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Tag: Supreme Court


The African-American Second Amendment

Clarence Thomas – standing alone in a concurring opinion – took the most fascinating position in the Supreme Court’s Second Amendment decision this week.

It has to be one of the blackest writings ever to come out of the court, including anything authored by Thurgood Marshall. In arguing that gun ownership is “essential to the preservation of liberty,” Thomas dwells on the long and horrifying history of white massacres of unarmed or poorly armed African Americans in the South, especially after Reconstruction fell apart following the Civil War.

Thomas particularly execrates the United States v. Cruikshank decision of 1876, in which the U.S. Supreme Court held that the federal First Amendment and Second Amendment didn’t protect citizens against actions of state and local governments.

The context is important: The case arose from the infamous Colfax Massacre, in which more than 100 blacks were killed by a white militia after they tried to guard the local courthouse against a takeover by pro-slavery Democrats.

Excerpt from his opinion:
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An individual right to bear arms – within reason

This editorial will appear in tomorrow’s print edition.

The U.S. Supreme Court’s new ruling on the Second Amendment won’t likely shatter this state’s gun regulations.

The decision closely tracks Washington’s equivalent of the Second Amendment. “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired,” says the state constitution.

That “individual citizen” idea has triggered all the furor over the Second Amendment.

Because the amendment also mentions “a well-regulated militia,” opponents of an individual right have argued that the framers intended to guarantee a collective privilege of bearing arms – a privilege that withered away with the old-time militias or perhaps still survives in the hands of the modern National Guard.

In recent years, that argument has taken a beating from historians and respected constitutional scholars.

State charters adopted in the decades after the Bill of Rights was ratified specified that the right was individual in nature. In the rest of the Bill of Rights, the word “people” means individuals. It’s hard to turn around and argue that “people” excludes individuals in the Second Amendment.
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How the justices broke on the R-71 decision

People who take a “Rah, rah, our team won!” approach to Supreme Court decisions may overlook some important things about Thursday’s ruling about public disclosure and Referendum 71.

Attorney General Rob McKenna, who defended Washington’s Public Records Act, won a battle he shouldn’t have had to fight.

The people who collected signatures to put R-71 on the November ballot had asked U.S. District Court Judge Benjamin Settle to prevent the state’s release of their petitions. Settle granted the injunction on astonishingly broad grounds, holding that they were likely to succeed in arguing that the First Amendment could require that any petition – not just theirs – be sealed upon request.

That conclusion seemed absurd, but the high court took the claim seriously enough to review it. McKenna wound up having to play defense in a game with very high stakes.

Thursday’s ruling was a matter of dodging an asteroid few people had seen coming. As far as R-71 – by itself – is concerned, the fight remains to be fought in a trial court. It will turn on whether the petitioners can produce believable evidence that they were genuinely threatened by gay-rights supporters.
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Elena Kagan: Perfect nominee, no; qualified, yes

This editorial will appear in tomorrow’s print edition.

Barack Obama is in a poor position to expect bipartisan deference to his Supreme Court picks, having voted as a senator against the confirmations of both John Roberts and Samuel Alito.

Still, the Senate ought to respect his nomination of U.S. Solicitor General Elena Kagan, barring evidence of intellectual deficiencies, extremism or character flaws.

Kagan doesn’t look vulnerable on any of those scores. She was vetted pretty thoroughly a year ago when the Senate approved her appointment as the U.S. government’s chief legal advocate. And she’s clearly got enough smarts for the high court.

She began her meteoric legal career by clerking for Justice Thurgood Marshall, then quickly ascended to full professor at the University of Chicago Law School. From there, she moved into high level positions in the Clinton administration, then became dean of Harvard Law School.

Kagan’s lack of experience as an actual judge is the most probable line of attack from Republicans. But her résumé is distinguished by any standard, and she’s intimately acquainted with the upper reaches of American law. If anything, she’s spent too much of her life flying in the legal stratosphere.
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Where did the Protestant justices go?

If Elena Kagan – a Jew – replaces Justice John Paul Stevens – a Protestant – on the Supreme Court, the court will consist of six Roman Catholics and three Jews. Protestantism, still the country’s majority religion, will be completely shut out for the first time in American history.

An obvious reason is that religious affiliation has become far less important in politics than it once was. As recently as 1960, Protestant clergymen were alarmed that John F. Kennedy would be in cahoots with the Vatican if elected president. (They should have been more worried about him being in cahoots with a string of floozies.)

But no one’s been seriously attacking presidential and Supreme Court nominees on the basis of religion as long as I can remember. Protestants – who split roughly between conservative evangelicals and members of more liberal “mainline” denominations – don’t speak with one voice, if they ever did. The evangelicals certainly don’t seem to be complaining about the five Catholics who constitute the conservative wing of the court. Whatever their theological differences, they can’t quarrel with results.

But why the disappearance of actual, certifiable Protestants? The mainline brand-name denominations – Episcopalians, Methodists, etc. – have been collectively shrinking in size and becoming far less of a factor in the country they once dominated.

Yet the ranks of evangelicals (I’m loosely including fundamentalists and Pentecostals) have been growing apace. Where the heck are they?
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Let the public follow the political money trail

This editorial will appear in tomorrow’s print edition.

We’d gladly trade any number of rules that try to micromanage campaign donations and spending in exchange for one thing: disclosure.

Full disclosure. That means telling the citizens exactly who is paying to buy the ads, mount the attacks and swing the election.

It means not merely naming political committees – which may be front organizations – but also naming the individuals who gave to those committees. It means doing this in real time, as the money shows up in campaign coffers, not letting political operatives keep voters in the dark until after the votes are counted.

Democracy presupposes an informed electorate, and the Internet can now make the electorate more informed than ever. That’s why the aggressive disclosure provisions in a new bill introduced last week by Sen. Charles Schumer, D-N.Y., ought to be enacted in time for the 2010 election season.

The bill is part of a Democratic attempt to curb the effects of a January U.S. Supreme Court ruling that struck down longstanding limits on corporate campaign spending. Democrats fear that titans of industry will now pour fortunes into Republican candidacies; Schumer says that some CEOs won’t want the public and shareholders to see what would otherwise have been covert political operations.
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R-71 case reaches far beyond Washington’s borders

This editorial will appear in tomorrow’s print edition.

Most people discussing the Referendum 71 lawsuit obsess over whether Washington State can or should release the identities of citizens who signed the petitions to repeal last year’s “everything but marriage” gay rights law.

But as Wednesday’s arguments before the U.S. Supreme Court made clear, the campaign to put R-71 on the ballot is only a tiny part of what’s at stake here.

The arguments pitted public disclosure opponent James Bopp Jr. against state Attorney General Rob McKenna, who was defending Washington’s Public Records Act. If Bopp ultimately prevails, the rollback of disclosure would only begin with R-71.

He and the groups he represents claim that the release of signatures is inherently a violation of the signers’ First Amendment right to anonymous political speech. So if five of the nine justices buy into the full reach of his arguments, government agencies will be constitutionally forbidden from telling the public who signed initiatives and referendums. Disclosure would be barred for any initiative or referendum, on any issue, in any state, city or other jurisdiction.

Most of the furor over this case has focused on the petitioners’ fears of personal harassment from gay-rights advocates, several of whom idiotically triggered the whole legal battle by threatening signers with “uncomfortable conversations” and the campaign sponsors with outright harm.

But McKenna, defending the Public Records Act, put his finger on the core issue: the public scrutiny necessary to ensure government integrity.
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A bigger role for big money in U.S. politics

This editorial will appear in tomorrow’s print edition.

So corporations and unions are short on opportunities to sway elections? Radio and television aren’t saturated enough with vicious hit jobs on the candidates they oppose?

Such is the logic of the U.S. Supreme Court, which shook decades of once-settled law Thursday by striking down crucial limits on corporate “campaign speech” – i.e., campaign spending.

The court’s five-member conservative majority overturned major precedents, a key provision of the McCain-Feingold campaign finance reform bill, and much of a 63-year-old law that barred companies and unions from raiding their general treasuries to mount media blitzes for or against specific candidates.

And just in time for this year’s congressional elections. Expect moneyed interests to play an even bigger role in the looming political battles than they had in the past.
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