that states could protect potential human life when the fetus becomes “viable.” As science and technology have advanced, this standard conflicts with the trimester scheme.
3. Roe v. Wade allowed States to prohibit partial-birth abortion. As terrible as was Roe v. Wade in 1973, today many interpret Roe to extend a woman’s right to an abortion to encompass the right to partial birth abortions. Partial birth abortion literally kills a viable fetus by crushing its skull and sucking its brains out. In 1973, Roe v. Wade specifically provided that states could outlaw this barbaric procedure. But since then, many have interpreted the right to an abortion to supersede the right of a state to prohibit abortions in the last trimester. This broadened interpretation of Roe is reprehensible and should be challenged.
4. A President can neither overturn a case nor amend the Constitution. Contrary to the assertion in the Obama ad, the President of the United States cannot overturn Roe v. Wade. That can happen only by the Supreme Court reversing itself or by passage of a constitutional amendment, the latter of which can only be done by the consensus of a supermajority, i.e., the approval of three-quarters of the states.
5. Part of Roe v. Wade is good—recognizing a woman’s right to privacy. The idea that every part of Roe v. Wade could be or would be overturned is ridiculous. Remember, Roe v. Wade is a very complex case. Up to this point, I don’t ever recall a serious political discussion about what part of Roe v. Wade one would or would not want to overturn. The woman’s right to privacy—the right to control her own body—that will never be over-turned. That part of Roe v. Wade is laudable. But it would be good for the law to acknowledge the existence of a fetal right to continue living that would have to be weighed against a woman’s right to control her body. Extinguishing the fetal right to life was the most opprobrious part of Roe v. Wade. It should be restored, and such a restoration would mean that the right to an abortion would not be an absolute—it would have to be weighed against the fetal right to life. In summary, if Roe v. Wade ever were to be “over-turned,” it would only be one or two aspects of that ruling that would be changed. Possible changes could include: (a) returning the abortion issue to the states; (b) restoring the fetal right to life; and (c) correcting the ruling that a fetus is not a “person.”
The discussion about what parts of Roe v. Wade should be overturned and which should remain would be an important discussion. I welcome it. Parts of Roe v. Wade should be overturned. But those who cling to abortion as the sacrament of their political religion—they don’t want the discussion. They do want to turn the debate into a health issue—but it is not.
There are multiple types of support for the “right to life.” But not all “right to lifers” have the same beliefs and principles about whether abortions are ever justified, and about what conditions might justify an abortion. In the rare instances where abortion would preserve a mother’s life, it would be acceptable. It may be proper in the case of certain severely deformed babies. And it may be allowable in cases of rape or incest—because in those cases a pregnancy was forced upon a woman against her will. Recognizing and addressing these various competing rights would not be easy or convenient. Extinguishing a fetal right to life does simplify the administration of the law—but that law is cruel, oppressive and barbaric. Correcting this serious flaw would require overturning part of Roe v. Wade. But that’s okay—it would be an improvement.
It appears that the McCain/Palin ticket supports changing our law to give the unborn greater protection than is currently afforded under Roe v. Wade. This would be good. But it need not prohibit ALL abortions. I heard that McCain was once quoted as having stated such a position, but I do not support that absolutist position, and I do not believe it would ever become law.
The taking of human life is a serious matter. Protecting those who are most helpless and vulnerable is critically important. If the Democrats want to debate whether or not Roe v. Wade should be overturned—I welcome the debate.
Saturday, October 11, 2008
Supreme Court Holds the Right to Bear Arms Is an Individual Right
District of Columbia v. Heller, 554 U.S. _____ (2008)
by C. Paul Smith
On June 26, 2008, the Supreme Court issued its ruling in the case of District of Columbia v. Heller, 554 U. S. ______ (2008), holding unconstitutional the District of Columbia law which prohibited the possession of usable handguns in the home. In this 5-4 ruling, the Court held that the right to bear arms in the Second Amendment was an individual right, and not merely the right of a governmental militia.
The question of whether the right to bear arms belonged to the individual or to the militia has been a subject of debate for decades. The only question was which side the Supreme Court would take on the issue. In my opinion, the Supreme Court got it right. But I am concerned and disturbed that vote was so close (5-4). With the Supreme Court’s recent penchant to ignore the principles of stare decisis. I personally have concerns about the permanency of this ruling. Nevertheless, as it now stands, this is a good and important ruling.
D.C. law made it a crime to carry an unregistered firearm, and the registration of handguns was prohibited. Dick Heller sued to enjoin the District of Columbia from enforcing this law, contending that the law violated the Second Amendment of the Constitution. That amendment reads: “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.”
If the Amendment means what it says, then there should be no question that the right spoken of, the right to bear arms, belongs to the “people,” and not to the “militia.” However, this plain reading of the Amendment was challenged by the District of Columbia and by four of the Justices (Stevens, Souter, Ginsberg and Breyer). They argued (1) that the prefatory clause changed the meaning of the operative clause in the Amendment, and (2) that the handgun ban was a reasonable limitation on the right to bear arms that did not violate the general spirit of the Amendment. But the majority rejected both of these assertions.
I. The Majority Opinion
Justice Scalia, who wrote for the majority, pointed out that a prefatory clause (such as “A well regulated Militia, being necessary to the security of a free State”) does not normally modify the operative clause that follows (“the right of the people to keep and bear Arms, shall not be infringed”)—but rather gives one reason as to why the operative clause may be necessary. Justice Scalia said that the normal reading of the two clauses was appropriate here. In fact, he pointed out, the operative clause specifically states that the right belongs to the “people.” The right, therefore, is an individual right of the people.
Justice Scalia further pointed out that the very nature of the militia in the early days of our nation, was that it was comprised of individuals in the community who bore arms. It would have been illogical and contradictory for the Amend-ment to state that the people did not individually possess the right to bear arms. Additionally, he pointed out that if the intent of the amendment was to limit its meaning to only be a right if the militia should need a person’s participation, then there would have been no purpose for the operative clause. Justice Scalia points out that historically the amendment was widely under-stood to recognize an “individual” right, and he found no evidence to the contrary. Finally, Justice Scalia pointed out that the Second Amendment did not create a right, but rather only recognized a right that already existed, and prohibited the government from infringing upon it.2
In concluding his opinion, Justice Scalia wrote these words: “[W]e hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense” (p. 64).
Reading Justice Scalia’s majority opinion was somewhat fascinating, because he painstakingly dissected every word and phrase in the short, Second Amendment to show that his interpretation was correct. It is interesting to see how the Court’s three opinions took 154 pages to dissect and analyze the 27-word, one-sentence amendment. And it is disconcerting to see how so many points in Justice Scalia’s opinion were disputed and contested by the two dissenting opinions. The dissenters impressed me as being strained and illogical and as denying important historical facts pertaining to the original purpose and meaning of the right to bear arms, as memorialized in the Second Amendment.
It is my judgment that the Heller case will be one of the most important cases in this nation for the next twenty years. I think it will be important to have some in-depth understanding of the case. I will now provide some analysis of and commentary on the dissenting opinions.
II. The Dissenting Opinions
A. Justice Stevens’ Dissent. To start with, consider what the four Liberal Justices stated as their fundamental opinion. They said this: “Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution” (p. 2). It is chilling to me to think that four of the current Justices of the Supreme Court hold this opinion.
The heart of Heller is whether the right to bear arms is an individual right OR whether it is merely a privilege to participate in a militia at the pleasure of the state. The Court (the majority) held it to be an individual right. After all, the Second Amendment says it is a “right.” But the dissenters said that the Amendment does not mean that. The two dissents (by Justices Stevens and Breyer) go on to employ their considerable intellectual and legal skills to argue that the Second Amendment does not mean what it says. They say that because the “right to bear arms” is connected to the need for a militia, that therefore this cannot be an individual right. (Justice Stevens says it is a “right” and a “duty” [p. 16].) But the end result of Justice Stevens’ opinion is that absent a militia there really is no “right.” This leaves nothing but an obsolete “duty” in the Second Amendment. The dissenting Justices never do answer the question of why our Founders called it a “right” if it really isn’t a “right.” Somehow they confuse “duty” with “right”—that is they say that the Second Amendment says that because militias are so important, therefore citizens can have certain arms, but only for use in the militia. This is a ridiculous interpretation. That’s not what the Founders meant, and that is not what the Founders wrote. Even if militias are obsolete, the Amendment continues to have a meaning in that if individuals should not have operable arms for their self defense, then it would be impossible to have militias.
Justice Stevens at one point did acknowl-edge the point that the Second Amendment did not create the right to bear arms (Stevens, J., Dissent, pp. 17 & 38), but he did not seem to appreciate what he acknowledged. Let me briefly explain what Justice Stevens seemed to miss: The technical wording of the Second Amendment does not create any right, but rather it states that the government shall not “infringe” on “the right of the people to keep and bear arms.”
If you know much about James Madison (who drafted the Second Amendment), you know that he felt there was no need for a bill of rights because these rights already existed, and that there was no need to make a partial list of existing rights. In fact, he felt this could have undesirable consequences, if the partial listing of rights were used to later deny that some rights did not exist because they were not enumerated. (The Ninth Amendment was included to avoid this problem.) But, returning to the Second Amendment, Madison’s language again does not create any new right, but rather only restricts the government from infringing upon an existing right.
Well, having said this, what if the minority was right, and the Second Amendment only pertains to bearing arms as may be needed in the militia. If so, then, there is yet an individual right to bear arms that is not referenced in the Second Amendment. The Court never really discusses this issue because (a) the Liberal Justices don’t want to consider those implications; and (b) the majority interpret the Second Amendment to cover the right of individuals to defend themselves with guns, and therefore there was no need to go there.
1. “A Well Regulated Militia . . . .” Justice Stevens spends virtually all of his dissenting opinion to attempt to prove that whatever “right” is mentioned in the Second Amendment is entirely contingent upon and subject to the government’s use of militias. Justice Stevens made numerous strained arguments in his effort. Here are a few of them.
a. He argues that “bear arms” has reference only to using arms in the military (pp. 11 & 14). However, even some of the citations he includes in his opinion refute this unreasonable interpretation.
b. He says that because the Amendment did not include the words “a personal right to use arms in self defense” that therefore the Amendment could not have included such a meaning. This is a ridiculous argument. This is precisely the type of reasoning that James Madison was concerned about—that some would deny the existence of rights because a right may not have been specifically articulated. And while we’re on the issue—the failure to mention something does not mean that that thing does not exist. Yet that is the very argument that Justice Stevens makes. To have added the words “for self defense” would have been superfluous. The wording that was used plainly implies the use of arms for self-defense—otherwise the references to participation in militia actions would have made no sense.
c. Justice Stevens argues that the words “the people” could not possibly mean in the Second Amendment what it means in First and Fourth Amendments. He asserts that in the First and Fourth Amendments the people means all people, but that “the people” referenced in the Second Amendment is subject to considerable limitation. (For example felons and insane people can be barred from possessing arms.) Therefore, Justice Stevens makes the argument that the Second Amendment could not possibly confer a right on all “the people.” Frankly, this is pathetic reasoning.
2. Does the prefatory clause restrict the meaning of the operative clause? We now get to the main argument—does the prefatory clause (or preamble) restrict the meaning of the operative clause that follows? The obvious answer is “not necessarily.” Yet the four Liberal Justices insisted that the prefatory clause limits the operative clause (p. 8). This is blatantly false. Yet, not only do they refuse to acknowledge the error of their thinking, but they accuse the majority of being illogical.
3. The Miller case. Finally, let’s look at the case of United States v. Miller, 307 U.S. 174 (1939), where the Supreme Court addressed the issue of whether a person had a Second Amendment right to possess a sawed-off shotgun. In this cased the Supreme Court upheld a statute that outlawed the possession of a sawed-off shotgun (less than 18” in length). This case established that the right to bear arms is not absolute, and that some weapons can be prohibited. The Supreme Court in Miller stated that there was no evidence that a sawed-off shotgun would have any use in a militia, and therefore the law banning them was upheld.
The dissenting Justices in Heller argue that the Miller case establishes that the prefatory clause does indeed control all the rest of the Amendment, and that whatever “right” does exist is subject to the government’s power to regulate a militia. The majority, however, did not read Miller that way; they acknowledge that not all “arms” are covered by the amendment (machine guns, bazookas and hand grenades could also be prohibited), but the majority did not find anything in Miller that infringed upon the fundamental meaning of the Second Amendment to include an individual’s right to bear arms to protect one’s hearth and home.
B. Justice Breyer’s Dissent. Justice Breyer also wrote a dissent, but his dissent is of lesser importance in my view. He argues that even if the Second Amendment included a personal right to use arms in self-defense, that the government could still impose reasonable limitations and regulations for the safety of society. He then concluded, that the District of Columbia did in fact have a reasonable basis to prohibit the use of handguns. (All four Liberal Justices joined in Justice Breyer’s dissent as well as in that of Justice Stevens.)
C. Stare Decisis. Although the liberal Justices all but abandoned stare decisis in reaching their opinion in 2003 in Lawrence v. Texas,3 they nevertheless accuse the majority in Heller of doing just what they have been doing—lightly throwing aside Court precedents without adequate justification. This accusation by senior Liberal Justice Stevens (p. 4 of his Dissent), would be valid only if the majority interpreted the Second Amendment as he does. But they do not, and his criticism that the majority has not been faithful to stare decisis is without merit. But what makes this accusation by Stevens infuriating is that fact that Stevens and the other three liberals are the ones who have blatantly discarded stare decisis in Lawrence v. Texas and in McConnell v. FEC (campaign finance reform case).4
D. Judicial Activism. The same can be said for judicial activism. Justice Stevens concludes his 46-page dissent by accusing the majority of failing to exercise “judicial restraint.” This criticism is baseless—it is the liberal four who are attempting to legislate from the bench in Heller, just as they did in Boumediene, Lawrence and McConnell. And it is irritating to see them give lip service to the principal of judicial restraint all the while they themselves routinely ignore the principle because it regularly gets in the way of their philosophical agendas.
III. Summary
The Heller case is a critical case for Americans to understand because it high-lights the internal philosophical battle that is going on both in the Supreme Court and throughout the nation. On the most obvious level, this case is about whether individual Americans have the right to possess arms to defend themselves in their homes. But on a deeper level, it is also about whether individual rights are to be superseded by governmental control. And on this deeper level, the issue is whether we the people will turn our individual rights over to the government, and whether it is us or the government who know and decide what is best for us. As for me, I neither want nor need the government to take over my life.
This is part of the battle between socialism and free enterprise. Free enterprise entails risks and it rewards hard work and initiative, while it leaves unrewarded the passive, the indolent and the slothful. Socialism fails because its fail-safe approach guarantees everybody a certain quality of life without exacting a corresponding requirement to work—which system effectively stifles initiative and hard work. The free enterprise system (including capitalism) succeeds because it rewards initiative and hard work—which in turn promotes these same qualities in others.
The Heller decision is a part of this important societal debate—Who is to be empowered, the individual or the government? The answer is, in the words of Laura Ingram—Power to the People! And this means that it is best for the people to continue to have the right to bear arms. The Supreme Court got it right in Heller, despite the strong protestation from the liberals on the Court.
The Court’s ruling in D. C. v. Heller should have been a no-brainer for all nine Justices. It is disconcerting and worrisome that four of the Justices could dispense with logic and history in order to promote a reading of the Constitution that comports only with their political agenda. With regard to this, Justice Scalia concludes his opinion by stating: “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct” (p. 64).
In this era, where militias are obsolete, does that mean that the Second Amendment is also obsolete. According to the liberal Justices—Yes. But they will not overtly state this; rather they attempt to void the Amendment of any meaning and leave it a meaningless collection of words.
See D. C. Code Sec. 7-2501.01(12), 7-2502.01(a), and 7-2502.02(a)(4) (2001). Another section of the D.C. Code provides that no person may carry a handgun without a license, and that the chief of police may issue licenses for one-year periods. D. C. Code Sec. 22-4504(a) and 22-4506. Finally, the D. C. Code requires that any firearms located in a home be “unloaded and disassembled or bound by a trigger lock or similar device. D. C. Code Sec. 7-2507.02. (These references are taken from page 1 of the Court’s majority opinion.)
2 It should be noted that in 1791 handguns were rare, and that the guns that were prevalent required a timely insertion of gun powder before they could be fired. Today’s handgun was not common place in that era.
3 539 U.S. 558 (2003). In this case the Supreme Court overturned the case of Bowers v. Hardwick, 478 U.S. 186 (1986) (which it had only decided 17 years earlier), and for the first time recognized a Fifth Amendment “liberty” to engage in private, consensual homosexual conduct.
4 540 U.S. 93 (2003).
by C. Paul Smith
On June 26, 2008, the Supreme Court issued its ruling in the case of District of Columbia v. Heller, 554 U. S. ______ (2008), holding unconstitutional the District of Columbia law which prohibited the possession of usable handguns in the home. In this 5-4 ruling, the Court held that the right to bear arms in the Second Amendment was an individual right, and not merely the right of a governmental militia.
The question of whether the right to bear arms belonged to the individual or to the militia has been a subject of debate for decades. The only question was which side the Supreme Court would take on the issue. In my opinion, the Supreme Court got it right. But I am concerned and disturbed that vote was so close (5-4). With the Supreme Court’s recent penchant to ignore the principles of stare decisis. I personally have concerns about the permanency of this ruling. Nevertheless, as it now stands, this is a good and important ruling.
D.C. law made it a crime to carry an unregistered firearm, and the registration of handguns was prohibited. Dick Heller sued to enjoin the District of Columbia from enforcing this law, contending that the law violated the Second Amendment of the Constitution. That amendment reads: “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.”
If the Amendment means what it says, then there should be no question that the right spoken of, the right to bear arms, belongs to the “people,” and not to the “militia.” However, this plain reading of the Amendment was challenged by the District of Columbia and by four of the Justices (Stevens, Souter, Ginsberg and Breyer). They argued (1) that the prefatory clause changed the meaning of the operative clause in the Amendment, and (2) that the handgun ban was a reasonable limitation on the right to bear arms that did not violate the general spirit of the Amendment. But the majority rejected both of these assertions.
I. The Majority Opinion
Justice Scalia, who wrote for the majority, pointed out that a prefatory clause (such as “A well regulated Militia, being necessary to the security of a free State”) does not normally modify the operative clause that follows (“the right of the people to keep and bear Arms, shall not be infringed”)—but rather gives one reason as to why the operative clause may be necessary. Justice Scalia said that the normal reading of the two clauses was appropriate here. In fact, he pointed out, the operative clause specifically states that the right belongs to the “people.” The right, therefore, is an individual right of the people.
Justice Scalia further pointed out that the very nature of the militia in the early days of our nation, was that it was comprised of individuals in the community who bore arms. It would have been illogical and contradictory for the Amend-ment to state that the people did not individually possess the right to bear arms. Additionally, he pointed out that if the intent of the amendment was to limit its meaning to only be a right if the militia should need a person’s participation, then there would have been no purpose for the operative clause. Justice Scalia points out that historically the amendment was widely under-stood to recognize an “individual” right, and he found no evidence to the contrary. Finally, Justice Scalia pointed out that the Second Amendment did not create a right, but rather only recognized a right that already existed, and prohibited the government from infringing upon it.2
In concluding his opinion, Justice Scalia wrote these words: “[W]e hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense” (p. 64).
Reading Justice Scalia’s majority opinion was somewhat fascinating, because he painstakingly dissected every word and phrase in the short, Second Amendment to show that his interpretation was correct. It is interesting to see how the Court’s three opinions took 154 pages to dissect and analyze the 27-word, one-sentence amendment. And it is disconcerting to see how so many points in Justice Scalia’s opinion were disputed and contested by the two dissenting opinions. The dissenters impressed me as being strained and illogical and as denying important historical facts pertaining to the original purpose and meaning of the right to bear arms, as memorialized in the Second Amendment.
It is my judgment that the Heller case will be one of the most important cases in this nation for the next twenty years. I think it will be important to have some in-depth understanding of the case. I will now provide some analysis of and commentary on the dissenting opinions.
II. The Dissenting Opinions
A. Justice Stevens’ Dissent. To start with, consider what the four Liberal Justices stated as their fundamental opinion. They said this: “Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution” (p. 2). It is chilling to me to think that four of the current Justices of the Supreme Court hold this opinion.
The heart of Heller is whether the right to bear arms is an individual right OR whether it is merely a privilege to participate in a militia at the pleasure of the state. The Court (the majority) held it to be an individual right. After all, the Second Amendment says it is a “right.” But the dissenters said that the Amendment does not mean that. The two dissents (by Justices Stevens and Breyer) go on to employ their considerable intellectual and legal skills to argue that the Second Amendment does not mean what it says. They say that because the “right to bear arms” is connected to the need for a militia, that therefore this cannot be an individual right. (Justice Stevens says it is a “right” and a “duty” [p. 16].) But the end result of Justice Stevens’ opinion is that absent a militia there really is no “right.” This leaves nothing but an obsolete “duty” in the Second Amendment. The dissenting Justices never do answer the question of why our Founders called it a “right” if it really isn’t a “right.” Somehow they confuse “duty” with “right”—that is they say that the Second Amendment says that because militias are so important, therefore citizens can have certain arms, but only for use in the militia. This is a ridiculous interpretation. That’s not what the Founders meant, and that is not what the Founders wrote. Even if militias are obsolete, the Amendment continues to have a meaning in that if individuals should not have operable arms for their self defense, then it would be impossible to have militias.
Justice Stevens at one point did acknowl-edge the point that the Second Amendment did not create the right to bear arms (Stevens, J., Dissent, pp. 17 & 38), but he did not seem to appreciate what he acknowledged. Let me briefly explain what Justice Stevens seemed to miss: The technical wording of the Second Amendment does not create any right, but rather it states that the government shall not “infringe” on “the right of the people to keep and bear arms.”
If you know much about James Madison (who drafted the Second Amendment), you know that he felt there was no need for a bill of rights because these rights already existed, and that there was no need to make a partial list of existing rights. In fact, he felt this could have undesirable consequences, if the partial listing of rights were used to later deny that some rights did not exist because they were not enumerated. (The Ninth Amendment was included to avoid this problem.) But, returning to the Second Amendment, Madison’s language again does not create any new right, but rather only restricts the government from infringing upon an existing right.
Well, having said this, what if the minority was right, and the Second Amendment only pertains to bearing arms as may be needed in the militia. If so, then, there is yet an individual right to bear arms that is not referenced in the Second Amendment. The Court never really discusses this issue because (a) the Liberal Justices don’t want to consider those implications; and (b) the majority interpret the Second Amendment to cover the right of individuals to defend themselves with guns, and therefore there was no need to go there.
1. “A Well Regulated Militia . . . .” Justice Stevens spends virtually all of his dissenting opinion to attempt to prove that whatever “right” is mentioned in the Second Amendment is entirely contingent upon and subject to the government’s use of militias. Justice Stevens made numerous strained arguments in his effort. Here are a few of them.
a. He argues that “bear arms” has reference only to using arms in the military (pp. 11 & 14). However, even some of the citations he includes in his opinion refute this unreasonable interpretation.
b. He says that because the Amendment did not include the words “a personal right to use arms in self defense” that therefore the Amendment could not have included such a meaning. This is a ridiculous argument. This is precisely the type of reasoning that James Madison was concerned about—that some would deny the existence of rights because a right may not have been specifically articulated. And while we’re on the issue—the failure to mention something does not mean that that thing does not exist. Yet that is the very argument that Justice Stevens makes. To have added the words “for self defense” would have been superfluous. The wording that was used plainly implies the use of arms for self-defense—otherwise the references to participation in militia actions would have made no sense.
c. Justice Stevens argues that the words “the people” could not possibly mean in the Second Amendment what it means in First and Fourth Amendments. He asserts that in the First and Fourth Amendments the people means all people, but that “the people” referenced in the Second Amendment is subject to considerable limitation. (For example felons and insane people can be barred from possessing arms.) Therefore, Justice Stevens makes the argument that the Second Amendment could not possibly confer a right on all “the people.” Frankly, this is pathetic reasoning.
2. Does the prefatory clause restrict the meaning of the operative clause? We now get to the main argument—does the prefatory clause (or preamble) restrict the meaning of the operative clause that follows? The obvious answer is “not necessarily.” Yet the four Liberal Justices insisted that the prefatory clause limits the operative clause (p. 8). This is blatantly false. Yet, not only do they refuse to acknowledge the error of their thinking, but they accuse the majority of being illogical.
3. The Miller case. Finally, let’s look at the case of United States v. Miller, 307 U.S. 174 (1939), where the Supreme Court addressed the issue of whether a person had a Second Amendment right to possess a sawed-off shotgun. In this cased the Supreme Court upheld a statute that outlawed the possession of a sawed-off shotgun (less than 18” in length). This case established that the right to bear arms is not absolute, and that some weapons can be prohibited. The Supreme Court in Miller stated that there was no evidence that a sawed-off shotgun would have any use in a militia, and therefore the law banning them was upheld.
The dissenting Justices in Heller argue that the Miller case establishes that the prefatory clause does indeed control all the rest of the Amendment, and that whatever “right” does exist is subject to the government’s power to regulate a militia. The majority, however, did not read Miller that way; they acknowledge that not all “arms” are covered by the amendment (machine guns, bazookas and hand grenades could also be prohibited), but the majority did not find anything in Miller that infringed upon the fundamental meaning of the Second Amendment to include an individual’s right to bear arms to protect one’s hearth and home.
B. Justice Breyer’s Dissent. Justice Breyer also wrote a dissent, but his dissent is of lesser importance in my view. He argues that even if the Second Amendment included a personal right to use arms in self-defense, that the government could still impose reasonable limitations and regulations for the safety of society. He then concluded, that the District of Columbia did in fact have a reasonable basis to prohibit the use of handguns. (All four Liberal Justices joined in Justice Breyer’s dissent as well as in that of Justice Stevens.)
C. Stare Decisis. Although the liberal Justices all but abandoned stare decisis in reaching their opinion in 2003 in Lawrence v. Texas,3 they nevertheless accuse the majority in Heller of doing just what they have been doing—lightly throwing aside Court precedents without adequate justification. This accusation by senior Liberal Justice Stevens (p. 4 of his Dissent), would be valid only if the majority interpreted the Second Amendment as he does. But they do not, and his criticism that the majority has not been faithful to stare decisis is without merit. But what makes this accusation by Stevens infuriating is that fact that Stevens and the other three liberals are the ones who have blatantly discarded stare decisis in Lawrence v. Texas and in McConnell v. FEC (campaign finance reform case).4
D. Judicial Activism. The same can be said for judicial activism. Justice Stevens concludes his 46-page dissent by accusing the majority of failing to exercise “judicial restraint.” This criticism is baseless—it is the liberal four who are attempting to legislate from the bench in Heller, just as they did in Boumediene, Lawrence and McConnell. And it is irritating to see them give lip service to the principal of judicial restraint all the while they themselves routinely ignore the principle because it regularly gets in the way of their philosophical agendas.
III. Summary
The Heller case is a critical case for Americans to understand because it high-lights the internal philosophical battle that is going on both in the Supreme Court and throughout the nation. On the most obvious level, this case is about whether individual Americans have the right to possess arms to defend themselves in their homes. But on a deeper level, it is also about whether individual rights are to be superseded by governmental control. And on this deeper level, the issue is whether we the people will turn our individual rights over to the government, and whether it is us or the government who know and decide what is best for us. As for me, I neither want nor need the government to take over my life.
This is part of the battle between socialism and free enterprise. Free enterprise entails risks and it rewards hard work and initiative, while it leaves unrewarded the passive, the indolent and the slothful. Socialism fails because its fail-safe approach guarantees everybody a certain quality of life without exacting a corresponding requirement to work—which system effectively stifles initiative and hard work. The free enterprise system (including capitalism) succeeds because it rewards initiative and hard work—which in turn promotes these same qualities in others.
The Heller decision is a part of this important societal debate—Who is to be empowered, the individual or the government? The answer is, in the words of Laura Ingram—Power to the People! And this means that it is best for the people to continue to have the right to bear arms. The Supreme Court got it right in Heller, despite the strong protestation from the liberals on the Court.
The Court’s ruling in D. C. v. Heller should have been a no-brainer for all nine Justices. It is disconcerting and worrisome that four of the Justices could dispense with logic and history in order to promote a reading of the Constitution that comports only with their political agenda. With regard to this, Justice Scalia concludes his opinion by stating: “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct” (p. 64).
In this era, where militias are obsolete, does that mean that the Second Amendment is also obsolete. According to the liberal Justices—Yes. But they will not overtly state this; rather they attempt to void the Amendment of any meaning and leave it a meaningless collection of words.
See D. C. Code Sec. 7-2501.01(12), 7-2502.01(a), and 7-2502.02(a)(4) (2001). Another section of the D.C. Code provides that no person may carry a handgun without a license, and that the chief of police may issue licenses for one-year periods. D. C. Code Sec. 22-4504(a) and 22-4506. Finally, the D. C. Code requires that any firearms located in a home be “unloaded and disassembled or bound by a trigger lock or similar device. D. C. Code Sec. 7-2507.02. (These references are taken from page 1 of the Court’s majority opinion.)
2 It should be noted that in 1791 handguns were rare, and that the guns that were prevalent required a timely insertion of gun powder before they could be fired. Today’s handgun was not common place in that era.
3 539 U.S. 558 (2003). In this case the Supreme Court overturned the case of Bowers v. Hardwick, 478 U.S. 186 (1986) (which it had only decided 17 years earlier), and for the first time recognized a Fifth Amendment “liberty” to engage in private, consensual homosexual conduct.
4 540 U.S. 93 (2003).
Supreme Court Confers Habeas Corpus Rights on Alien Enemy Combatants
Boumediene v. Bush, 553 U.S. (2008)
by C. Paul Smith
On June l2, 2008, the Supreme Court ruled that alien enemy combatants1 detained abroad by our military forces in the course of an on-going war have a constitutional right to habeas corpus relief. Never before has the Constitution given this right to aliens abroad.
This (5-4) ruling is very important and will have far-reaching impact for years to come. Democrat Presidential candidate Barack Obama praised the ruling, while Republican Presidential candidate John McCain sharply criticized it.
On some levels, the ruling was relatively simple—the Court wanted to extend additional rights to foreign enemy combatant detainees. But on close examination, there were several complex issues involved. While few people will read the decision, this will not deter them from offering their opinions on the merits or flaws of the ruling. I encourage all citizens to read it and to get a thorough understanding of what the Court did in this case. This case is one of the most egregious examples you will find of judicial activism, lack of judicial restraint, and judicial pre-emption of foreign policy power and national defense power from the Executive and Legislative branches of the government. The implications of this decision are extensive and profound.
It is difficult to distill in a few words a concise summary of what happened in this case. The Majority opinion (authored by Justice Anthony Kennedy) took 70 pages. The dissent of Chief Justice John Roberts took 28 pages, and the dissent of Justice
Antonin Scalia took 25. When you add in Justice Souter’s 3-page concurring opinion—the total pages reach 126. But the reading of this opinion is a must for all patriots.
By the time you get to page 70 in Justice Kennedy’s majority opinion, you may be mesmerized or persuaded by his reasoning. The majority feels the pain of the enemy combatants at Guantanamo Bay, who for six years (some of them) have remained detained after they were captured in foreign lands fighting against our troops. To some, the length of this detention is intolerable. To some, the criticism that some international peoples level at the U.S. for maintaining the Guantanamo detention facility is more than they can stand. Five of the Supreme Court Justices appear to be in this group. Their impatience and disapproval of the nation’s operations in Guantanamo Bay has led them to hastily and abruptly take actions that have undermined over 200 years of constitutional precedence to attempt to appease enemies of America who will never be appeased because their hatred for America is unreasonable and intractable.
I. Background
Previous to the Boumediene ruling, alien enemy combatants had no rights to habeas corpus protection in U.S. courts if they were confined abroad in places where the U. S. was not sovereign. The case of Johnson v. Eisentrager, 339 U.S. 763, (1950) specifically held this. (See, e.g., Scalia, J., dissenting, p. 10.) The Bush administration properly relied on this precedent, as it detained captive, alien enemy combatants at Guantanamo Bay. But this year’s ruling in Boumediene abandoned stare decisis and overturned Eisentrager (1950) and effectively overturned Hamdi v. Rumsfeld, 542 U.S. 507 (2004) for no compelling reasons. A close examination of the Boumediene ruling will show that it will not give these enemy combatants any significant additional rights, and that the Boumediene holding will serve only as a rebuke of the Bush administration by the Court, when the Bush administration had in good faith relied on Supreme Court precedents. Consequently, all that this case accomplished is to diminish the power of the Executive Branch and to enlarge the power of the Judicial Branch.
II. Problems with Boumediene
Here is a list of some of the major problems in Boumediene v. Bush:
l. The Supreme Court, for the first time, confers on non-citizen, alien enemy combatants the right to seek and obtain the protections of a writ of habeas corpus in U. S. Courts.
2. This ruling by the Supreme Court effectively overturns the 1950 case of Johnson v. Eisentrager, 339 U.S. 763. Until now, there was no question but that alien enemy combatants at the Guantanamo Bay facility would not have the right to access to
U. S. courts through the filing of writs of habeas corpus. But the majority decided to interpret Eisentrager differently—they said that since the U.S. has effective control over Guantanamo Bay, that therefore the habeas writ should be made available. The Majority denies that they overturned Eisentrager, but they offered only obfuscation and linguistic contortions rather than sound reasoning in support of their conclusion. The majority’s effort to reconcile its ruling in Boumediene with its ruling in Eisentrager is a total failure—and will convince only those whose analysis processes do not insist upon facts and sound reasoning.
3. This ruling by the Supreme Court also effectively overturns major parts of the recent, 2004, case of Hamdi v. Rumsfeld, in which case the Supreme Court recommended the precise procedures and practices that Congress and the President then enacted to ensure that the detention of alien enemy combatants satisfies all constitutional requirements. In that regard, Chief Justice Roberts wrote this:
The plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.
The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon potential to burden the Executive at a time of ongoing military conflict.” Id., at 533, 538. This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.
If the CSRT 2 procedures meet the minimal due process requirements outlined in Hamdi, and if an Article III court is available to ensure that these procedures are followed in future cases, . . . there is no need to reach the Suspension Clause question. Detainees will have received all the process the constitution could possibly require, whether that process is called “habeas” or something else. The question of the writ’s reach need not be addressed. (Roberts, C. J., dissenting, pp. 4-5.)
4. In this case the Supreme Court specifically holds unconstitutional portions of the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA), which acts were specifically passed by Congress and signed by the President to comply with the requirements that the Supreme Court articulated in Hamdi.
5. The Majority in Boumediene erroneously concluded that Combatant Status Review Tribunals (CSRTs) do not have the authority to release detainees if their deten-tion is not warranted. The majority’s view on this issue is patently absurd. The authority to release one who is not properly detained is clearly implicit in the law’s language, and some detainees had been released. The majority’s reasoning here is pathetic. 3
6. The action by the majority in Boumediene is wholly inconsistent with the Court’s precedents, and amounts to a repudiation of the Court’s doctrine of stare decisis, which the Court used to honor in attempting to be consistent with its prior rulings.
7. The Court in Boumediene ruled that because the CSRT procedures provide that "newly discovered evidence" may be presented only by a new proceeding, and not during an appeal, that therefore such CSRT procedures violate the constitutional rights of the alien enemy combatants. This is a distinction without a difference—it is an inconsequential matter that does not affect any substantive right. The majority was straining to find fault with this technicality.
III. Justice Scalia’s Comment
Here is what Justice Scalia said about the Boumediene ruling:
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus .... It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. [Scalia, J., at 25.]
IV. Chief Justice Roberts’ Conclusion
Chief Justice Roberts concluded this about Boumediene:
For all its eloquence about the detainees’ right to the writ, the Court makes no effort to elaborate how exactly the remedy it prescribes will differ from the procedural protections detainees enjoy under the DTA. [Roberts, CJ, at 25.]
The majority instead compares the undefined DTA process to an equally undefined habeas right—one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided .... All that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary. [Roberts, CJ , at 2-3.]
Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of` federal policy regarding enemy combatants?
--Roberts, C.J., at 1-2
American Citizens Have Right to Habeas Corpus Relief When Detained Abroad
On June 12, 2008, a unanimous Supreme Court ruled in Munaf v. Geren, 554 U.S. ___ (2008) that American citizens detained outside the United States and charged with war offenses against the U.S. have the right to seek and obtain habeas corpus review of their detention.
Although the Court was sharply divided (5-4) in its ruling in Boudiemene that alien enemy combatants had a right to habeas corpus review of their detention, in Munaf the Court was unanimous in holding that American citizens have the right to habeas corpus review no matter where they may be detained.
1 It is important to understand the definition of an “enemy combatant.” This is to be distinguished from a prisoner of war, in the uniform of its country. An enemy combatant is one who is not dressed in the military uniform of its country, but who for all appearances is a civilian, and who nevertheless fights against our troops. In other words, an enemy combatant is like a spy or a terrorist who may by subterfuge and stealth infiltrate our ranks to wreck havoc through covert means.
2 Combatant Status Review Tribunals
3 It should be pointed out that some of the detainees that were released later returned to the battle field to kill American troops.
by C. Paul Smith
On June l2, 2008, the Supreme Court ruled that alien enemy combatants1 detained abroad by our military forces in the course of an on-going war have a constitutional right to habeas corpus relief. Never before has the Constitution given this right to aliens abroad.
This (5-4) ruling is very important and will have far-reaching impact for years to come. Democrat Presidential candidate Barack Obama praised the ruling, while Republican Presidential candidate John McCain sharply criticized it.
On some levels, the ruling was relatively simple—the Court wanted to extend additional rights to foreign enemy combatant detainees. But on close examination, there were several complex issues involved. While few people will read the decision, this will not deter them from offering their opinions on the merits or flaws of the ruling. I encourage all citizens to read it and to get a thorough understanding of what the Court did in this case. This case is one of the most egregious examples you will find of judicial activism, lack of judicial restraint, and judicial pre-emption of foreign policy power and national defense power from the Executive and Legislative branches of the government. The implications of this decision are extensive and profound.
It is difficult to distill in a few words a concise summary of what happened in this case. The Majority opinion (authored by Justice Anthony Kennedy) took 70 pages. The dissent of Chief Justice John Roberts took 28 pages, and the dissent of Justice
Antonin Scalia took 25. When you add in Justice Souter’s 3-page concurring opinion—the total pages reach 126. But the reading of this opinion is a must for all patriots.
By the time you get to page 70 in Justice Kennedy’s majority opinion, you may be mesmerized or persuaded by his reasoning. The majority feels the pain of the enemy combatants at Guantanamo Bay, who for six years (some of them) have remained detained after they were captured in foreign lands fighting against our troops. To some, the length of this detention is intolerable. To some, the criticism that some international peoples level at the U.S. for maintaining the Guantanamo detention facility is more than they can stand. Five of the Supreme Court Justices appear to be in this group. Their impatience and disapproval of the nation’s operations in Guantanamo Bay has led them to hastily and abruptly take actions that have undermined over 200 years of constitutional precedence to attempt to appease enemies of America who will never be appeased because their hatred for America is unreasonable and intractable.
I. Background
Previous to the Boumediene ruling, alien enemy combatants had no rights to habeas corpus protection in U.S. courts if they were confined abroad in places where the U. S. was not sovereign. The case of Johnson v. Eisentrager, 339 U.S. 763, (1950) specifically held this. (See, e.g., Scalia, J., dissenting, p. 10.) The Bush administration properly relied on this precedent, as it detained captive, alien enemy combatants at Guantanamo Bay. But this year’s ruling in Boumediene abandoned stare decisis and overturned Eisentrager (1950) and effectively overturned Hamdi v. Rumsfeld, 542 U.S. 507 (2004) for no compelling reasons. A close examination of the Boumediene ruling will show that it will not give these enemy combatants any significant additional rights, and that the Boumediene holding will serve only as a rebuke of the Bush administration by the Court, when the Bush administration had in good faith relied on Supreme Court precedents. Consequently, all that this case accomplished is to diminish the power of the Executive Branch and to enlarge the power of the Judicial Branch.
II. Problems with Boumediene
Here is a list of some of the major problems in Boumediene v. Bush:
l. The Supreme Court, for the first time, confers on non-citizen, alien enemy combatants the right to seek and obtain the protections of a writ of habeas corpus in U. S. Courts.
2. This ruling by the Supreme Court effectively overturns the 1950 case of Johnson v. Eisentrager, 339 U.S. 763. Until now, there was no question but that alien enemy combatants at the Guantanamo Bay facility would not have the right to access to
U. S. courts through the filing of writs of habeas corpus. But the majority decided to interpret Eisentrager differently—they said that since the U.S. has effective control over Guantanamo Bay, that therefore the habeas writ should be made available. The Majority denies that they overturned Eisentrager, but they offered only obfuscation and linguistic contortions rather than sound reasoning in support of their conclusion. The majority’s effort to reconcile its ruling in Boumediene with its ruling in Eisentrager is a total failure—and will convince only those whose analysis processes do not insist upon facts and sound reasoning.
3. This ruling by the Supreme Court also effectively overturns major parts of the recent, 2004, case of Hamdi v. Rumsfeld, in which case the Supreme Court recommended the precise procedures and practices that Congress and the President then enacted to ensure that the detention of alien enemy combatants satisfies all constitutional requirements. In that regard, Chief Justice Roberts wrote this:
The plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.
The plurality specifically stated that constitutionally adequate collateral process could be provided “by an appropriately authorized and properly constituted military tribunal,” given the “uncommon potential to burden the Executive at a time of ongoing military conflict.” Id., at 533, 538. This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due.
If the CSRT 2 procedures meet the minimal due process requirements outlined in Hamdi, and if an Article III court is available to ensure that these procedures are followed in future cases, . . . there is no need to reach the Suspension Clause question. Detainees will have received all the process the constitution could possibly require, whether that process is called “habeas” or something else. The question of the writ’s reach need not be addressed. (Roberts, C. J., dissenting, pp. 4-5.)
4. In this case the Supreme Court specifically holds unconstitutional portions of the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA), which acts were specifically passed by Congress and signed by the President to comply with the requirements that the Supreme Court articulated in Hamdi.
5. The Majority in Boumediene erroneously concluded that Combatant Status Review Tribunals (CSRTs) do not have the authority to release detainees if their deten-tion is not warranted. The majority’s view on this issue is patently absurd. The authority to release one who is not properly detained is clearly implicit in the law’s language, and some detainees had been released. The majority’s reasoning here is pathetic. 3
6. The action by the majority in Boumediene is wholly inconsistent with the Court’s precedents, and amounts to a repudiation of the Court’s doctrine of stare decisis, which the Court used to honor in attempting to be consistent with its prior rulings.
7. The Court in Boumediene ruled that because the CSRT procedures provide that "newly discovered evidence" may be presented only by a new proceeding, and not during an appeal, that therefore such CSRT procedures violate the constitutional rights of the alien enemy combatants. This is a distinction without a difference—it is an inconsequential matter that does not affect any substantive right. The majority was straining to find fault with this technicality.
III. Justice Scalia’s Comment
Here is what Justice Scalia said about the Boumediene ruling:
Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus .... It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today. [Scalia, J., at 25.]
IV. Chief Justice Roberts’ Conclusion
Chief Justice Roberts concluded this about Boumediene:
For all its eloquence about the detainees’ right to the writ, the Court makes no effort to elaborate how exactly the remedy it prescribes will differ from the procedural protections detainees enjoy under the DTA. [Roberts, CJ, at 25.]
The majority instead compares the undefined DTA process to an equally undefined habeas right—one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided .... All that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary. [Roberts, CJ , at 2-3.]
Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of` federal policy regarding enemy combatants?
--Roberts, C.J., at 1-2
American Citizens Have Right to Habeas Corpus Relief When Detained Abroad
On June 12, 2008, a unanimous Supreme Court ruled in Munaf v. Geren, 554 U.S. ___ (2008) that American citizens detained outside the United States and charged with war offenses against the U.S. have the right to seek and obtain habeas corpus review of their detention.
Although the Court was sharply divided (5-4) in its ruling in Boudiemene that alien enemy combatants had a right to habeas corpus review of their detention, in Munaf the Court was unanimous in holding that American citizens have the right to habeas corpus review no matter where they may be detained.
1 It is important to understand the definition of an “enemy combatant.” This is to be distinguished from a prisoner of war, in the uniform of its country. An enemy combatant is one who is not dressed in the military uniform of its country, but who for all appearances is a civilian, and who nevertheless fights against our troops. In other words, an enemy combatant is like a spy or a terrorist who may by subterfuge and stealth infiltrate our ranks to wreck havoc through covert means.
2 Combatant Status Review Tribunals
3 It should be pointed out that some of the detainees that were released later returned to the battle field to kill American troops.
2008 Presidential Campaign Heats Up
Constitutional Law Updates
September 2008
No. 14
2008 Presidential Campaign Heats Up
John McCain (R) vs. Barack Obama (D)
by C. Paul Smith
The 2008 presidential campaign is already a year old, and we are less than 90 days from Election Day (November 4, 2008). Regardless of the outcome, this election has already proved itself to be one of the most interesting and intense of any in recent history. A year ago, we were already anticipating the election of the first woman president; the big issues seemed to be who would Hillary select as her VP, and what would Bill be doing in the White House. But, a year later, the Democrat Party has rejected Hillary and embraced Barack Obama, who may become the first black president. And things were just as tumultuous on the Republican side, where a year ago former New York Mayor Rudy Giuliani was the front runner to obtain the nomination. John McCain had dropped out of sight in the polls, and former Massachusetts Governor Mitt Romney (who hoped to become the first Mormon president) was emerging from the crowd of candidates, making a concerted effort to apply his business skills to win the nomination. But in a matter of months, Giuliani faded into oblivion; Romney quickly took a lead in the early primaries; former Arkansas Governor Huckabee came from nowhere to play a prominent role in the primaries; but John McCain raised himself from the dead, won a couple of primaries, and then in February, he staged impressive wins in several states that catapulted him to a lead that he never relinquished.
The one “first” that is still up for grabs is whether Obama will be the first black president. This certainly looks possible. However, for my part, electing Obama would be a mistake. Race and color and religion have nothing to do with my views—my positions are issue-oriented, and here they are:
FOREIGN AFFAIRS
PERSONAL LIBERTIES
Except for his lapse in judgment in sponsoring the Bipartisan Campaign Finance Reform Act, McCain is an advocate for freedom of speech.2 But while McCain has been shaky on this issue, Obama’s position is no better.
THE SUPREME COURT
Finally, one of the most important issues in this presidential campaign is what direction each candidate would take the Supreme Court. We must expect there to be 1 – 3 vacancies in the Supreme Court in the next four years. Right now the Court is pretty much evenly divided between four strong conservatives Justices (Scalia, Thomas, Roberts (Chief Justice) and Alito), and four strong liberal Justices (Stevens, Souter, Ginsburg and Breyer). The ninth Justice, Kennedy, is mostly conservative, but he is clearly the swing vote in many close cases. As this issue of Constitutional Law Updates will demonstrate, the next appointments will indicate whether the Court turns either to the left or to the right. John McCain and Barack Obama are clearly on opposite sides of this issue. Obama will take us to the left—towards bigger government and more socialism and fewer individual rights; and McCain will take us more to the right—limiting the size of government, cutting government expenses, and standing up against those who seek to expand the right to abort the unborn. I have hope that McCain will stand firm for traditional family values, that he will recognize the need to protect our borders, and that he will back off from his mistake in championing campaign finance reform (at the expense of jeopardizing free speech rights). But I have no hope with Obama on these issues; so once again, McCain is clearly the better choice.
CAN OBAMA PULL IT OFF?
Up to this point, Obama has been the Houdini of politics. He has magically, masterfully proclaimed that we need to change Washington, and that he’s the man to do it. His followers have hypnotically nodded and given their support—although he has escaped being pinned down to state exactly what it is that he intends to change. Now that he has won the Democrat nomination, he has had some time to figure out some specific changes that will go into his platform. Until now, most of his supporters have not really cared much about most of his positions—he won the nomination based upon his charisma and his style, not based upon the substance of his positions. Whether Obama can continue to pull-off this political magic show through November 4th, remains to be seen. As for me, I see his recent move toward the center to be merely a political expediency, which I suspect he will abandon upon election. In predicting what Obama really stands for, one must go on his previous voting record (albeit a short record). Obama will increase the size of government, raise taxes, encourage abortion and same-sex marriage. He will heap increased burdens on our economy in a mindless fanaticism to stop global warming.
I do not know whether this nation will awaken from the hypnotic sleep that has hoisted Obama to front-runner status in the presidential race. And while I differ deeply with John McCain on several issues, there are more than enough issues on which McCain is in the right, and on which Obama is wrong. Therefore my support is unequivocally for McCain.
1 These phrases are taken from Thomas Paine’s pamphlet Common Sense, that encouraged the patriots during the Revolutionary War.
2 Perhaps Senator McCain sees the light now, since The New York Times refused a few weeks ago to print his response to an editorial by Senator Obama. McCain must recognize that the mainstream news media, especially The New York Times, has a blatant liberal bias. And as liberal as he may be at times, Senator McCain is far right of where Senator Obama is. This is why the Campaign Finance Reform law was so bad—it empowered the liberal media to have increased power and influence in the days just prior to elections, at the same time it blocked others from speaking up on current issues.
September 2008
No. 14
2008 Presidential Campaign Heats Up
John McCain (R) vs. Barack Obama (D)
by C. Paul Smith
The 2008 presidential campaign is already a year old, and we are less than 90 days from Election Day (November 4, 2008). Regardless of the outcome, this election has already proved itself to be one of the most interesting and intense of any in recent history. A year ago, we were already anticipating the election of the first woman president; the big issues seemed to be who would Hillary select as her VP, and what would Bill be doing in the White House. But, a year later, the Democrat Party has rejected Hillary and embraced Barack Obama, who may become the first black president. And things were just as tumultuous on the Republican side, where a year ago former New York Mayor Rudy Giuliani was the front runner to obtain the nomination. John McCain had dropped out of sight in the polls, and former Massachusetts Governor Mitt Romney (who hoped to become the first Mormon president) was emerging from the crowd of candidates, making a concerted effort to apply his business skills to win the nomination. But in a matter of months, Giuliani faded into oblivion; Romney quickly took a lead in the early primaries; former Arkansas Governor Huckabee came from nowhere to play a prominent role in the primaries; but John McCain raised himself from the dead, won a couple of primaries, and then in February, he staged impressive wins in several states that catapulted him to a lead that he never relinquished.
The one “first” that is still up for grabs is whether Obama will be the first black president. This certainly looks possible. However, for my part, electing Obama would be a mistake. Race and color and religion have nothing to do with my views—my positions are issue-oriented, and here they are:
FOREIGN AFFAIRS
McCain, who proudly proclaims himself to be a foot soldier under President Reagan, will employ an approach to foreign relations that will mirror that of President Reagan—Peace through Strength. McCain’s personal courage and bravery is legendary. The Democrat Party’s nominee doesn’t bring either the personal resume nor the principled philosophy to qualify him to lead the nation in international dealings. Merely proclaiming peace and decrying war is not an adequate foreign policy, and it does not appear that Senator Obama has learned the lessons from world history, that evil will not just magically disappear through the appeasement approach. Those who understand world history recognize that during World War II millions of people were innocently killed by the Nazis and the Communists, and that America played a key role in liberating the world from those evil powers. Over 400,000 Americans gave their lives in World War II to suppress the evil powers and to liberate millions of people. Failing to appreciate this, the Democrat candidate echoes the naïve pacifist approach of Neville Chamberlain in the late 1930’s, who sought to avoid confrontation in the guise of championing peace. That flawed approach was a failure then, just as it would be today in dealing with terrorists and insurgents. He will return the nation to the touchy-feely international relations policies of Clinton, thinking that talks and negotiations can solve any and every international crisis, all the while alerting terrorists that open season is here again.
The WAR in Iraq and Afghanistan—McCain insists that we must not leave Iraq
prematurely, for this would invite a blood-bath of thousands of innocent people who had been friendly to us, but who would be left to suffer abuse, torture and death at the hands of evil terrorists. The “surge” has worked, and is enabling us to withdraw from Iraq successfully, leaving a new government that appears capable of maintaining an acceptable level of peace and stability in Iraq. This is a tremendous accomplishment! It could be a tremendous benefit to that region and to the entire world. Now that the surge has proved successful, most Democrats (including Senator Obama) have become resigned to victory in Iraq. But “during the times that tr[ied] men’s souls,” Obama showed himself to be a “sunshine soldier” whose resolve wilted under pressure.1 Obama’s position on the War has mirrored the changing popularity of the conflict. When the war was unpopular, Obama insisted that we set immediate time-tables and get out immediately. When the going got tough in Iraq, Obama led the call for retreat.
The contrast between McCain and Obama could not be more stark. McCain refused to give in to the demands of Obama and his followers, who urged precipitous retreat when we were on the verge of securing victory. McCain called for the surge, because he saw that it could obtain victory for us and stability and peace for the Iraqis. The U.S. did not go to Iraq for oil or to nation-build; we went there with 70 % national approval to eradicate an evil dictator who fomented and sponsored terrorism in Iraq and abroad; Hussein offered monetary awards to families who would sponsor suicide bombers to kill Israelis. He harbored those who sought to destroy America. And once Sadaam Hussein was taken out, we owed a moral duty to help the Iraqis form an operable government that could protect its people. In retrospect, it appears that many Americans now regret our intervention in Iraq, but a majority continue to recognize our moral responsibility to leave Iraq better than we found it. That is why the premature withdrawal option would have been a mistake.
Senator Obama has begun to flip-flop on multiple issues recently, now that he sees the need to move from the left to the center. Now he’s trying to distance himself from himself when he was the spokesman for withdrawal and defeat in Iraq. Obama does not possess the courage and resolve of McCain, who has and will steadfastly stand up against the evil terrorists, regardless of the fickle and politically correct cat calls of those who can’t stomach the cost of liberty and who lack the backbone to take a brave stand for the defense of our own nation and for the liberty and freedom of our brothers and sisters around the world. McCain has the backbone to do this, whereas Obama repeatedly shows that he does not.
The ECONOMY
The WAR in Iraq and Afghanistan—McCain insists that we must not leave Iraq
prematurely, for this would invite a blood-bath of thousands of innocent people who had been friendly to us, but who would be left to suffer abuse, torture and death at the hands of evil terrorists. The “surge” has worked, and is enabling us to withdraw from Iraq successfully, leaving a new government that appears capable of maintaining an acceptable level of peace and stability in Iraq. This is a tremendous accomplishment! It could be a tremendous benefit to that region and to the entire world. Now that the surge has proved successful, most Democrats (including Senator Obama) have become resigned to victory in Iraq. But “during the times that tr[ied] men’s souls,” Obama showed himself to be a “sunshine soldier” whose resolve wilted under pressure.1 Obama’s position on the War has mirrored the changing popularity of the conflict. When the war was unpopular, Obama insisted that we set immediate time-tables and get out immediately. When the going got tough in Iraq, Obama led the call for retreat.
The contrast between McCain and Obama could not be more stark. McCain refused to give in to the demands of Obama and his followers, who urged precipitous retreat when we were on the verge of securing victory. McCain called for the surge, because he saw that it could obtain victory for us and stability and peace for the Iraqis. The U.S. did not go to Iraq for oil or to nation-build; we went there with 70 % national approval to eradicate an evil dictator who fomented and sponsored terrorism in Iraq and abroad; Hussein offered monetary awards to families who would sponsor suicide bombers to kill Israelis. He harbored those who sought to destroy America. And once Sadaam Hussein was taken out, we owed a moral duty to help the Iraqis form an operable government that could protect its people. In retrospect, it appears that many Americans now regret our intervention in Iraq, but a majority continue to recognize our moral responsibility to leave Iraq better than we found it. That is why the premature withdrawal option would have been a mistake.
Senator Obama has begun to flip-flop on multiple issues recently, now that he sees the need to move from the left to the center. Now he’s trying to distance himself from himself when he was the spokesman for withdrawal and defeat in Iraq. Obama does not possess the courage and resolve of McCain, who has and will steadfastly stand up against the evil terrorists, regardless of the fickle and politically correct cat calls of those who can’t stomach the cost of liberty and who lack the backbone to take a brave stand for the defense of our own nation and for the liberty and freedom of our brothers and sisters around the world. McCain has the backbone to do this, whereas Obama repeatedly shows that he does not.
The ECONOMY
McCain seeks to cut taxes and to cut government spending. Obama promises to raise taxes and to add multiple new government programs at a cost of billions. Apparently there is no limit to the size of government that Obama seeks to build. Obama has the most liberal voting record of any U. S. Senator.
It’s not that Senator Obama opposes having a strong economy—it’s just that his commitment to left-wing special interests put him on a course that would severely damage the economy. Specifically, he wants universal health care, he wants to stop global warming, and he wants to stop drilling for new oil in America. His radical loyalty to the left-wing fanatics on these issues would lead the nation into full blown socialism and would hamper and destroy the businesses that have been the foundation of our economy—the strongest economy in the world. Senator Obama does not recognize how the environmental special interest groups have already weakened our economy based upon biased science and hysterical threats that the sky is falling. For example, the cost to build roads has skyrocketed because of the environmental impact studies and ever-expanding procedures that have multiplied since the Interstate Highway System was initiated in the 1950’s. This lunacy has got to stop, and adjustments must be made in our laws—some must be repealed. But Barack Obama will not be the one to do this—he supports increased environmental laws, increased bureaucracy, increased red-tape, and of course, increased taxes to pay for the bigger bureaucracy.
The increased governmental programs Obama is calling for amount to socialism. Obama feels everyone’s pains, and he intends to expand government to solve all problems. But this undisciplined approach to government leads to excessive government, which can survive only by increasing taxes. This approach must stop! We cannot continue to act like government has to solve all our problems. Obama does not recognize this, whereas McCain does. McCain is clearly the better choice on economic issues.
SOCIAL ISSUES
It’s not that Senator Obama opposes having a strong economy—it’s just that his commitment to left-wing special interests put him on a course that would severely damage the economy. Specifically, he wants universal health care, he wants to stop global warming, and he wants to stop drilling for new oil in America. His radical loyalty to the left-wing fanatics on these issues would lead the nation into full blown socialism and would hamper and destroy the businesses that have been the foundation of our economy—the strongest economy in the world. Senator Obama does not recognize how the environmental special interest groups have already weakened our economy based upon biased science and hysterical threats that the sky is falling. For example, the cost to build roads has skyrocketed because of the environmental impact studies and ever-expanding procedures that have multiplied since the Interstate Highway System was initiated in the 1950’s. This lunacy has got to stop, and adjustments must be made in our laws—some must be repealed. But Barack Obama will not be the one to do this—he supports increased environmental laws, increased bureaucracy, increased red-tape, and of course, increased taxes to pay for the bigger bureaucracy.
The increased governmental programs Obama is calling for amount to socialism. Obama feels everyone’s pains, and he intends to expand government to solve all problems. But this undisciplined approach to government leads to excessive government, which can survive only by increasing taxes. This approach must stop! We cannot continue to act like government has to solve all our problems. Obama does not recognize this, whereas McCain does. McCain is clearly the better choice on economic issues.
SOCIAL ISSUES
Senator McCain supports traditional marriage as the preferred unit in society for the rearing of children, and he is pro life. But Senator Obama does not stand up for traditional marriage, and he champions a woman’s right to choose death for her unborn child. It is critical that the presidential candidates take a stand on these most important social issue—Will you support the continuation of the traditional family as the bedrock of our society, OR will you support the causes of those who will destroy marriage by redefining it to be available to any and every adult relationship that one can conceive (pardon the double entendre). And as for abortion—anyone who supports partial birth abortion is either ignorant of what it is or else his judgment is so fundamentally impaired that he must not be elected to lead a civilized nation. Partial-birth abortion kills the unborn baby in a painful, gruesome manner for no valid purpose. The theory that such a procedure is justified to preserve the life and health of the woman is a fiction. And it was Barack Obama who, in the Illinois State Senate, blocked legislation that would require the participating parties to attempt to save the lives of children who were born alive after abortions. This was a barbaric and disgraceful position—and demonstrates a total disregard for those humans who are least capable of defending themselves.
PERSONAL LIBERTIES
John McCain fights to preserve the right to bear arms. Obama sided with the minority in D. C. v. Heller. Obama does not believe that the right to bear arms is an individual right. McCain believes it is.
McCain fights to preserve the nation’s heritage of being a God-fearing nation.
And while the Democrat Party gives lip service to love of God, they are the party that interprets the First Amendment to require “freedom from religion,” as they regularly champion the causes of those groups whose stated goal is to eliminate God from government. Conversely, the Republican Party recognizes that government can and should accommodate God and religion because they are vital components of a good society. The First Amendment’s prohibition from the establishment of any one religion does not mean that all references to God must be excised from government.
McCain fights to preserve the nation’s heritage of being a God-fearing nation.
And while the Democrat Party gives lip service to love of God, they are the party that interprets the First Amendment to require “freedom from religion,” as they regularly champion the causes of those groups whose stated goal is to eliminate God from government. Conversely, the Republican Party recognizes that government can and should accommodate God and religion because they are vital components of a good society. The First Amendment’s prohibition from the establishment of any one religion does not mean that all references to God must be excised from government.
Except for his lapse in judgment in sponsoring the Bipartisan Campaign Finance Reform Act, McCain is an advocate for freedom of speech.2 But while McCain has been shaky on this issue, Obama’s position is no better.
THE SUPREME COURT
Finally, one of the most important issues in this presidential campaign is what direction each candidate would take the Supreme Court. We must expect there to be 1 – 3 vacancies in the Supreme Court in the next four years. Right now the Court is pretty much evenly divided between four strong conservatives Justices (Scalia, Thomas, Roberts (Chief Justice) and Alito), and four strong liberal Justices (Stevens, Souter, Ginsburg and Breyer). The ninth Justice, Kennedy, is mostly conservative, but he is clearly the swing vote in many close cases. As this issue of Constitutional Law Updates will demonstrate, the next appointments will indicate whether the Court turns either to the left or to the right. John McCain and Barack Obama are clearly on opposite sides of this issue. Obama will take us to the left—towards bigger government and more socialism and fewer individual rights; and McCain will take us more to the right—limiting the size of government, cutting government expenses, and standing up against those who seek to expand the right to abort the unborn. I have hope that McCain will stand firm for traditional family values, that he will recognize the need to protect our borders, and that he will back off from his mistake in championing campaign finance reform (at the expense of jeopardizing free speech rights). But I have no hope with Obama on these issues; so once again, McCain is clearly the better choice.
CAN OBAMA PULL IT OFF?
Up to this point, Obama has been the Houdini of politics. He has magically, masterfully proclaimed that we need to change Washington, and that he’s the man to do it. His followers have hypnotically nodded and given their support—although he has escaped being pinned down to state exactly what it is that he intends to change. Now that he has won the Democrat nomination, he has had some time to figure out some specific changes that will go into his platform. Until now, most of his supporters have not really cared much about most of his positions—he won the nomination based upon his charisma and his style, not based upon the substance of his positions. Whether Obama can continue to pull-off this political magic show through November 4th, remains to be seen. As for me, I see his recent move toward the center to be merely a political expediency, which I suspect he will abandon upon election. In predicting what Obama really stands for, one must go on his previous voting record (albeit a short record). Obama will increase the size of government, raise taxes, encourage abortion and same-sex marriage. He will heap increased burdens on our economy in a mindless fanaticism to stop global warming.
I do not know whether this nation will awaken from the hypnotic sleep that has hoisted Obama to front-runner status in the presidential race. And while I differ deeply with John McCain on several issues, there are more than enough issues on which McCain is in the right, and on which Obama is wrong. Therefore my support is unequivocally for McCain.
1 These phrases are taken from Thomas Paine’s pamphlet Common Sense, that encouraged the patriots during the Revolutionary War.
2 Perhaps Senator McCain sees the light now, since The New York Times refused a few weeks ago to print his response to an editorial by Senator Obama. McCain must recognize that the mainstream news media, especially The New York Times, has a blatant liberal bias. And as liberal as he may be at times, Senator McCain is far right of where Senator Obama is. This is why the Campaign Finance Reform law was so bad—it empowered the liberal media to have increased power and influence in the days just prior to elections, at the same time it blocked others from speaking up on current issues.
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