Until Midterm Elections...

Scott versus Scott

Welcome to our blog. Here we will debate the days most serious topics and allow users the chance to discuss the topics as well. The range of topics will vary, but one thing will remain certain, the debate will rage on. Scott Lesinski is a proud conservative and Scott Jones is a proud liberal. However, the roles will switch on some topics. Stay tuned.

Scott Lesinski is currently an actuarial associate for a large human resources and insurance consulting firm in Saint Louis. He is also an avid student of US history and enjoys following current events, with an eye to their contextual relationship to the past. He is also, in fact, a former student of Mr. Scott Jones. Scott is working toward his FSA credentials, which is akin to earning a PHD in Actuarial Science.

Scott Jones is currently a high school social studies teacher at a high school in suburban St. Louis, MO. He teaches World History, AP American Government and Senior American Foreign Policy. He has a BS. Ed. (Secondary Social Studies) from the University of Missouri - Columbia and a M.A. (History) from Southeast Missouri State University. He is currently working on a dissertation in character education to earn a Ph.D. in Educational Psychology.

Friday, July 31, 2009

Guns and Gays - What the Upcoming Supreme Court Might Term Mean

In all the media frenzy surrounding the Judge Sotomayor hearings, an interesting discussion on three very important cased the Court will be hearing this term has gone almost unnoticed.

The Court in the October 2009 term will be hearing three cases that could transform American jurisprudence for the future. Two of the cases are dealing with the application of the Second Amendment to the various States (NRA v. Chicago and McDonald v. Chicago) and third is closely related and deals with the right to self-defense (Maloney v. Rice).

However, the ruling of the Supreme Court on these three cases could have far-reaching effects beyond just guns and nunchucku.

I have no doubt that the conservatives on the Court have a desire to apply the Second Amendment to the States (this does not include Justice Kennedy because we can never be sure what side he will vote with), but they have a Constitutional dilemma on their hands.

The first problem deals with the language of the Constitution itself. The Founders included the Second Amendment as a check against the national government in much the same way they included such a check in the First, Third, Fourth, Fifth, Sixth, Seventh and Eighth Amendments and included the Ninth and Tenth Amendment to preserve power to the States that are not listed in the Constitution itself.

As the Twentieth Century progressed, the Court adopted the “incorporation doctrine” to apply many of the rights guaranteed in the Constitution to the States. This doctrine was laid out in Gitlow v. New York (1925) as the First Amendment was applied to the States by a 7-2 majority. The justification of this doctrine, according to the majority, was the “equal protection” clause of the Fourteenth Amendment. This move overturned the precedent set in Barron v. Baltimore (1833), which ruled the Bill of Rights only applied to the national government.

As time progressed, the incorporation doctrine began to include the “due process” clause of the Fourteenth Amendment, which was used in Mapp v. Ohio (1963), Miranda v. Arizona (1966) and Gideon v. Wainright (1963). At this time, conservatives began calling for the reigning in of these clauses in the Fourteenth Amendment.

This leads to the second problem conservatives have in trying to incorporate the Second Amendment. If they use the “equal protection” or “due process” clauses of the Fourteenth Amendment, they will become hypocritical due to the accusation they have leveled at liberals and their use of the Fourteenth Amendment, which has led to the label of liberal jurists as activists.

The only other mechanism the conservatives have would be the use of the “privileges and immunities clause” of the Fourteenth Amendment. However, this clause was rendered a dead letter in the Slaughterhouse Cases of 1873. This is the third problem, but one the conservatives might be willing to change in order to incorporate the Second Amendment to the States.

Article Four’s Privileges and Immunities Clause of the United States Constitution reads, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” While the Fourteenth Amendment similar Clause reads, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Furthermore, the Fourteenth Amendment defines citizenship as “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.”

The interesting difference between Article Four’s and the Fourteenth Amendment’s Privileges and Immunities statements is the use of citizenship. The main difference is that Article Four reserves citizenship to the States while the Fourteenth Amendment defines national citizenship as well.

The Slaughterhouse Cases deemed that only national rights applied to national citizens, which essentially declared the Fourteenth Amendment’s Privileges and Immunities Clause a dead letter since the Constitution does not mention the existence of national rights.

However, there seems to be a sentiment, especially among conservatives, to revisit the Slaughterhouse Cases. In his dissent in Saenz v. Roe (1999), Justice Thomas indicated he would be willing to revisit the 1873 cases if an appropriate case came before the Court. The three cases mentioned above for this term seem like they could be appropriate cases for such a reexamination.

I have no doubt the two Chicago cases will be prime examples for the conservatives to bring the Fourteenth Amendment’s Privileges and Immunities Clause back to life. While dancing around the issue in D.C. v. Heller (2007), the conservative justices will not be able to do so this time around. They will either rule that the Second Amendment is not applicable to the States (unlikely) or that since each state citizen is also a national citizen, each citizen of the United States will have the right to own a gun through the Fourteenth Amendment’s clause (likely).

While I might disagree with the nature of gun ownership, the activist legal philosophy behind this move is just as Constitutionally sound as decisions I have supported including Griswold v. Connecticut (1965) and Roe. v. Wade (1973). While the clauses of the Fourteenth Amendment used to develop a national right might be different, the application results are the same.

The most interesting discussion could occur, however, in Maloney. Mr. Maloney was arrested for having nunchucku, which are illegal under current New York law. However, advocates for Mr. Maloney have argued in the petitioner’s merit brief, that Mr. Maloney owned the Asian weapon for self-defense purposes only and, they further argue, the right to individual self-defense is part of the Second Amendment.

This is where it gets interesting because nowhere in the Second Amendment, nor anywhere else in the Constitution, is a right to individual self-defense mentioned or hinted at by the Founders. The Second Amendment mentions the right of a State to defend itself (“well regulated Militia, being necessary to the security of a free State”). However, the amendment says nothing as to the right being a national right. The "right of the people to keep and bear arms" is a freedom from the national government infringing on the right, which Heller made perfectly clear on the DC handgun ban. There is, however, nothing in the text of the amendment nor in the discussion by the Founders that implied the states would not be able to restrict gun rights. Therefore, there is nothing in the Constitution or the writings of the Founding Fathers that mentions a national right for guns and self-defense. This is a power reserved to the various States.

The only rational basis for creating a national right to self-defense would be the fact that 47 States specifically mention the right to self-defense in their State constitutions. Therefore, in order to protect the “privileges and immunities” of United States citizens moving across State boundaries, the right to self-defense must be nationalized.

Again, it would be hard for me to complain about this activist legal reasoning just because I believe in gun regulations. After all, this is almost the same reasoning that was used to create the national right to privacy in Griswold, albeit with the use of a different clause from Section 1 of the Fourteenth Amendment.

In Griswold, the Court reasoned that the Founders strongly supported a right to privacy (it is mentioned in two-thirds of the Federalist Papers). In addition, 45 States specifically listed a right to privacy in their constitutions. The Court then nationalized the right as it extended the privacy right to include medical records, especially in the areas of contraception and conception. This reasoning matches Maloney and a right to privacy almost perfectly. The only difference being is that the liberal jurists supported Griswold and the conservative jurists line up in favor or Maloney.

What I find interesting, is that a favorable ruling for Mr. Maloney would create a unanimous Court for creating new national rights that are not found in the text of the Constitution. Whether it be the use of the Privileges and Immunities Clause, the Equal Protection Clause or the Due Process Clause, the Court would be unanimous in its activism.

This brings me to gay marriage. Since every State allows for marriage and each citizen of the United States is guaranteed the full “privileges and immunities” afforded to citizens of a certain State and gay people are also citizens of the United States, then it should follow that no State can deny a gay couple the right to marry so long as they allow any type of marriage within their State boundaries.

The reasoning is the same and the logical conclusion supports both the conservative and liberal constitutional philosophies. To agree with one application and disagree with the other is to not let the facts judge themselves, which is what justices are supposed to do, right? Any other conclusion would show a bias towards guns or gay marriage and bias does not exist in the conservative world.

Who could have predicted that the right to gay marriage and the right to own a gun for self-defense were so connected? Of course, Justice Kennedy could destroy my entire post by voting with the liberal justices in all three cases.

This is one umpire’s view of the Constitutional questions brought forth and the Court’s upcoming cases.

22 comments:

  1. As a footnote -

    If there is no national right to self-defense, there is no national right for gun ownership.

    The petitioners in both Chicago cases clearly appeal to the Supreme Court in their merit briefs on the self-defense and national gun rights connection.

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  2. SJ, I fail to understand that last implication.

    The right of the people to keep and bear arms shall not be infringed.

    That is a national law. I'm fairly sure about this...but does the Constitution not say that where State laws come into conflict with Federal laws, the Federal law will supercede?

    Therefore, it is very clear that we have a national right, as US citizens to keep and bear arms, and where a state (or city) law conflicts, the Constitution will win out.

    Where is this unclear? I do agree that there is no explicit right to self-defense, as there is no explicit right to privacy, defined in the Constitution. However, that antecedent of your statement does not preclude the consequent.

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  3. Come on Scott, I know you paid better attention than this...The Bill of Rights applied only to the national government as a check on its power. They DID NOT apply to the States. Federal law only trumps state law on areas of national power, which the Second Amendment is a check against. There is nothing in the Constitution about the various States regulating guns. This is where the Second Amendment must be incorporated like the other amendments have been. The only way conservatives can incorporate the Second Amendment and not by hypocrites is to create the self-defense right through the Privileges and Immunities Clause, which would then open up the Bill of Rights in ways that conservatives would probably be uncomfortable with (i.e. gay marriage). That is my point. All I ask for in consistency in philosophy. I hope the conservatives on the Court will be consistent with gay marriage as they want to be with guns.

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  4. So what you are saying is that even though the Constitution says that we have a right to keep and bear arms, if the several States wanted to impose restrictions on gun ownership or outright ban guns totally, the Constitution would be "okay" with that?

    Im just confused. It does not read the same as the first amendment that states "congress shall make no law...etc etc"

    It just comes out with "The right of the people to keep and bear arms shall not be infringed."

    When it comes to gay marriage, here is another area where I am confused.

    The term "marriage" is so ingrained into society as to what it means ("straight" marriage, if you will) that we have to now say "Gay marriage".

    Gay people have every right to get married, but marriage is a union of a man and a woman.

    I know that for tax purposes, last rites, hospital admissions, etc, that our government bestows favorable treatment on marriage. I don't see what the problem is with Civil Unions.

    Anyways, I still can't understand why the Court would have to "impose" the Second Amendment on the states. It surely seems as though that has already been done by the ratification of the US Constitution.

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  6. The United States Constitution sets up the framework of the federal government, and thus any amendments to that constitution apply only to the federal government.

    So yes, Scott, the U.S. Constitution allows an individual state to regulate just how armed its citizenry is.

    And no, you don't have to call a marriage between two people who identify as the same gender a "gay marriage." Just call it a marriage, because that's what it is.

    And although a civil union may carry an identical legal status as a marriage, it creates the opportunity for much in the way of continued social bigotry. After all, since a civil union isn't "really" a marriage, it's inferior amirite? It becomes a problem of social legitimacy.

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  7. As far as gun ownership, per the Heller case in DC, it sure looks like the Constitution may not define what kinds of guns we can keep or what process we may have to submit to in order to procure one, but we have a right to own guns. So while states may have different rights for concealed carry say, they all must permit us some right to arm ourselves.

    And if you want to get married then get married. Just realize that marriage is the union of a man and a woman, as it has been defined for ages. When you have to start redefining marriage to permit two men or women (or a man and three women, etc), you aren't dealing with the same marriage that we started with.

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  8. Where is the one man-one woman idea based? If I remember my Old Testament, marriage was betwee one man and as many women as he could afford? The idea of one man and one woman is European. Marriage has changed over the years depending on the culture involved. Western tradition versus Judeo tradition are two different versions. Therefore, we can define marriage however we want in our society. The historical record will support whatever we choose (the Greeks accepted marriage between two men).

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  9. Ah yes the Greeks. Great civilization these days eh? Oh wait...how silly of me.

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  10. "Ah yes the Greeks. Great civilization these days eh? Oh wait...how silly of me."

    You didn't confront J's argument. Marriage is not something that is defined on its own...it is defined by society. On what do you base the "one man and one woman" restriction?

    Are you saying that the Greeks' decline is BECAUSE of the presence of homosexuality and its accepted role in Greek society?

    "When you have to start redefining marriage to permit two men or women...you aren't dealing with the same marriage that we started with."

    And why aren't you? Isn't marriage defined as a social contract made between two human beings who (hopefully) love one another? Why must one have a penis and the other a vagina (functional or otherwise)? Is that necessary for real, valid love between two people?

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  11. And although I am for gay marriage, I do not follow the logic of your argument in the paragraph below, J.

    "This brings me to gay marriage. Since every State allows for marriage and each citizen of the United States is guaranteed the full “privileges and immunities” afforded to citizens of a certain State and gay people are also citizens of the United States, then it should follow that no State can deny a gay couple the right to marry so long as they allow any type of marriage within their State boundaries."

    Doesn't the "privileges and immunities" clause guarantee that a given state will afford visiting citizens of other states the same treatment as its own? I don't know how that offers any kind of assistance in arguing for the logical existence of gender-agnostic marriage.

    Are you essentially saying that if one state allows for and recognizes marriages between two people regardless of gender or sex, then all other states must follow suit? I don't know how that can be argued.

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  12. The right to self- defense to me is not the same as the right to bear arms. Personally I think bearing guns should be illegal. Our society is too crooked and with each day passing it is getting darker and darker. If the government allows people of any kind to start purchasing guns how long will it be before they are misused?

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  13. I too agree that self-defense is not the same as right to bear arms. I think guns should be legal due to the wrong people ending up with guns in our society.I feel that everyone should be able to protect themselves due to the society we live in.

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  14. As far as gay marriage is concerned I say it is wrong and that it sends the wrong message. God created man and woman to be united with each other. Outside of that do you see any other creations that aren't male and female? I do not think gay people should be allowed to marry or adopt or have children. This society is so screwed up people have lost their ability to think straight and make proper decisions. Everyone has this "me" mentality and no one thinks about what this does to children and the type of message it sends. I am not saying you can't love who you want,but it still has to have some boundaries. Just because you can doesn't mean you should.

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  15. I agree with maciiw...I think that people do need to have the right to protect themselves. In our society these days, you can not trust anyone. You never know what people's intentions are or what others are dealing with. I do think that guns should just be legal. Most of the people that have guns now probably have them illegally anyways. Everyone should have the right to bear arms if they wish, as a right of self-defense.

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  16. The bible says that marriage is between and man and a woman. This is true, but that does not mean that if you are gay, you do not believe in the bible. Religion is a wired thing. You can be religious, and still not follow every aspect of the religion. Take a look at being catholic. Catholics do not believe in sex before marriage, but you still have a sexual relationship before marriage. Are you still catholic? Yes, you just do not follow all the rules. People commit adultery everyday, are they banned from the church? No. So why does marriage have to be between a man and a woman? The bible says so…well the bible says that we should not kill, commit adultery, have a sex before marriage, and people still do that. I am not gay, but if I had a child who was truly gay, I would not love him or her any less. It is a preference, and people can not help who they are attracted to. If a person is happy, what difference does it make? It shouldn’t. Parents want to see that their children are healthy and happy, and that is all that matters. I saw on Nation Geographic that there is a direct relationship between being gay and science. If the fetus was not exposed to enough testosterone, then he can not help being attracted to testosterone. That is purely science, and can not be help. We are in the 21st century, who are we to decided who and whom we should marry?

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  17. "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."

    Originally, the 2nd amendment was designed to keep governments from getting too strong and becoming tyrannical; the last resort (hopefully) of an oppressed people would be to protect their lives and livelihoods by the use of force. This was surely a reaction against the actions of the British government of the time.

    Have things really changed since that time (in reference to weapons)? I think so. For one thing, the government is not in the practice of sending its armies through the streets to collect taxes anymore. They have more insidious ways of collection: debilitating litigation. The people who buy guns now aren't looking to protect their civil liberties, they are thinking about capping another citizen (whether for protection or criminal purposes).
    Guns make me nervous. I know that's not a good argument against gun ownership, but it explains the general feeling of violence prompted by the liberal sprinkling of guns in our neighborhoods. People need to feel safe and protected in their homes, but in many ways I think guns make a home less safe.

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  18. I agree with Melissa that gay marriage should be allowed. There are same sex couples that are functioning better in society than your typical couple. Religious beliefs shouldn't play a factor in this decision because everyone has different perceptions. There are religion believers who believe you have to be in church every sunday and say daily prayers and follow the words of higer power pretty close, then you have the religion believers who have the attitude of as long as I am not murdering, robbing or torturing anybody I am a good person. Everybody sins and something as innocent as gay marriage should be legalized. How can anybody have the argument of you have to look at the children, well most of america is divorced or a single parent, at least the kid would have two parents. If they can provid a happy safe environment(this goes for any couple, I do not see the harm.

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  19. This whole gay marriage concept really bothers me. I do not believe that people of the same sex should be allowed to marry for far more reasons than just the Bible. The reasons I believe same sex couples shouldn't marry is because one it is against what GOD has instituted, two it is morally wrong and unnatural, three it takes family to a whole new meaning, and fourth what does it say to our children today.You can love who you want, but to marry is not appropriate. Once again we as a people are selfish and want what we want at any cost. We don't stop and think about how this might affect someone else.What people really need to do is figure out why they are gay and deal with that issue instead of embarking among something that is so out of control.

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  20. Since one of the topics in this blog has to do with gay and same sex marriages I would like to bring to light another topic of interest.

    This weekend while at my usual Sunday church service I noticed a page drawn up and written by Dr. Gerald B. Kieschnick, President of The Lutheran Church-Missouri Synod.

    It seems that there is a huge battle going on between the two largest Lutheran church bodies in the United States. They are the Evangelical Lutheran Church in America (ELCA) with 4.8 million members and The Lutheran Church-Missouri Synod (LCMS) with 2.4 million members.

    On Friday, Aug. 21, the Churchwide Assembly of the Evangelical Lutheran Church in America voted to open the nimistry of the ELCA to gay and lesbian pastors and other professional workers living in "committted relationships." In an earlier action, the assembly approved a resolution that commits the ELCA "to finding ways to allow congregations that choose to do so to recognize, support, and hold publicly accountable life-long, monogamous, same-gender relationships."

    The Lutheran Church-Missour Synod has repeatedly affirmed as its own postion the historical understanding of the Christian church that the Bible condemns homosexual behavior as "intrinsically sinful." It is therefore contrary to the will of the Creator and constitues sin against the commandemts of God (Lev. 18:22, 24, 20:13; 1 Cor. 6:9-20; 1 Tim 1:9-10; and Rom. 1:26, 27).

    Dr. Gerald Kieschnick went on to address the ELCA assembly on Saturday, Aug. 22, "I responded to their aforementioned actions, stating: The dicisions by this assembly to grant non-celibate homosexual ministers the privilege of serving as rostered leaders in the ELCA and the affiramtion of same-gender unions as pleasing to God will undoubtedly cause addtional stress and disharmony within the ELCA. It will also negatively affect the relationships between our two church bodies. The current division between our churches threatend to become a chasm. This grieves my heart and the hearts of all in the ELCA, the LCMS, and other Christian church bodies througout the world who do not see thses dicisions as compatible with the Word of God, or in agreement with the consnsus of 2,000 years of Christian theological affiramtion regarding what Scripture teaches about human sexuality. Simply stated, this matter is fundamentally related to significant differences in how we [our two church bodies] understand the authority of Holy Scripture and the interpretation of God's revealed and infallible Word."

    Doctrinal decisions adopted already in 2001 led the LCMS, in sincere humility and love, to declare that we could no longer consider the ECLA "to be an othodox Lutheran church body" (2001 Res 3-21A). Sadly, the decisions of this past week to ignore biblical teaching on human sexuality have reinforced that conclusion. We respect the desire to follow conscience in moral decision making, but conscience may not overrule the Word of God.

    This was written entirely by Dr. Gerald B. Kieschnick, President
    The Lutheran Church-Missouri Synod
    August 24, 2009

    Here is my opinion on this matter. I believe myself to be a somewhat open minded individual. I believe that people should have the right to do as they please sexually, because honestly it's really none of my business. However, the thought and idea of gay or same sex pastors being allowed to speak the word of God, and allowed into postions of power in the church completly wrong in every way. It clearly states in the Bible that God obviously frowns upon homosexuality. Do what you want in your own homes, but do not bring it into the house of the Lord and try to say it's ok. This is simply my opinion and I am certainly not trying to stomp on gay people with this. I am simply saying that it is just wrong to allow homosexuals to teach and speak the Word of God, when the Word of God says NO to homosexuality.

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  21. I agree with most of the previous posts. I have absolutely no problem with homosexual people. I really do not care what people do with there own personal life. The problem I have is when homosexual people are open about their relationship in public, especially in front of young children. I believe that this sends the wrong message to youngsters. I know that if I was at the store or the movie theatre with my children, I would not want two men kissing all of eachother, in front of my children. That is just wrong to me. Now, what they do in their own home or in private, is completely fine with me.
    I also agree with tikim that homosexual people should not be able to preach the word of the Lord in church. That just sounds wrong.

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  22. I too agree with most of the previous posts. I o have absolutely no objection with gay marriages or homosexual people. I believe that God made everyone different for a reason. If homosexual people find happiness with each other then so be it. I do however object to homosexual people being open in the public's eye with their relationship. I don't think that it is right for them to show their affection towards each other other than holding each others hands in public. I think that children would get the wrong idea if they saw homosexuals kissing each other or fondeling each other.
    As for homosexuals preaching the word of God in church, I have mix emotions on the subject. I don't think that there is a right or wrong answer to the issue. There are many things to factor in.

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