Tuesday, June 29, 2010

Guns, Religion & the Supreme Court

Yesterday, the Supreme Court handed down 4 decisions; two of them sexy and two of them not-so-sexy.  We'll stick to the sexy:
We'll take each one in turn after the jump:

McDonald v. City of Chicago
As you might have heard, about a couple of years ago the Supreme Court issued a landmark decision called DC v. Heller which, long story short, finally settled the age-old question about what all those damn commas in the poor,ly, draft,ed, 2,nd, A,mend,ment, actually mean.  Do they mean that that our 2nd Amendment Right to Bear Arms was intended be used in the context of a "well regulated militia" as mentioned in the amendment itself, or used in the context of an individual's right to own a gun?  The Supreme Court sided with the individual rights argument.  Their prayers finally having been answered, NRA members and gun enthusiasts everywhere danced in the streets.  But the party was short-lived as they soon discovered there was one small catch - DC is not a state, it's a federal district.  Therefore the ruling in DC v. Heller only applies to Federal guns laws, and not State gun laws.  D'oh! Not to worry though, because that's where McDonald v. City of Chicago comes in.

Shortly after the Heller decision, a brother by the name of Otis McDonald sued the City of Chicago because of its "flat ban" (an absolute ban across the board) against all handguns within the city limits. In case you didn't know, people get shot in Chicago on the regular.  Mr. McDonald wanted to be able to own a gun to protect himself from all this mess.  Who could blame him right?  So he sued Chicago to determine whether the 2nd Amendment Right to own a gun applies to the States, thereby making Chicago's law unconstitutional.  In a 5-4 decision, Justice Alito, writing for the majority, ruled that the 2nd Amendment applies to the States by incorporation through the 14th Amendment Due Process Clause (side note: there was concern whether the Court was going to apply the 2nd Amendment to the States through the defunct Privileges & Immunities Clause of the 14th Amendment that was killed by the Slaughterhouse Cases back in the 1800's, but it didn't happen - only Justice Thomas voted for that path).

Ironically, Justice Alito's Majority Opinion did not decide the one question that was asked of the Court - whether Chicago's regulation of hand guns is unconstitutional or not.  (NOTE: This is the 2nd time this year that the Robert's Court has ignored the certified question and come up with its own answer to a question that the Court was never asked - the other time was Citizen's United...can you say "Judicial Activism?")  The Decision makes no ruling on this issue one way or the other, but instead kicks it down for the lower courts to decide whether states like Illinois can regulate guns outside of a flat ban, and if so, by how much.  By refusing to give us an example of what's in and what's out, it doesn't take a laser sighted rifle scope to see that this Decision is going to open up the floodgates for gun law litigation in every state across the country for many years to come.  As Justice Breyer noted in his dissenting opinion:
“Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semi-automatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstiutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government’s ability to take special measures during, say, national security emergencies?…These are only a few uncertainties that quickly come to mind.”
About the only guidance that J. Alito did give in the Majority Opinion was where he elevated our 2nd Amendment Right to own a gun up to "Fundamental Right" status.  A "Fundamental Right" is the most highly protected right you can get under the Constitution.  It's right up there with the right to freely practice whatever religion you choose, the right to privacy, the right to marriage, the right to raise your children, the right to keep the family together, and the right to free speech.  Gun ownership seems a bit out of place among those other fundamental rights but who are we to argue with the great Justice Alito?

Christian Legal Society v. Martinez
This case takes place out in California.  The University of California Hastings College of Law has an open policy for any of its student organizations that wish to receive state funding from the school: any student can join any group.  If your student group excludes any students on account of race, religion, sex, etc., then your group is not recognized by the University and it doesn't get school funding.  Sounds pretty simple right?  Well what about a group's First Amendment Right to freely express its own views or its own religious beliefs?

The Christian Legal Society (CLS) at Cal Hastings adopted its own policy that "anyone who engages in unrepentant homosexual conduct" cannot become a member of the organization.  In other words, Gay students need not apply.  To be fair, the CLS absolutely has the right to make up its own membership rules however it sees fit.  However, the University to which it belongs also has a right to make up its own rules as to which groups it will fund.  The ultimate question then becomes who trumps who? 

In another 5-4 decision (aren't they all 5-4 decisions nowadays?), Justice Ginsburg drove one home for the Gay Community by ruling against the Christian Legal Society, holding that the First Amendment does not require a University such as Cal Hastings to recognize or fund student groups which discriminate against other students on the basis of race, religion, sexual orientation, gender, etc.

Justice Samuel "Fundamental Gun Rights" Alito wrote the dissent, arguing that religious groups should, by definition, be allowed to discriminate against those who do not share their religious beliefs the same way that sororities can discriminate against granting membership to men and fraternities can discriminate against granting membership to women.  In other words, when the whole purpose of the group is to be a certain way or share a certain view, it shouldn't have to change by allowing members to join who would go against that purpose.  A rather interesting argument coming from a guy who, 10 years ago, ruled that religious groups DO, in fact, have to change and be more inclusive of other viewpoints.  See ACLU v. Schundler, 168 F.3d 92 (3rd Cir. 1999).   If we were discussing the First Amendment right of the Black Panther Student Organization to exclude White Italian students from Jersey, something tells me that Justice Alito would not be making the same argument that he made here for the Christian Legal Society.


What do you think about either of Monday's Supreme Court decisions?

Should the Right to Own a Gun be a Fundamental Right in your opinion?
Should people in cities like Chicago and New York be allowed to own hang guns?
Does this law make it easier for people convicted of misdemeanor domestic violence to get a gun?


Should Religious groups be allowed to discriminate against people who do not share their views?
And if so, should a School have to recognize those groups?
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