The Mystifying Logic of the Supreme Court

In the past couple of weeks, in three major cases released before adjournment, the United States Supreme Court has left us all wondering just what passes for logic in the hallowed chambers of the nation’s highest judicial chamber. 

This honorable Court has ruled, in recent days, that enemy combatants, who are not U.S. citizens, should be granted access to our court system and provided the same rights under our Constitution enjoyed by American citizens; that the State of Louisiana cannot execute child rapists; and, in what should have been an open-and-shut case, rightfully struck down a Washington, D.C. ban on handguns but only by the slimmest margin possible, 5 to 4.

In the first decision, Boumediene v. Bush, the Court ruled, outrageously, that Guantanamo detainees, that is those persons that U.S. military forces have captured on foreign battlefields and who are engaged in combat against us, have a right to the same due process rights, found in the Fifth Amendment, as U.S. citizens.  In other words, they can use civilian courts rather than the military tribunals, which have always been used throughout U.S. military history.

The Court in this case reversed the decision of the D.C. Court of Appeals, which rightfully concluded that constitutional rights do not apply to aliens outside the United States.

Giving such rights to known terrorists borders on insanity.  Once inside a civilian court, with a defense lawyer in tow, they can demand the right of discovery, gaining valuable intelligence information.  This happened when the perpetrators of the 1993 World Trade Center bombing were caught and put on trial.  Not only is the turning over of information damaging, and potentially deadly, terrorists can also learn how we are gaining our intelligence, which is infinitely more harmful to our national security.

And can you not see how illegal aliens might be able to use this ruling to their benefit?

In Kennedy v. Louisiana, the decision by the Supreme Court to strike down a law passed by the State of Louisiana to execute child rapists is yet another example of the arrogance and misguided logic in Washington.  Here again we see the Supreme Court reaching down into a sovereign State and overturning a law passed by its duly elected representatives.  This practice has been going on since the days of John Marshall, and is clearly outside the bounds of the strict parameters of Article III of the Constitution.

Governor Bobby Jindal called the ruling “an affront to the people of Louisiana.”

And again the chosen method is the Bill of Rights, as the Court often enjoys applying those restrictions to the individual States.  The Left believes that the Fourteen Amendment fastens the First Amendment restrictions upon the States.

But this is not what our Founders desired.

In 1866 Congress passed the Fourteenth Amendment to the Constitution.  Section 1 declares: 

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Two years later, on July 9, 1868, the requisite number of States had ratified it (although some of them where still out of the Union at the time, which makes for an interesting argument against its legality). 

However, nothing in that amendment even suggests that the Bill of Rights was being applied to the individual States.  It does use the same language as the Fifth Amendment, applying those protection upon the States, but nothing more.

It was never the intent of the Founders to apply the Bill of Rights to the States.  Those ten amendments were seen very clearly at the time as a means of binding the federal government. 

In 1875, seven years after helping to pass the Fourteenth Amendment, Congressman James G. Blaine of Maine, who served in the U.S. House, including three terms as Speaker, in the U.S. Senate, as Secretary of State twice, and was the GOP nominee for president in 1884, proposed an amendment that would apply part of the First Amendment to the States.  The “Blaine Amendment” concerned the use of public funds for religious schools, a issue still disputed today.  His amendment stated as follows:

“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

Now the question is this, if the Fourteenth Amendment applied the Bill of Rights to the States, why would Blaine have needed such an amendment?  Because the Fourteenth Amendment did not impose the Bill of Rights upon the States.  But it has since been used by the Court to impose restrictions upon the States and upon the people.

One year later, however, the Court was presented an opportunity to rule on this very subject.  In United States v. Cruikshank (1876) the Court held, by a vote of 9 to 0, that the Bill of Rights does NOT apply to the States.  The case involved civil rights but it clearly had wide-ranging implications, as noted in Chief Justice Morrison Waite’s majority opinion.  He stated, in regard to guns, that the Second Amendment declares that just such a right “shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress.  This is one of the amendments that has no other effect than to restrict the powers of the national government….”  Simply put, Congress, or any part of the federal government, cannot infringe on the liberties protected by the Bill of Rights.

As for the Washington, D.C. gun ban case, District of Columbia v. Heller, the Supreme Court does exercise jurisdiction here because Congress, under Article I Section 8 of the Constitution, is given authority over the seat of the national government. 

The Court struck down D.C.’s long-standing ban on hand guns, in place since 1976, as an unconstitutional violation of the Second Amendment, which the Court interpreted to be an individual right.  But why would this case be so close?  Four justices, the liberal members of the Court, took the opposite side in what should have been a slam-dunk case.  But this is judicial activism at its best – if they don’t like the Constitution they just simply rule how they would like it to be.

Over the weekend I watched one of my favorite movies, Clint Eastwood’s Unforgiven, in which several scenes brought me back to the Heller case.  If you recall the film, Gene Hackman’s character, Sheriff Little Bill Daggett, oversaw a gun ban in his small town of Big Whiskey, Wyoming.  This left the townspeople, and any visitors who might enter, totally at the mercy of the sheriff’s department, i.e. the government.  Without any weapons to defend themselves against an over-bearing government, the people simply had to endure Little Bill’s vicious beatings, three of which are showcased during the film. 

The Founding Fathers had just such a scene in mind when they envisioned the Second Amendment, the “right of the people to keep and bear arms” in order to defend themselves against an oppressive government, on any level.  The idea of a government taking away the people’s arms smacked of tyranny in its worst form.  For if a people were disarmed, government would be free to do as it wished.  This should be unthinkable to any freedom-loving person.

The Second Amendment simply states:  “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.”  It must be noted that a militia in the 18th century was not like today’s national guard, but a unit consisting of the local people, who were armed, and could repel invasions, like the minutemen at Lexington and Concord.  George Mason, a “Father of the Bill of Rights” along with James Madison,  once said of militias, “I ask, sir, what is the militia?  It is the whole people, except for a few public officials.”

But the amendment also protected one’s right of self-defense and the right to dispose of a hostile government.  The evidence for this is clear in the historical record.  Without the Second Amendment, the rest of our protected rights are meaningless.

The Left, predictably, has already kicked off a full-scale assault on the ruling and on gun rights in general.  The Chicago Tribune editorialized on Friday, June 27th, that not only were the Founding Fathers complete idiots but we should, as the title states, “Repeal the 2nd Amendment.”

We must be on-guard against these kinds of brazen attacks.  Although they may be unthinkable, the Left has always been masters of chipping away at our rights and liberties until they are no more. 

But we cannot, as true conservatives, put too much faith in the Supreme Court as the final judge of our liberties.  This was not the intent of the Founders and it should not be our platform either.  For the logic of five robed members of the Supreme Court can trample our rights as surely as a despot.


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