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I’m not a lawyer, so I certainly can’t pretend to have expert views, but everytime I read something like this, my regard for Justice Thomas rises even higher.

In the McDonald case, the justices were asked by the plaintiffs to strike down Chicago’s gun-control ordinance as a violation of the Second Amendment to the Constitution.

In order to do so, the justices would have to make two maneuvers. Of course, they’d have to rule that the ordinance runs afoul of the Second Amendment’s prescription that “the right of the people to keep and bear Arms, shall not be infringed.” But they’d also have to rule that the Second Amendment restricts not just Congress’s ability to make laws controlling the use of guns, but that of state governments as well. Remember, the Bill of Rights, as originally constructed, only applies to the federal government.

In order to extend the Second Amendment to laws passed by states or cities, the court was faced with a choice of two clauses embedded in the 14th Amendment. It could “incorporate” the Second Amendment to the states through the 14th Amendment’s Due Process Clause. Or, pursuant to the 14th Amendment’s Privileges or Immunities Clause, it could deem “the right to bear arms” one of the “Privileges” or “Immunities” that the states are forbidden from taking away.

So you’ve never heard of the Privileges or Immunities Clause? We’re not surprised. The clause was largely neutered in a set of cases decided in 1873.

…Those arguing for resuscitation of the Privilege or Immunities Clause pinned their hopes on Justice Antonin Scalia and Justice Clarence Thomas, both known for their “originalist” approach to constitutional interpretation.

But Justice Scalia on Monday opted, along with Justices Alito and Kennedy and Chief Justice Roberts, to use the Due Process Clause. As Liptak noted, Justice Scalia, in a concurrence, “acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states” but went along with it “’since straightforward application of settled doctrine suffices to decide it.’”

But in a separate concurrence, Justice Thomas boldly went where no justice has gone before: to the arms of the Privileges or Immunities Clause. He wrote:

[T]he text of the Privileges or Immunities Clause . . . command[s] that “[n]o State shall . . . abridge” the rights of United States citizens . . . the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.

The rationale didn’t carry the day, but many legal commentators were thrilled by Justice Thomas’s concurrence. “He’s sticking with the text of the Constitution,” said Georgetown law professor Randy Barnett, to the Law Blog. “At the same time, nobody voices disagreement with Justice Thomas. And that’s because they can’t.”

Writing at Scotusblog, George Mason’s Nelson Lund cheered Thomas’s opinion:

His opinion is scholarly and judicious, and it cements his standing as the only Justice who is more than a half-hearted originalist.

Barnett and others hope that Thomas’s lone dissent has planted the seeds for a constitutional reawakening rooted in the Privileges and Immunities Clause.

http://blogs.wsj.com/law/2010/06/28/is-his-gun-control-concurrence-justice-thomass-finest-hour/

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I´ve already posted a great video from the folks at the Institute for Justice about this issue, but this John Stossel column is another good reminder of the corrupt and evil impact of asset forfeiture laws. If bureaucrats have an incentive to take people´s property – even if they never get convicted of a crime, the results are bound to be horrendous. Repeal is the right answer, but at the very least the laws should be changed so cops and prosecutors can´t line their own pockets:

Zaher El-Ali has repaired and sold cars in Houston for 30 years. One day, he sold a truck to a man on credit. Ali was holding the title to the car until he was paid, but before he got his money the buyer was arrested for drunk driving. The cops then seized Ali’s truck and kept it, planning to sell it. …The police say they can keep it under forfeiture law because the person driving the car that day broke the law. It doesn’t matter that the driver wasn’t the owner. It’s as if the truck committed the crime. “I have never seen a truck drive,” Ali said. I don’t think it’s the fault of the truck. And they know better.” Something has gone wrong when the police can seize the property of innocent people. … This is serious, folks. The police can seize your property if they think  it was used in a crime. If you want it back, you must prove it was not  used criminally. The burden of proof is on you. This reverses a centuries-old safeguard in Anglo-American law against arbitrary government power. The feds do this, too. In 1986, the Justice Department made $94 million on forfeitures. Today, its forfeiture fund has more than a billion in it. …”When you give people the wrong incentives, people respond accordingly. And so it shouldn’t be surprising that they’re stretching the definition of law enforcement,” Balko said. “But the fundamental point is that you should not have people out there enforcing the laws benefiting directly from them.”
http://townhall.com/columnists/JohnStossel/2010/05/19/confiscating_your_property

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