Archive for Supreme Court

The Supreme Court and the Second Amendment: a Look at Language

Posted in civil rights, Constitution, national defense, News, politics, Second Amendment with tags , , , , , on March 19, 2008 by Randy Streu

On Tuesday, the Supreme Court of the US heard arguments on individual gun-ownership rights in Washington, D.C.  District of Columbia v. Heller is the first case before the Supreme Court to test this issue nationally, though it perhaps shouldn’t have been.  There are actually several lower-court cases in which this issue was incorrectly decided; but the timing is fortuitious in this case, as a majority of the justices seem inclined to accurately read the language of the Second Amendment.

The amendment, for those uncertain, 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.”  And it is this language which causes the controversy (though a clear reading of the rest of the document shows that it needn’t be controversial). 

The anti-gun lobby reads the language to mean gun ownership is allowed only insofar as is necessary to serve in the military.  However, when you apply basic textual criticism, in reading the second part of the amendment, you see that the right, as such, to keep and bear arms, exists quite independently of the government.  Indeed, this the theme of most of  this nation’s founding documents: individual rights aren’t granted — only limited. 

This intent is clear in the language of the Second Amendment as well.  “The right to keep and bear arms shall not be infringed.”  Not, “the people shall be granted the right to bear arms.”  The Signers were well aware of the difference in intent here.  The right to bear arms is a right we have, says the Constitution, and the government shall not infringe on that right.  Put another way, the Amendment basically says, “The government will not limit the right of the citizenry to keep and bear arms, and one reason for this is the need for a prepared militia.”

The language is key.  The Constitution, along with the Bill of Rights, do not grant a single right.  Liberty, as has been pointed out at this site before, and as has clearly been recognized by the drafters of the Constitution — especially if one takes the time to examine the other founding documents — is the natural state.  We are born free.  Governments don’t grant rights; only limit them. 

And the second amendment, regardless of reasoning, is clear in its mandate: the right to bear arms must not be infringed.

-Streu-

Spokane Washington Chaplains Lose Crosses: A Lesson on the First Amendment

Posted in civil rights, Constitution, First Amendment, politics with tags , , , , on December 12, 2007 by Randy Streu

Or, How One Guy’s Hatred of God, Combined With His Inability to Read the Constitution, Cost Washington Taxpayers Money and Forced His Ignorant Views on Spokane Cops

Frankly, I considered posting this on Faith&Wonder, my religious blog.  After all, I think what I’m about to discuss here really has to do with one man’s fear of the Cross.  But that’s a little deeper than I want to get with this.  What I really want to talk about here is a proper understanding of the First Amendment.  Too many people don’t get it; and this is the latest in a string of events and suits that prove the point.

Ray Ideus, a volunteer with the Spokane, WA police department (an ex-pastor-turned-atheist, as it turns out) took the department to court because the crosses on the badges of the police chaplains offended him.  Assistant City Attorney “Rocky” Treppiedi filed countersuit because Ideus’ lawsuit was idiotic.  Okay, Treppiedi said it was “false and unfounded, malicious and without probable cause.”  Po-tay-to,  po-tah-to. 

But, then, Spokane caved, gave the guy what he wanted and agreed to drop their countersuit — and called it a “settlement.”

Actually, I have to hand it to Spokane.  The suit even being brought up wasted taxpayer money.  A protracted court battle would have wasted more taxpayer money.  But here’s the kicker: depending on the judge, and his/her understanding of the Constitution, they could have won.  Was a legal smackdown against a 75-year-old man worth the court fees the taxpayers would have put up?  Probably not.  On the other hand, on top of being hilariously satisfying, they might well have gotten this case all the way up the ladder.  And, if our current crop of Supreme Court Justices are feeling like correctly interpreting Constitutional law, this case could well have created a precedent on State’s Rights that actually takes an accurate view of the First Amendment (as opposed to the travesty that is Engel vs. Vitale).

People take the “Establishment Clause” of the First Amendment to mean a whole lot of things that, put simply, it doesn’t mean.  So, let’s take a quick look at it:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

Now, the second part is the part the ACLU doesn’t really like to talk about very often.  They like the first part a lot better — the “establishment clause.”  Interesting, in a group purporting to be interested in civil “liberty.”  But I digress.  The first part says, “Congress shall make no law.”  In the language of the Constitution, “Congress” refers specifically to federal legislators.  Not State government.  This is why the amendment was worded in this manner.  The Founding Fathers did not want another “Church of England” or official “Roman Catholic Church.”  They did not want a national religion, nor did they want any federal regulation of religious practice.  That’s it.  There is no “separation of church and state.”  It doesn’t exist.

Spokane, WA, in putting crosses on the badges of police chaplains does not violate the Establishment Clause.  Neither does school prayer.  Strictly speaking, if Utah wanted to make Mormonism the official State Religion, they are constitutionally allowed to do so.  Really.  They cannot prohibit somebody from practicing their own religion — “Life, Liberty and the Pursuit of Happiness” takes care of that.  But if they want their schools to teach the History of Mormonism, and have their cops sport Mormon symbolism, according to a constructionist reading of the Constitution, they have that right.

But here’s the wider view — the real reason this story caught my attention: Federal Armed Forces chaplains sporting Christian imagery also does not violate the establishment clause.  The establishment clause does not prohibit government from practicing religion, nor from allowing religion, even among official government actors.  The establishment clause prohibits these chaplains, or any member of the United States Government, from declaring or enforcing, implicitly or explicitly an “official religion.”  This doesn’t mean the government is disallowed from providing Christian chaplains — or chaplains of any other religion.

The Supreme Court in 1962 disagreed with this reading of the Constitution.  And they were wrong.  I’m looking forward to a similar case coming before a Supreme Court who reads the Constitution, instead of reinterpreting to fit personal political ideology.  I understand and applaud the decision of Spokane, WA, to save taxpayer money in not pursuing this.  Perhaps it’s not yet the right time.  But maybe, if we can get a President who will select constructionist judges instead of bench legislators, the right time will come soon.  And maybe, emboldened by the “success” of Ray Ideus, somebody else will bring suit.  And maybe, hopefully, the defendent in that case will find it both necessary and worthwhile to bring it all the way the highest court.

-Streu-