A recent Supreme Court case involving gun rights raises curious parallels—and incongruities—with several religious liberty cases that touch on the same constitutional issues regarding state’s rights, individual rights, and the powers of the federal government.
In the case of McDonald v. Chicago, the Supreme Court declared that the Second Amendment protects an individual right to bear arms, and that this fundamental right applies in all 50 states and their various municipalities. The Second Amendment previously applied only to the federal government—restricting only Congress from passing laws infringing on the right to bear arms. In McDonald, the Court ruled to “incorporate” the Second Amendment, meaning the amendment now applies to all state, municipal, and federal jurisdictions.
The issue of incorporation was also raised in the context of the First Amendment’s Establishment Clause—“Congress shall make no law respecting an establishment of religion.” In Elk Grove Unified School District v. Newdow, Justice Clarence Thomas opined that the First Amendment’s Establishment Clause should not be incorporated. This, in contrast to the conservative justices’ views on gun rights, means that individual states would be free to make their own laws on certain matters respecting religion, such as the placement of religious symbols in public places, prayers at high school graduations, and the content of school curriculum.
Thomas, taking a “textual” or “originalist” view of the Establishment Clause, interprets its intent as primarily to protect state religious establishments that still existed when the Bill of Rights was drafted. Several New England states, for example, maintained the Congregationalist Church as the official state religion well into the 19th century. Massachusetts did not do away with its Congregational establishment until 1833; Connecticut disestablished in 1818.
“I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. But the [First Amendment’s] Establishment Clause is another matter,” Thomas wrote in Newdow. “The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause.”
Thomas’s view of Establishment Clause backtracks on longstanding Supreme Court precedent. In 1947, the Court incorporated the Establishment Clause in the landmark case Everson v. Board of Education of the Township of Ewing. Following Thomas’s view, under an unincorporated Establishment Clause, states could theoretically re-establish state churches—or take lesser action respecting that end.
“Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws ‘respecting an establishment of religion’; it must not interfere with a state establishment of religion,” Thomas wrote in Cutter v. Wilkinson. “For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion.”
Although Thomas argued against incorporation in these two religious liberty cases, in McDonald v. Chicago Thomas sided with his fellow conservatives—thus taking the opposite view in regards to incorporation of the Second Amendment.
Thomas is not alone in promulgating theories that seemingly flip-flop from amendment to amendment. On his opposing ideological side, Justice John Paul Stevens upholds the incorporation of the Establishment Clause, but his opinions on the Second Amendment bear a close resemblance to Thomas’s words on the First Amendment. “By its terms, the Second Amendment does not apply to the States; read properly, it does not even apply to individuals outside of the militia context,” Stevens wrote in McDonald. “The Second Amendment was adopted to protect the States from federal encroachment.” (Compare to Thomas on the First Amendment: “The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments.”)
Although Thomas’s vision of a selectively incorporated First Amendment is generally considered extreme, the general concept of selective incorporation is not.
Prior to the Civil War, the Bill of Rights was applied only to the federal government and not the states. After the Civil War, the Fourteenth Amendment was adopted in order to, among other things, prevent Southern states from backsliding on citizenship rights granted to former slaves. Through the Fourteenth Amendment’s Due Process Clause, most—but not all—elements of the Bill of Rights have since been applied to the states.
The landmark Slaughter-House cases (1873) put the brakes on full incorporation and set the precedent for selective incorporation. Selective incorporation, following court precedent, exempts states from certain procedural aspects of the Bill of Rights, such as the Grand Jury Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment.
As Justice Sonia Sotomayor summed up in oral arguments in the McDonald case, “our selective incorporation doctrine under the Due Process Clause does suggest that there are some rights that were fundamental enough to be incorporated and some that are fundamental, but not fundamental enough to be incorporated. We have drawn a line.”
The plaintiffs’ legal strategy in McDonald sought to overturn the Slaughter-House precedent, thus triggering a wholesale incorporation of the Bill of Rights—not just the Second Amendment. However, the Court declined to overturn Slaughter-House, and instead focused on the theory of “ordered liberty”—whether the Second Amendment right is “fundamental to the American scheme of ordered liberty and deeply rooted in this Nation’s history and traditions.” The Court’s answer, by a narrow 5-4 vote, was “Yes.”
If the Court had taken the route of overturning Slaughter-House, thus incorporating the entire Bill of Rights, Thomas’s idea to selectively unincorporate the Establishment Clause would be moot.
Arguments in the McDonald case, and Thomas’s opinions in Newdow and Cutter, bear some striking similarities. According to Thomas, the primary purpose of the Establishment Clause is to “prevent Congress from interfering with state establishments.” Similar arguments are commonly made regarding the purpose of the Second Amendment: “One function of the Second Amendment is to prevent the national government from interfering with state militias,” Judge Frank H. Easterbrook, chief judge for of the Seventh Circuit Court of Appeals, wrote for Court in NRA v. Chicago (a combined case with McDonald).
But incorporation of the Second Amendment and incorporation of the First Amendment’s Establishment Clause cut in different ideological directions: Incorporation of the Second Amendment (an idea generally promoted by conservatives) prevents state governments from infringing on the right to bear arms. Incorporation of the Establishment Clause (a liberal approach) restricts state governments from doing as they wish in matters respecting religion.
The conservative Court now considers gun ownership an individual right—as opposed to the collective right of a state’s militia. By contrast, Thomas’s theory against incorporation of the Establishment Clause is based, in part, on his belief that it does not represent an individual right, as he opined in Newdow.
The situation shows, yet again, that the concepts of judicial activism and judicial restraint are moving targets. While only the most conservative—or perhaps radically conservative—legal theorists would support unincorporation (or partial incorporation) of the Establishment Clause, the conservative members of the Supreme Court are leaning in favor of incorporation of the Second Amendment. Thus, a conservative court can become an activist court in order to achieve its own particular ends, just as earlier liberal courts have done.
Bruce T. Murray is the author of Religious Liberty in America: The First Amendment in Historical and Contemporary Perspective, published by the University of Massachussetts Press. He is a veteran daily journalist (most recently at the Los Angeles Times) who began as a contributing writer to the Santa Barbara Independent after graduating from UCSB. He is currently president of Web Sage Publishing, and a student at the California Western School of Law in San Diego.
Comments
The constitution gives the states individual choice in religious matters. It also argues for the right to bear arms. Whatever Thomas, Sotomayor, or others may opine is after the fact.
What politicians, as well as people with personal agendas try to do is to complicate things to the point where some slick interpretation of a simple deceives people away from the intent of the original document.
What I find interesting is that knee-jerk lefties (as opposed to thinking Progressives--Paul Berenson comes to mind as a local example) will rightfully wail about police brutality yet think disarming the public is the way to go. How interesting that these people are so emotional that they fail to see that disarming the public ensures a government/police-run totalitarian state.
billclausen (anonymous profile)
August 1, 2010 at 4:04 a.m. (Suggest removal)
Leonard W. Levy is his book, "Origins of the Bill of Rights" discusses the one thread that ran through the Founders Generation as Personal Liberty, did not matter if you were Federalists or Anti-Federalist the common goal was the Natural Rights of Man, rights that preexist any form of Government. The Founders clashed on how to best secure these rights without them becoming mutated. In order to appease Thomas Jefferson (AF), James Madison (F) thoughtfully looked at the existing Constitutions of the founding Colonies and human history, producing what we call the Bill of Rights, the first 10 amendments to the Constitution. Thomas Jefferson and his anti-Federalists feared the Oligarchy that we have almost become and wanted the Rights memorialized as a deterrent to the Centralized Power now wielded by the Federal Government.
All one has to do is read the Federalist and anti-Federalist Papers to understand the discussion was about mechanics not the desired result, They were all on the same page as to the desired result, Personal Liberty and Freedom.
The mutations of the Constitution revolved around laws that deprived Black Americans their Natural Rights, Rights of Self-Defense and so on. Even after the Civil War those Rights were still denied by the Southern States, so we have the 14th Amendment to the Constitution. The passage of the 14th Amendment gave rise to a slew of firearms laws designed to deprive Black Americans their Rights and badly decided Court Cases such as Slaughter House did the same.
The opinion of Judge Thomas in McDonald deals with Slavery and the unconstitutional injustice done to Black Americans before and after the Civil War. Judge Thomas writes as a Civil Rights Activist, examining the trail of tears faced by the Black Man in America, not the "Conservative Two-Face" the author makes him out to be.
I invite your readers to read the opinion themselves,
McDonald v Chicago
http://www.supremecourt.gov/opinions/...
search "opinion, Thomas"
The origin of Firearms Laws in the United States was "Racist"
howgreenwasmyvalley (anonymous profile)
August 3, 2010 at 3:38 p.m. (Suggest removal)
"Leonard W. Levy is his book, "Origins of the Bill of Rights" discusses the one thread that ran through the Founders Generation as Personal Liberty, did not matter if you were Federalists or Anti-Federalist the common goal was the Natural Rights of Man,"
Not only that, but different religious views were represented as this list of signers of the constitution shows. Note: not all the names you click on provide information about the signers religious beliefs.
http://www.nndb.com/gov/242/000049095/
billclausen (anonymous profile)
August 3, 2010 at 6:41 p.m. (Suggest removal)
It would be more honest if gun apologists kept to arguments about street crime, even if they're irrelevant to what the Constitution actually says, and drop the nonsense about how private citizens having guns will protect against political tyranny. It's pure wet-dream apocalyptic fantasy to think that a bunch of puffed-up posturing fanboys could make the slightest difference if a totalitarian government wanted to use force to take their guns away.
pk (anonymous profile)
August 3, 2010 at 11:14 p.m. (Suggest removal)
PK: "the right of the People to keep and bear arms shall not be infringed."
What is your argument against that?
Also, how do you respond to the following links: (per your crack about "fanboys") http://www.jpfo.org/ and http://www.2asisters.org/
So are all pro-constitutionalists "fanboys" rednecks, and testosterone-crazed imbeciles?
billclausen (anonymous profile)
August 4, 2010 at 2:47 a.m. (Suggest removal)
I don't see the words "rednecks" or "testosterone-crazed imbeciles" in my post. Projection on your part, perhaps? Nor did I say anything in opposition to the Amendment, not even the part that you forgot to mention. Criticizing someone for things they didn't say is a great way to win an argument in your own mind, but it doesn't count for much in the real world. I was pointing out the foolishness of claiming that the carrying of guns in this age has anything to do with defending this free state against political tyranny, domestic or otherwise.
pk (anonymous profile)
August 4, 2010 at 7:22 a.m. (Suggest removal)
Lets get back to Justice Thomas. Justice Thomas was the only one of the Nine that had the Courage to revive the Privileges or Immunities Clause of the 14th Amendment and call Slaughterhouse what it was, bad law.
The 4 on the left appear to suffer from Hoplophobia and or Homophobia the 4 on the right seem outright Homophobic taking the cowards way to Incorporation, with Due Process.
Libertarian attorney Gura argued before the august body for P or I but was was willing to take Due Process. P or I would have changed many laws in the United States with a much broader brush than just the 2nd Amendment. With P or I and the laws restricting Gay Marriage would have become unconstitutional.
Only Thomas stood on honest ground, he stood alone for the Rights of all Citizens. Reversal of Slaughterhouse, revival of P or I would have been far reaching. The Left could not get over their Hoplophobia to join with Thomas and revive P or I, says a lot about their character.
With P or I the Gay Rights Marriage issue would have been settled.
"The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
howgreenwasmyvalley (anonymous profile)
August 4, 2010 at 8:25 a.m. (Suggest removal)
"I don't see the words 'rednecks' or 'testosterone-crazed imbeciles' in my post. Projection on your part, perhaps? Nor did I say anything in opposition to the Amendment, not even the part that you forgot to mention."
Projection indeed as far as the words, but given your open contempt for people who carry guns--or is it only open carry as opposed to concealed carry?...only you can clear that question I have up.
"I was pointing out the foolishness of claiming that the carrying of guns in this age has anything to do with defending this free state against political tyranny, domestic or otherwise. "
I disagree with you, and here's why: if someone is being stalked by a psycho ex- boyfriend/girlfriend/spouse who is bent on killing them, what good is calling the cops going to do when that person is already in your living room with a knife and coming at you? Also, I assume (yes, I'm projecting) that you live in Santa Barbara or somewhere nearby but what if you lived in Compton or some other place where violence or your risk of getting carjacked was an everyday part of life? I say YOU are the one who should make the decision per the choice of being armed, NOT the government which consists of people who live in Ivory Towers who do not have to face those terrors.
A cursory glance at human nature shows that if these carjackers and other thugs knew that a significant portion of the populace was armed, they'd think twice before going after their innocent victims. (And even with anti-gun laws these thugs often still obtain these weapons.)
I finally present the Virginia Tech Massacre where this educational establishment had previously bragged about how they were a gun-free zone. That made it amazingly easy for the gunman to walk into one room after another and gun people down. As I remember, it took the cops forever to find the gunman.
Guns, like booze and drugs, have been targets for prohibitionists for years, but as the prohibition against the latter two have shown, you still can't keep them off the streets.
If you hate the idea of people carrying guns, go ahead and do so, but the constitution DOES apply, despite the headline.
billclausen (anonymous profile)
August 4, 2010 at 4:18 p.m. (Suggest removal)
Bill
Your reply is a perfect example of what I meant in writing about your fondness for criticizing people for saying things they didn't say and completely missing the point of what they did say.
First, I have not expressed contempt for people who carry guns, openly or otherwise. Second, I have not expressed any hatred of the idea of people carrying guns. I have said that I find it extremely foolish for such people to claim that their doing so protects this nation against political tyranny.
You continue to talk about, stalkers, carjackers, psychotic mass murderers, but none of that is even remotely related to the what I was talking about: the sort of political tyranny the writers of the Constitution has just freed themselves from and didn't want to see repeated.
pk (anonymous profile)
August 4, 2010 at 6:26 p.m. (Suggest removal)
Even the Supreme Court is "interpreting" the Constitution. The courts have, unfortunately, become as partisan as has Congress. What a sad time we live in. My personal interpretation of the Second Amendment is that it refers to militias, not to individual rights. I do not want to see my fellow Americans carrying weapons on a casual basis. And please don't turn our unique country into a place where I have to be concerned that someone who feels threatened is going to unlease a volley of bullets on unsuspecting citizens like myself. Let's work to cure the ills in America, not make it worse by being paranoid and carrying weapons.
CharityBee (anonymous profile)
August 12, 2010 at 6 p.m. (Suggest removal)
"Even the Supreme Court is "interpreting" the Constitution." -- CharityBee
Back to Civics class for you, CharityBee; interpreting the Constitution is their job!
:::: "Article III Section 1.The judicial power of the United States, shall be vested in one Supreme Court, [snip]
"Article III, Section 2: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;..."
binky (anonymous profile)
August 12, 2010 at 6:12 p.m. (Suggest removal)
Charity Bee. I'm not sure what you mean by "casual".
You say "My personal interpretation of the Second Amendment is that it refers to militias, not to individual rights."
The constitution says "
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."
How you can say you have an interpretation of a clear-cut statement such as the one above is a mystery to me.
We don't live in a perfect world, and while no matter what we do we will still have crime, I would rather take my chances of a higher percentage of the populace being armed so that if some wingnut decides to open fire on innocent people someone in the crowd will be able to stop them as opposed to the way Seung-Hui Cho mowed down all those people at Virginia Tech back in 2007 after Virginia Tech declared itself a gun-free zone.
billclausen (anonymous profile)
August 12, 2010 at 7:51 p.m. (Suggest removal)
"How you can say you have an interpretation of a clear-cut statement such as the one above is a mystery to me."
-Bill Clausen
IMO, words are always open to interpretation and the discussion of a particular interpretation of the written or spoken word isn't about winning the argument. The discussion should be the fun part.
It has always been incredibly difficult for me to see any issue as "black and white". I can usually understand and relate to both sides of an issue. Because of this, I must simply make a choice about which side to take when presented with an idea or conclusion that differs from my own.
Bill, I think the question that you should be asking is, "Why is another person's interpretation of an idea a mystery to me?". IMO, the answer has nothing to do with intellectual capacity and everything to do with choice.
On a side note: Why is it so difficult for people to abstain from name calling. Slinging political epithets (knee-jerk liberals) at folks for their beliefs is name calling and against the Independent's terms).
Kingprawn (anonymous profile)
August 13, 2010 at 8:53 a.m. (Suggest removal)
"the right of the people to keep and bear arms, shall not be infringed."
As I say, this is clear cut. If people say this is up for interpretation, than I think they should be honest and admit they don't agree with the constitution itself. The only argument one can make is saying that modern weaponry enables one to have more far reaching firepower than the Founders ever dreamed of and that we should think twice before allowing AK-47's and so forth to be owned privately. Having said that, no matter what spin people may put on this discussion, the fact is the constitution allows for armed self-defense and people would rather distort things to fit their personal agendas.
billclausen (anonymous profile)
August 13, 2010 at 3:59 p.m. (Suggest removal)
"...we should think twice before allowing AK-47's and so forth to be owned privately" Bill Clausen
So, which is it?
The 2nd amendment is:
A.) Clear cut
B.) Only applicable to firearms that were in existence at the time the constitution was written
C.) Only applicable to certain firearms (if so, who decides?)
D.) Only applicable to members of a "well regulated militia"
E.) None of the above
F.) All of the above
Kingprawn (anonymous profile)
August 13, 2010 at 5:55 p.m. (Suggest removal)
Either A or B.
billclausen (anonymous profile)
August 13, 2010 at 6:42 p.m. (Suggest removal)
Now you're starting to approach the discussion in a thoughtful way.
There are always more questions than answers.
Kingprawn (anonymous profile)
August 13, 2010 at 9:14 p.m. (Suggest removal)
I thought I *was* approaching it in a thoughtful way.
billclausen (anonymous profile)
August 14, 2010 at 2:23 a.m. (Suggest removal)
I believe you and appreciate that you care enough to comment about important issues like gun control, but I feel very strongly that the tone of the dialogue needs to change. We need to ignore the media's model and respect ideas, especially when they differ from our own. It needs to start here on the commenting boards.
Kingprawn (anonymous profile)
August 14, 2010 at 8:02 a.m. (Suggest removal)
CharityBee - You have every right to be a victim of you so desire. You may also leave your doors and windows open at night, but do not expect me to. Fortunately, i do not need to worry about state laws and carry all over the country. My wife however, does have to worry. No one should be legislated into victim status by some mamby-pamby city council or state legislature.
madmike272 (anonymous profile)
August 14, 2010 at 1:59 p.m. (Suggest removal)