Guest Post

  • May 9, 2014
    Guest Post

    by Mark R. Killenbeck, Wylie H. Davis Distinguished Professor, University of Arkansas

    * May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    One of my teaching mantras is “simplicity is bad, complexity is good.”  Students want me to make things simple. I resist, telling them that in a black-letter-rule, one-two-three world, there would be no need for their services. The Supreme Court’s current take on the Second Amendment should accordingly be a source of great comfort, a perfect example of complexity given a text replete with “prefatory” and “operative” clauses that, taken together, mean that it is about more than a “well-regulated militia.”  Rather, as Justice Antonin Scalia informed us in District of Columbia v. Heller, the amendment is simply one expression of an “ancient [individual] right” that embraces both the militias of which it speaks and “self-defense and hunting.” It is also, per McDonald v. City of Chicago, “fundamental to our scheme of ordered liberty,” such that we cannot possibly envision a “civilized system” that does “not accord th[is] particular protection.”

    It was not always so. Rather, when the unanimous holding in United States v. Miller provided the analytic matrix, the “obvious purpose” of an amendment that spoke solely of militias was to “render possible the effectiveness of such forces.” Read together with the militia clauses in Article I, section 8, it facilitated occasional and effective recourse to state militias that could be “called forth” and “employed in the Service of the United States.” That right was, pace Heller, individual, tied to the availability of armed and trained individuals who were “citizens primarily, soldiers [only] on occasion.” But, at least as a matter of protection from the federal government, the goal was not to secure the “right to keep and bear arms for [all] lawful purposes, most notably for self-defense within the home.”

  • May 8, 2014
    Guest Post

    by James C. Nelson, Justice, Montana Supreme Court (Retired)

    I am a non-believer. I became one late in my adult life because I was disgusted with the hypocrisy of religion in general and with the Catholic Church in particular. My decision was grounded in more hours of study and contemplation than I care to estimate. I do not believe in, much less pray to, any god.

    And my point with that opening is that the religion clauses of the First Amendment to the United States Constitution protect my fundamental right to be a non-believer; they insure, among other things, that my various federal, state, county and local governments cannot require me – directly or indirectly – to participate in any religious exercise. Read together these religion clauses form the wall of separation between church and state that the framers intended. They keep – or at least they are supposed to keep – religion out of government and government out of religion.

    That is why I cannot not accept the U.S. Supreme Court’s May 5, decision in Town of Greece v. Galloway. In that case the Court held that the town opening its  official board meetings with a Christian prayer offered by members of the clergy does not violate the First Amendment and does not discriminate against minority faiths or coerce participation with non-adherents. 

    The Court’s decision is flat wrong. It respects neither the history underpinning the adoption of the religion clauses, the wall of separation, nor the reality that “We the People” are a pluralistic and diverse society encompassing all degrees of sectarian believers, agnostics and athiests. Nonetheless, that decision is now the law of the land—created from whole cloth and judicially blessed by the right wing Christian majority of our Nation’s highest Court. And, that puts me in a box.

    For many years I have stood during opening prayers in public meetings of federal, state and local government. I did so out of a sense of respect for the beliefs of others and for decorum – notwithstanding my personal dis-belief in the prayer and the god prayed-to. But, while respect can be freely given, it cannot be compelled.  And, thus, The Town of Greece leaves me but one option.

    I will stand no longer for prayer! I will not, as the Supreme Court suggests, leave the room during the invocation. Rather, I will sit during the prayer in the meeting room in which I am constitutionally entitled to assemble. I will not be bullied nor will I be shamed into standing. After all, it is not I who is violating the constitutional separation of church and state. I cannot and will not be compelled to participate in any fashion in government sponsored prayer.

  • May 8, 2014
    Guest Post

    by Carol Berkin, Presidential Professor American Colonial and Revolutionary History, Women’s History, Baruch College, City University of New York

    *May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.”  The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald.  How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.

    Let me make my small contribution to this discussion as an 18th century historian. In doing research for my new book, The Bill of Rights: Securing America’s Liberties, I read the complete records of the House debates on Madison’s proposed amendments during the first session in 1789. I also read the personal correspondence of members of the House and Senate on the subject. The Senate held closed sessions that term and so their discussions were not available, but journals such as Maclay’s and private letters fill in some of the disagreements and debated issues within the Senate.

    A little background first. My apologies if this is familiar to you all.

    In the 18th century, political loyalty was primarily provincial; that is, most men thought of themselves as citizens of their states, as Virginians, New Yorkers, Georgians, not as Americans. The men at the Constitutional convention were, in fact, particularly distinguished by their inclination, as Alexander Hamilton put it, to “think continentally.”

  • May 7, 2014
    Guest Post
    by William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
     
    There are myriad critiques that one might level at the Town of Greece v. Galloway decision—its lack of concern for messages of exclusion and the protection of minority religious rights being at the top of the list. But lack of predictability is not one of them.
     
    My guess is that not many people were ultimately surprised by the decision. Most everybody expected that the Court was not going to use the case to significantly alter existing Establishment Clause doctrine. Most everybody predicted that the Court’s decision would likely be 5-4 and that Justice Kennedy would cast the deciding vote. And most everybody agreed that because the decision would rest with Justice Kennedy, the Court’s opinion would be indecipherable no matter which way he sided. The oracles were three for three.
     
    Let’s begin with prediction one. That the Court might overturn Marsh v. Chambers, the 1983 decision upholding legislative prayer was never really much of a possibility. The plaintiffs themselves argued only that the Town of Greece’s prayer practice should be modified to be less sectarian and more inclusionary and even Justice Kagan’s dissent did not call for invalidating all legislative prayer.
     
    Nor was it likely from the other side that the Court would overrule precedents limiting government sponsored prayer in more controversial settings such as public classrooms and public school graduation ceremonies. Justice Kennedy, after all, was the author of Lee v. Weisman, the decision that specifically invalidated convocation prayer.
     
  • May 7, 2014
    Guest Post
    by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor of Law, University of Oklahoma College of Law
     
    If there is a silver lining to the rushed—and botched—execution of Clayton Lockett last week in Oklahoma, it is the national soul searching that it ignited over the place of the death penalty in our society. The public post-mortem has appropriately spotlighted the means by which the state attempted to kill Lockett—the injection of a secretly procured drug cocktail that failed to put him to death in the “humane” manner intended, but instead caused him to writhe in agony for over half an hour before he died of a traumatic heart attack. But hidden in plain sight was another troubling dimension to the double execution Oklahoma had planned for that night, with the second now on hold. Both condemned men were black.
     
    The mug shots of Lockett and the other condemned prisoner, Charles Warner, splashed across the front pages and screens of news outlets across the nation. They stared out at the viewer, expressionless, but not lifeless, bound to the same fate, and bound by race.
     
    It is no secret that race infects the death penalty. In the landmark case of McCleskey v. Kemp, which involved a challenge to capital punishment in Georgia as racially biased, the Supreme Court in 1987 acknowledged that capital sentencing “appears to correlate with race.” In fact, the correlations drawn by a seminal study of the death penalty in that southern state were stark: among them, a defendant was 4.3 times more likely to draw the death penalty if the crime involved a white victim rather than a black one, and the racial combination most likely to result in the death penalty was a black defendant and white victim. The Court rejected the challenge in a deeply divided 5-4 ruling, accepting that “apparent disparities in sentencing are an inevitable part of our criminal justice system,” but reasoning that “the Constitution does not place totally unrealistic conditions on its use.”