ANATOMY OF A SUPREME COURT CASE: District of Columbia v. Heller (2008)

DIck Heller and Supreme Court - Median pic

  (Photo credit: Median)

by Diane Rufino, May 25, 2019

The case District of Columbia v. Heller is the landmark Supreme Court case decided in 2008, and written by the late great conservative Justice Antonin Scalia, which finally looked at the roots and origins of the Second Amendment and ruled that it confers not only a collective right to keep and bear arms when serving in a militia but also an individual right to keep and bear arms for self-defense and for self-protection. The Second Amendment recognizes and guarantees gun rights for two articulated purposes. Both purposes involve self-defense and protection: The first is for the defense and protection of the state and the second is for the defense and protection of the individual.

We the People have the inalienable Right to Life. The corollary to that absolutely fundamental right is the right to defend and preserve it. Otherwise the right is only one recognized on paper. The right to defend one’s life implies that the individual be entitled to possess the same type of weapons, and of the same force, which may attempt to take his or her life.

The case stems from an incident, as we will see, that occurred in 1975 and which immediately resulted in the strictest gun control law in the nation – in the District of Columbia.

But first, let’s look at the wording of the Second Amendment:

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.”

Next, let’s look at the context in which this Amendment has been added to the Constitution. To do that, let’s look at the Preamble to the first ten amendments (Bill of Rights):

“THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

Each of the first ten amendments to the Constitution (The Bill of Rights) holds a particular significance in the scope of government. And that significance is articulated by the Preamble which accompanied the Bill of Rights. The Preamble goes to the INTENT of our Founders and framers and to the understanding of the ground rules by which the States established and then agreed to create a general government. Remember, there were several states that would NOT have ratified and adopted the Constitution – that is, would NOT have joined the Union of states – if a Bill of Rights was not added.

How important was the Right to Keep and Bear Arms?? As will be discussed later, gun rights activist Don B. Kates, did extensive research into the history and the roots of our gun rights and the Second Amendment. In his research into the debates of the states in their ratifying conventions (1787-1790), he found that the number of states that recommended adding a guarantee of the right to have guns outnumbered those that recommended adding other rights.

North Carolina was one of those states. North Carolina met in convention in 1788 (July 21 – August 4) and could not decide whether to adopt the US Constitution. The State adopted the Anti-Federalist position which held that the Constitution had the potential of concentrating too much power in a central government. To avoid this, those states argued that a Bill of Rights was needed to be added to the Constitution (“A Bill of Rights is what every free people are entitled to against every government” – Thomas Jefferson). North Carolina decided to wait it out – to see if a Bill of Rights would indeed be added. At that 1788 convention, the delegates drafted and adopted a “Declaration of Rights: (20 of them) and a set of Amendments (26 of them), which were forwarded to Congress. [See https://www.usconstitution.net/rat_nc.html]. One of those “Rights” was the Right to Keep and Bear Arms. It read:

“17. That the people have a right to Keep and Bear Arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that. in all cases, the military should be under strict subordination to, and governed by, the civil power.”

The Constitution was eventually ratified by the requisite nine states on June 21, 1788 (New Hampshire being the ninth state to ratify) and so it went into effect and established our second American Union. The first US Congress was seated on March 4, 1789. (North Carolina was not part of the Union at that time and thus, not represented). In September 1789, the first US Congress adopted a set of amendments (which were written and submitted, as promised, by James Madison), which were sent to the States to be ratified as the US Bill of Rights. Once this was done, North Carolina called up a second convention two months later. The Constitution was ratified on November 21, 1789, making the state the twelfth state to ratify and join the Union.

So, let’s go back to 1975, the year that ultimately gave rise to the Heller case.

  • Violent crime involving handguns was on the rise in the United States. Communities were no longer safe; the streets were no longer safe. Murders were up, robberies were up, aggravated assaults were up, there were car-jackings, home invasions, drug-related crimes, etc
  • In 1974 alone, there were more than 890 incidents of violent crime (involving the illegal use of a firearm) every single day – with a disproportionate share of them being in DC
  • In the 1970’s, DC was suffering from one of the highest levels of violent crimes (and poverty and drugs and venereal disease) in the country
  • Fortune magazine called DC “one of the sickest cities in America”
  • The majority of its residents were African-American, trapped in poverty, stuck on welfare, and succumbing to crime and drug use
  • Prayer was taken out of public schools by the Supreme Court with the Engel v. Vitale ruling in 1962
  • Bible readings were taken out of public schools by the Supreme Court with the Abington v. Schempp ruling in 1963
  • LBJ signed the Civil Rights Act into law in 1964, creating the welfare system we know today which has had disastrous effects on the advancement of black communities – providing and focusing on handouts that discourage self-improvement, advancement, independency, and responsibility

With respect to LBJ’s “War on Poverty” and the “Aid to Families with Dependent Children (AFDC)” program (welfare, particularly aimed at inner-city blacks), Derryck Green, spokesman for Project 21 (Black Leadership Network) explained: “The disastrous effects of the government’s management of anti-poverty initiatives are recognizable across racial lines, but the destruction is particularly evident in the black community. It effectively subsidized the dissolution of the black family by rendering the black man’s role as a husband and a father irrelevant, invisible and — more specifically — disposable. The result has been several generations of blacks born into broken homes and broken communities experiencing social, moral and economic chaos. It fosters an inescapable dependency that primarily, and oftentimes solely, relies on government to sustain livelihoods.” The unintended consequences – institutionalized poverty, crime, drugs, broken families, lack of education, etc were prevalent in DC in the 1970’s.

On a Sunday in June 1975, two men broke into a hardware store with pistols and committed armed robbery, firing shots at the guards while customers were in the store. The store was owned by John Hechinger, who also happened to be the first chairman of the Council of the District of Columbia (= city council of DC)

Two years earlier, in December 1973, the US Congress relinquished governance over the District of Columbia and established “home rule,” giving the city’s residents the right of self-governance…. Finally. However, the government still maintained ultimate authority; it could over-ride laws that it did not approve of.

In July 1976, John Hechinger helped to pass the most stringent gun control law in the nation:

  • Banned shotguns completely
  • Required that shotguns and rifles must be kept unloaded, disassembled, and locked in one’s home
  • Long guns (rifles, shotgun) could be assembled for recreation purposes only, such as hunting
  • Banned the use of “long guns” (including shotgun) for non-recreational purposes (hence, they could not be used for self-defense)

In other words, even if a person owned a shotgun, he or she couldn’t use it against an armed burglar coming through the door.

Interestingly, a young first-term Republican Congressman from southern Texas, Ron Paul, who had a particular aversion to big ambitious government and who would go on to found the Liberty movement, tried to over-turn the gun ban in Congress. Although Congress had given DC “home rule,” it still retained the right to revise its laws should it feel the need to do so. [The bill passed; however, the wording was so sloppy that it was ineffective at overturning the ban].

When the DC gun ban went into effect, Second Amendment jurisprudence wasn’t very well-articulated. The prevailing view was that the Second Amendment articulated a “militia theory” of gun rights. That is, a “collective right.” Only when an individual was serving or able to serve in a state militia would he be entitled to keep and bear arms. Those arms, accordingly, would only be allowed when serving in a militia.

In 1939, the Supreme Court ruled in the case United States v. Miller that “a sawed-off shotgun is not a typical weapon used by a militia and thus is not protected under the Second Amendment,” thus apparently endorsing the “militia theory” or “collective right” view of the Second Amendment.

Note that the Supreme Court never really officially endorsed the “Militia” theory (or Collective Right theory) of the Second Amendment because it never bothered to do a deep dive into its history or original meaning, but it certainly appeared it tended that way in 1939 with the Miller case. For many decades after the opinion, the lower federal courts adopted the “militia theory” and the Supreme Court never objected or took cases to correct this view. In fact, the justices of the Supreme Court declined for 70 years to rule on any Second Amendment case.

In the 1930’s and 1940’s, and even into the 1960’s, the US practiced and even institutionalized civil rights violations against African-Americans. There was the Jim Crow era, followed by the violent Civil Rights era, when those institutions of racism finally came toppling down. Before that, freed slaves and their children were victimized and persecuted by the Democratic Ku Klux Klan – militant members of the Southern Democratic Party intent on maintaining white supremacy in the South by preventing blacks from voting and having any meaningful civic voice in southern society. Most people don’t know that one of the primary objects of the Ku Klux Klan was to visit the homes of freed blacks and take their guns away. Blacks could not be permitted to have firearms; they could not be permitted to defend themselves or to harm whites.

In the summer of 1963,, a gun-rights activist named Don Kates stood guard outside the home of a local civil rights activist in eastern NC with an M1 Carbine in one hand and a Smith & Wesson Chief’s Special revolver in the other hand. That activist, a woman, was to be a plaintiff in a civil rights lawsuit and she had been receiving death threats. Eastern North Carolina was Ku Klux Klan country and the police too often sided with the Klan. Good men, civilians, armed with firearms would have to protect her and Don Kates volunteered for the job. Kates had just completed his first year at Yale Law School and was volunteering at a law firm in North Carolina working on civil rights cases. The experience of providing protection for a woman facing death threats taught Kates a valuable lesson: For oppressed people who can’t rely on the police, having a gun is sometimes the only means of self-protection. This was especially true for African-Americans who had a history of being oppressed and being denied access and ownership of guns.   [Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” (2011)]

Later in the 1970’s when he went into private practice, Kates began to represent clients in civil rights cases. To best do so, he researched the history of the Second Amendment. Eventually, over the next couple of years, he published a series of articles in various legal magazines and journals on gun rights, the most notable being the Michigan Law Review. [Don Kates, “Handgun Prohibition and the Original Meaning of the Second Amendment,” Michigan Law Review 82 (1983): 204]. That article in the Michigan Law Review was the first article ever to appear in a law review from a top ten law school arguing that the Second Amendment protected an individual right to keep firearms for self-defense. This article would help revolutionize Second Amendment jurisprudence by tying it to its original meaning and intent. [Adam Winkler, “Gun Fight….”]

But Kates’ article wasn’t actually the first to articulate this “Individual Right” view of the Second Amendment. That distinction would belong to Robert Sprecher, a Chicago lawyer, in 1965. Every year, the American Bar Association (ABA) sponsored an essay competition on constitutional law issues. The winning essay is published in the ABA Journal, the most widely-circulated legal periodical. In 1965, the question posed was this: “What does the Second Amendment, guaranteeing the right of the people to keep and bear arms,’ mean? Does the guarantee extend to the keeping and bearing of arms for private purposes not connected with a militia?” The winning essay was written by Sprecher (who, incidentally, went on to being nominated to the federal bench by President Nixon). [Robert Sprecher, “The Lost Amendment,” American Bar Association Journal 51 (1965)]. In his essay, he argued that the original meaning of the Second Amendment had been lost. According to his research into its historical roots, the Founding Fathers sought to secure “the right to arm a state militia AND also the right of the individual to keep and bear arms” for personal self-protection. [Adam Winkler, “Gun Fight….”]

Clark Neily, who we will meet very shortly, considered Kates’ article in the Michigan Law Review the “seminal work” on the Individual Rights theory of the Second Amendment. It had a profound impact on his view of gun rights. To be fair, Kates didn’t deny that the Founding Fathers were concerned primarily with the militia when they conceived of, drafted, and adopted the Second Amendment, but the evidence (according to Kates) suggests that it was precisely by protecting the individual in his right to keep and bear arms that the Framers intended to protect the militia. As long as individuals had the fundamental right to keep and bear arms, unburdened by government, the militia would always exist. “The one thing all the Framers agreed on was the desirability of allowing citizens to arm themselves,” he wrote in his article. The Second Amendment was designed to keep the government from disarming the civilian population. And this makes sense being that it was the King George’s command to disarm the colonists that led to the shots that started the fight for independence. [Ibid]

In his research into the debates of the states in their ratifying conventions (1787-1790), Don Kates found that the number of states that recommended adding a guarantee of the right to have guns outnumbered those that recommended adding other rights. “Amending the Constitution to assure the right to arms was endorsed by five state ratifying conventions. By comparison, only four states suggested that the rights to assemble, to due process, and against cruel and unusual punishment be guaranteed, and only three states suggested that freedom of speech be guaranteed.” [Don Kates, “Handgun Prohibition and the Original Meaning of the Second Amendment,” Michigan Law Review].

While the wording of the Second Amendment had confused generations of Americans, Kates sought to actually understood what those words meant to the Founding Fathers (which is an “originalist” approach). Supporters of the “Militia Theory” of the amendment saw the grant of the right to keep and bear arms “to the people,” which seemed to indicate a collective right. That is, only when individuals assembled to form a militia does the Second Amendment protect their right to have and bear arms. It would also offer guidance as to which firearms would likely be protected. But Kates’ Michigan Law Review article offered a different explanation. A simple look at the Bill of Rights shows many other examples of provisions where the Founding Fathers and drafters took the phrase “the right of the people” to mean individual rights. The First Amendment, for example, refers to the right of the people…   to petition the government for a redress of grievances.” The Fourth Amendment refers to the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Tenth Amendment explicitly distinguished “the people” from “the States,” providing that the “powers delegated” to Congress “are reserved to the States respectively, or to the People.” So, then, a reading of the Second Amendment…   “the right of the people to keep and bear arms, shall not be infringed” would indicate that an individual right to be armed is articulated. [Ibid]

In 1989, one of the foremost liberal constitutional law professors in the country, Sanford Levinson, published an article in the Yale Law Journal endorsing Kates’ view of the Second Amendment. [Sanford Levinson, “The Embarrassing Second Amendment,” Yale Law Review 99 (1989): 637].

In the years following Kates’ article in the Michigan Law Review, and particularly in the years 1989-1995, more academic research was done regarding the Second Amendment than had been done in the previous 200 years.

Kates would become the most influential proponent of the view that the Founding Fathers intended the Second Amendment to guarantee the right of private individuals to own firearms for their protection and that of their families.

So then comes the turn of the century… early 2002. Legal scholars began to wonder what exactly is the nature of the right guaranteed by the Second Amendment. There has been growing scholarship on the original meaning of the Second Amendment which tended to protect both the right to bear arms to serve in a militia and to bear arms for self-protection yet the prevailing earlier view had been the Collective or Militia Theory only.

What does the Second Amendment really mean? Does it only assure Americans that Congress would NOT have the power to destroy state militias by disarming the people? Or does it also assure Americans that Congress will NOT have the power to deny their right to have firearms for self-protection?   Does it confer a Collective right or also an Individual Right?

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.”   [Collective Right]

“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.”   [Individual Right]

OR, are there two types of gun rights articulated? Are there two types of rights that “Shall Not be Infringed” – the right of a state to have a well-regulated militia (hence, individuals, which necessarily comprise the militia, must have the right to keep and bear arms to serve in it) and right of the individual to keep and bear arms for personal protection. Again, both of these reflect a general right of self-defense and preservation and both absolutely are grounded in the right of the individual to keep and bear arms.

The question was this: Would the Supreme Court be willing – finally – to rule on a modern-day Second Amendment case? Would the time be right? Would the Court be likely to embrace the new and growing view of the Second Amendment, which is that it guarantees the individual a right to keep and bear arms for self-defense and self-protection (including against a tyrannical government)?

At a happy hour in DC in early 2002, two young lawyers who worked at the Institute for Justice, Clark Neily III and Steve Simpson, were drinking and talking constitutional law – always a powerful combination. Their discussion turned to the right to bear arms. They noted that for too many decades, the federal courts held that the Second Amendment protected only the right to have guns for the purpose of serving in a state militia, but that over the past 15-20 years or so, there have been important developments in the understanding and history of the amendment. Characterizing themselves as libertarians, the believed that it is individuals who should be able to decide for themselves how best to safeguard their lives and to protect their homes and their families, without government insinuating its political agenda. In their alcohol-induced legal excitement, they suggested that the time might be ripe to get the Supreme Court to reconsider the meaning of the Second Amendment.

The Growing Scholarship and the Shift in the Understanding of the Meaning of The Second Amendment:

  • Robert Sprecher’s article in the American Bar Association Journal (1965)
  • Don Kates’ article in the Michigan Law Review (1983)
  • Sanford Levinson’s article in the Yale Law Journal (1989) .
  • President George W. Bush, through his Attorney General John Ashcroft, announced his administration’s rejection of long-standing White House policy regarding the Second Amendment (Bush rejected the Militia Theory in favor the Individual Right’s view). The NRA, a major backer of Bush, supported him on this policy change.
  • In 2001, the Fifth Circuit Court of Appeals (in Texas) took Ashcroft’s cue and held that earlier rulings interpreting the Second Amendment to apply only to state militias had been wrong. “The original meaning of the Second Amendment was to guarantee individuals, not just militias, the right to bear arms.” [United States v. Emerson]. ** This case marked a profound shift in Second Amendment jurisprudence.
  • In the 1980’s, President Ronald Reagan’s attorney general, Edwin Meese III sought to add as many strong conservative judges and justices to the federal court system. He particularly sought to appoint those who adopted the philosophy of Originalism. During his first two years in office, President Reagan appointed half of the federal judges in America, along with three new Supreme Court justices.

The Supreme Court declined to hear the Everson case. Everson was a gun owner who had threatened to hurt innocent people, and because of his threats, had a restraining order against him by a court of law. Perhaps the Court declined to take the case because the person challenging the gun control law, Timothy Joe Everson, was a dangerous man; he was an offensive challenger. Perhaps, as Neily and Simpson, reasoned, the Supreme Court might be more inclined to hear a Second Amendment case if it involved a law-abiding person who simply wanted or needed to own a gun for self-defense.

 

BUILDING THE PERFECT CASE (the “Test” Case)

First, of course, the Court has to be receptive to what the lawyers want to ask of it, which is to abandon the Military Theory of the right to keep and bear arms in favor of an Individual Right to do so. Was the Supreme Court conservative enough at the time? At the time (2002-2005), the conservatives members were Justices Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas, and Chief Justice William Rehnquist, with Anthony Kennedy as the swing vote. Liberal members were Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens, and Stephen Breyer. [Sandra Day O’Connor stepped down in 2005, and President Bush nominated John Roberts to replace him. But just before the Senate Confirmation Committee was set to act, Rehnquist died unexpectedly. So Bush nominated Roberts to replace him as Chief Justice and Samuel Alito to replace O’Connor. Roberts was confirmed in September 2005 and Alito was confirmed in Jan. 2006].

The Court was conservative compared to the progressive Warren and Burger courts. Earl Warren was Chief Justice from 1953-69 and presided over such landmark cases as Brown v. Board of Education (1954), Engel v. Vitale (1962) and Abington v. Schempp (1963), which took prayer and Bible readings out of schools, respectively), Griswold v. Connecticut (1965), somehow finding a blanket right to privacy and thus serving as the precursor to Roe v. Wade, and enlarging due process rights for criminal defendants (including Miranda rights and publicly-funded attorneys). Warren Burger was Chief Justice from 1969-1986 and presided over such cases as Roe v. Wade (1973) which articulated the right to an abortion, Regents of the University of California v. Baake (1978) which upheld affirmative action policies in universities, and several cases defining the limits of free speech and free press.

A good case for the justices of the Supreme Court to re-address the Second Amendment is one with sympathetic, law-abiding plaintiffs who have an understandable reason to be armed, preferably ordinary individuals who rightfully fear violent criminals or who live in a crime-ridden area. The best-case scenario would be to have individuals who have actually been threatened with harm or death or who have already been victims of crime. A good case would be one that reaches the ultimate merits of the issue (which is that the Second Amendment affirms a constitutional and individual right to keep and bear arms) and not be decided on any extraneous issues. A good case would have constitutional significance.

Neily and Simpson began to plan on how to get a Second Amendment case to the relatively conservative Supreme Court.

(I)  The first decision to make was which city’s gun control law would they target. The easy answer was Washington DC.

(a) It was the strictest gun control law in the nation

(b) Under the law, everyone, even law-abiding citizens, were banned from owning a handgun

(c) Even if an individual owned a shotgun or rifle for a legal purpose under the law (hunting), it would be ILLEGAL (a crime) to use that legally-owned firearm for self-defense should an armed robber or murder break into his home

(d) DC is technically ruled by the federal government; it is not a state but rather, a federal territory. Although DC was granted “home rule,” the Constitution gives Congress the ultimate authority over the area. (That is why Ron Paul was able to seek and pass legislation to try to limit the effect of the gun-control law). The Second Amendment (as all of the Bill of Rights) is a restriction only on the federal government. [That is, by challenging DC’s gun law instead of, say New York City’s gun law, Neily and Simpson would only need to convince the Supreme Court that the Second Amendment guarantees the right of individuals to have guns. That would be a challenge, given the Miller case precedent, but it would be less difficult than having to persuade the Court to also rule that the amendment applies to the States through the 14th Amendment. The McDonald v. City of Chicago case would do that in 2010].

(II)  Neily and Simpson were relatively unknowns, with no money to build the case. They would need to find the perfect person to finance the case. A friend of Neily’s, a fellow co-clerk in DC and a wealthy individual, Robert Levy agreed to finance. He was then a senior fellow at the Cato Institute. (Levy decided to go to law school at the age of 50. Although he was absolutely brilliant and could have gone to any law school he chose, he decided to attend George Mason Law School because it was a conservative law school. Its professors lean clearly to the right unlike the professors at almost all other law schools). At this point, Simpson had to drop out because of the pressures of his job.

III. Next, Neily and Levy had to find a suitable attorney to lead the case. Neither Neily or Levy considered themselves capable to do so. The decided on a young libertarian lawyer named Alan Gura who they remembered in their libertarian circles as a proponent of both guns and marijuana being legal (“individuals have the right to do with their lives without government interference”). Gura was sharp but he had never argued a case before the Supreme Court.

IV.  The second major decision to make was to select the Perfect Plaintiff (ie, the person to represent the issue, the lead name on the case).

(a) Dick Heller. Dick Heller was a white man who worked as a security guard at a federal building in Washington – the Thurgood Marshall Federal Judicial Center. He lived in DC across the street from an abandoned federal housing project. That housing project was built in the 1960’s, in furtherance of LBJ’s “war on poverty.” Thirty years later, the units were run down and decrepit – with rotted out walls and collapsing ceilings. The only people who found the place habitable were heroin and crack addicts. Consequently, a drug gang moved into the area and operated out of the complex. The drugs and the gang brought with them violence – routine shootings and killings. The police were happy to ignore the area. But Dick Heller had to exist in this neighborhood. At night he would hear the gunshots and try to ignore them. One night he returned home to find a stray bullet had struck his front door. At work, he carried a handgun on his hip to protect the people who worked there (federal employees), but because of DC’s then 20-year-old gun ban, he had to leave it there when he returned home each day. In 2002, prompted by the suggestion of a close friend, Heller applied for a gun permit and went through the frustrating and futile exercise of applying for a gun permit. Also at the suggestion of his friend, he documented the ordeal as a testament to the practical impossibility of obtaining and keeping a gun for home protection in the district.

While there was rarely any threat of violence at work, the situation at home was very different. There existed a real threat, an actual threat, of violence in his neighborhood. Yet the DC gun control law banned him from possessing a firearm to defend himself.

The only negative that Neily, Levy, and Gura could find (which might have an unfavorable impression on the Court) was that Heller was overly obsessed with his gun rights and was prone to making potentially disturbing political statements.

(b) Shelly Parker. In 2002, Shelly Parker, an elderly African-American woman and former nurse, moved to a neighborhood not far from Capitol Hill, in an area where drug dealers sold their drugs right out in the open. Determined to keep her neighborhood clean, she became a one-woman Community Watch, keeping an eye out on the streets and calling the police whenever she saw someone buying drugs. The drug dealers caught on and responded with intimidation – smashing her car window, stealing her security camera, and driving a car into her back fence. One night, a drug dealer stood at her gate and shouted: “Bitch, I’ll kill you! I live on this block too.” Parker began to fear for her life, believing that the drug dealers would eventually make good on their threats. When she called the police to tell them of the threats, one officer told her point blank: “Get a gun.” The officer certainly knew that owning a gun was against the law, but he also knew that it was the only sure way to protect her life. He understood, as she did, that the DC gun law left citizens like her defenseless and putting her life in danger. As Parker said: “The only thing between me and somebody entering my home are harsh words. That’s all I have.” Parker was an attractive plaintiff for many reasons: She was a very sympathetic elderly woman, defenseless, victimized, in actual fear of her life, and African-American. She had stood up to violent drug dealers at great risk to her life. Why does it matter that she was African-American? Because history has been cruel to African-Americans in this country. First they were slaves and even when they were freed, the South legislatively imposed second-class status on them with the segregation laws known as the Jim Crow laws. After Reconstruction and as the Southern states were trying to re-establish their white dominated society, the Ku Klux Klan went around terrorizing and intimidating free slaves but most importantly, confiscating their guns. Laws were put in place in the post-Reconstruction South (the Jim Crow South) forbidding blacks to own guns, or making it almost impossible to get one. Freed slaves were intentionally left defenseless.

Gura chose Shelly Parker. She was a far more sympathetic and compelling plaintiff.

 

THE ROCKY ROAD to the SUPREME COURT:

1).  Gura filed the lawsuit in the District Court for the District of Columbia on February 10, 2003. As mentioned above, the lead plaintiff chosen was Shelly Parker and so the case name, as filed, was Parker v. District of Columbia.

2).  After Gura filed the complaint against the District of Columbia, the NRA, totally unexpectedly, filed its own lawsuit.. In that lawsuit, the NRA not only asserting the “Individual Rights” view of the Second Amendment but also including what is called “trap doors” – additional, extraneous claims that the courts could use to decide the case by avoiding the Second Amendment question. Neily and Simpson decided to bring the case, and Levy put his own money behind it, NOT to simply strike down the DC’s handgun ban. They wanted to resurrect the Second Amendment. The NRA wanted just the opposite. Note, the NRA hired as its leading attorney the renowned Steve Halbrook – the nation’s leading expert on the right to bear arms. Halbrook was Neily and Levy’s first choice, but unfortunately, he was too expensive for their budget. Halbrook had plenty of experience trying gun cases; Gura had none.

Gura did not expect the NRA’s lawsuit. He had thought the organization would have supported their lawsuit to assert the Individual Rights view of the Second Amendment. The NRA’s concerns, however, were two-fold (and conflicting): (1) On the one hand, it didn’t want to challenge the prevailing “Militia Theory” view of the Second Amendment because gun control laws were their bread and butter. Nothing advances its fund-raising efforts more than alerting gun enthusiasts and club members that their gun rights are being infringed by gun-control laws. (2) On the other hand, the NRA was in favor of the individual rights view but they thought the timing for such a lawsuit was not right – they could not be sure that they had the necessary votes on the Supreme Court to shift from the Militia view. [Justice Sandra Day O’Connor had disappointed conservatives by siding strongly with progressives on abortion and on affirmative action, and Justice John Paul Stevens was uber liberal and anti-gun. Both were likely to be replaced by President Bush].

3).  The NRA sought to have the cases consolidated, thereby hijacking Gura’s case by bringing in the “trap door” claims. Also, the NRA hoped that it would be Halbrook, and not Gura, who would argue the case. Essentially, the point of the NRA’s litigation tactic was this: “If we can’t control the litigation, there won’t be any litigation!” Luckily, in July 2003, the district court judge, Emmett Sullivan, reached a decision – the two cases should not be consolidated. Alan Gura successfully survived the first hurdle.

4).  Unable to derail Gura’s lawsuit with consolidation, the NRA tried Plan B – It convinced Senator Orrin Hatch to introduce a bill in Congress, the “District of Columbia Personal Protection Act” which would over-turn the DC gun law and permit DC residents to possess handguns. If the bill passed then Gura’s lawsuit would be moot and thrown out of court. [The bill passed the Senate and was fast-tracked to the House floor in 2007 where it was expected to pass, but then the shooting at Virginia Tech happened on April 16 and it doomed the bill].

5).  In March 2004, Judge Sullivan ruled that the court was bound by the US v. Miller ruling (1939) which held, although ambiguously, that the Second Amendment applied only to state militias and therefore dismissed Gura’s lawsuit. Gura actually expected this. What he didn’t expect was how long it would take for Sullivan to make it. In the meantime, the judge handling the NRA case had also issued a dismissal. Because the NRA case was dismissed first, it meant that Steve Halbrook had the chance to file an appeal before Gura did – which he did. Timing is everything. Here is why it mattered: Halbrook filed an appeal on behalf of the NRA and so when Gura filed his appeal, the DC Circuit Court (of Appeals) ruled that Gura’s case would be put on hold pending the ruling of the appeal in the NRA case. In other words, Halbrook would get to argue his case before a panel of appellate judges and Gura would not. The NRA, in effect, now had control of the litigation regarding the DC gun control law.

6).  In 2005, the DC Circuit Court heard the NRA’s appeal. Being persuaded by an argument that DOJ Attorney General John Ashcroft made asserting that the plaintiffs in the NRA’s case lacked standing, being that none of them had tried to register a handgun nor been arrested for having one, the NRA’s lawsuit was dismissed. [Remember that Dick Heller had standing; he had an actual injury. He not only applied for a permit for his revolver but he documented how frustrating and futile the process was]. Gura survived yet another hurdle, because with the NRA case out of the picture, the DC Circuit could then hear Parker’s appeal.

7).  Gura appeared before the 3-judge panel of the DC Circuit in early December 2006. The attorney for the District of Columbia, Todd Kim (a distinguished Harvard Law School graduate) challenged all of the plaintiffs as not having standing to sue the District of Columbia over its gun law. He insisted that none of them had really been hurt; none had suffered a direct injury as a result of the gun ban. The panel agreed as to all plaintiffs except Dick Heller. Heller had been directly harmed. He had applied for a gun permit and was denied. And so, in 2007, with the DC Circuit Court’s ruling, Parker v. District of Columbia was renamed Heller v. District of Columbia, with Dick Heller as the sole plaintiff.

8).  In February 2007, the DC Circuit handed down is decision in Parker v. District of Columbia (renamed, Heller v. District of Columbia), with 2 of the 3 judges ruling against the District of Columbia. The majority opinion, written by Judge Silberman, strongly endorsed the Individual Rights view of the Second Amendment. “The Second Amendment protects an individual right to keep and bear arms.” Silberman’s arguments were very closely aligned with the arguments made twenty-five years earlier by Don Kates in his Michigan Law Review article. “The People,” whose right is guaranteed in the Second Amendment, are the same individuals who are guaranteed the rights enumerated in the First and Fourth Amendments, and the “Militia” refers to all able-bodied citizens who were expected to have their own guns, to be trained and experienced, and even comfortable, in their use when called into service. In other words, because able-bodied citizens had the right to keep and bear arms, they could be called to serve in a state militia. Arming the militia may have been the primary reason the Founding Fathers wrote the Second Amendment, as Silberman wrote, but it was not the only one. The right to bear arms that the colonists (and our Founding Fathers and founding generation) inherited from England also included the right to defend one’s home from violent attack and the right to defend the individual from the tyranny of government. Reaching the ultimate issue, the constitutionality of the DC gun ban, Silberman concluded that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated the Second Amendment’s right to keep and bear arms for the purpose of self-defense.

9).  Unfortunately, the ruling only applied in the District of Columbia. It didn’t stand as binding precedent anywhere else in the country. Neily, Levy, and Gura’s goal all along was to try a Second Amendment case with constitutional significance. Their goal was a definitive ruling by the US Supreme Court. The problem, however, was that the losing party has the right to file an appeal and not the winning party. If the District of Columbia decided not to seek an appeal and instead, just amend its gun law, Neily, Levy, and Gura were screwed. But as luck would have it, on September 4, 2007, the District of Columbia filed a “Writ of Certiorari” with the Supreme Court, requesting the court to review its case.

10).  On November 20, 2007, the Office of the Attorney General for the District of Columbia received word that the Supreme Court had agreed to hear their appeal.

11).  Also in 2007, in anticipation of the upcoming case, the state of Montana’s lawmakers passed a resolution demanding that the Supreme Court hold that the Second Amendment guarantees an individual right to bear arms. The resolution said that when Montana agreed to join the Union in 1889, its people believed that the US Constitution protected the right of individuals to possess guns for self-protection, and not just a right tied to state militias. According to the Resolution, Supreme Court ruling rejecting the individual rights view of the Second Amendment would “violate Montana’s Compact with the United States” and Montana “reserves all usual rights and remedies under historic compact/contract law if its Compact should be violated.” In other words, the Second Amendment’s meaning as an individual right to keep and bear arms was so critical that Montana was threatening to secede from the Union should the Court rule against such a view.

12).  On March 18, 2008, the Supreme Court heard oral arguments in the Heller case. Walter Dellinger represented the District of Columbia and Alan Gura represented Dick Heller. Each lawyer was initially given 30 minutes to argue the merits of its case (although they were eventually given some extra time). U.S. Solicitor General Paul Clement was given 15 minutes to present the federal government’s views. Almost immediately, Scalia’s questions and comments made it abundantly clear that he was strongly in favor of the Individual Right view of the Second Amendment. And Gura was fairly confident that Kennedy would agree with the Individual Rights view as well. Heller’s team was optimistic.

13)  The case was decided on June 26, 2008. On that day, the lawyers were called to the Supreme Court building and waited for the justices to file in and take their seats. After an opening opinion was read, Chief Justice John Roberts announced: “Justice Scalia will have our decision in 07-290.” That was the docket number of the Heller case. Once it was announced that Scalia was the author of the opinion, “that was when we knew the opinion was in our favor,” said Gura. It was the first time in American history that a gun control law violated with Second Amendment to the Constitution !! It was a long-time coming, but the Supreme Court finally articulated the correct meaning and intent of the Second Amendment.

 

THE HELLER OPINION IS HANDED DOWN –  [District of Columbia v. Heller, 554 U.S. 570 (2008). https://www.supremecourt.gov/opinions/07pdf/07-290.pdf]

The Supreme Court, in Heller, AFFIRMED the DC Circuit Court ruling.

The opinion, written by Justice Scalia, can be summed up by these excerpts:

We turn first to the meaning of the Second Amendment…. In interpreting this text, we are guided by the principle that “the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. Respondent Heller argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well-regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Let’s first look at the “Operative Clause.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body. There are three provisions of the Constitution that refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights.   Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

The most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else. At the time of the founding, as now, to “bear” meant to “carry.” In 1998, Justice Ginsburg wrote that “surely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicates: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit.

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .”

Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” This right has long been understood to be the predecessor to our Second Amendment. It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. But it was secured to them as individuals. By the time of the founding, the right to have arms had become fundamental for English subjects. According to William Blackstone, whose works (“Commentaries on the Laws of England”), this Court has held, constituted the preeminent authority on English law for the founding generation, cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. [See Blackstone, Volume 1, pp. 136, 139–140]. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense.” (pg. 139)

Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “it is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defense.” They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Anti-Federalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repel force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” [See Blackstone’s Commentaries, Vol. 1; pp. 145–146 (1803)]

Thus there seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the US Bill of Rights’ Second Amendment. Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty . . . . The right to self-defense is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” He believed that the English game laws had abridged the right by prohibiting “keeping a gun or other engine for the destruction of game.” He later grouped the right with some of the individual rights included in the First Amendment and said that if “a law be passed by congress, prohibiting” any of those rights, it would “be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused . . . .” It is unlikely that Tucker was referring to a person’s being “accused” of violating a law making it a crime to bear arms in a state militia.

In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows: “The first principle is a declaration that a well-regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . . “The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. Rawle clearly differentiated between the people’s right to bear arms and their service in a militia: “In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war.” Rawle further said that the Second Amendment right ought not “be abused to the disturbance of the public peace,” such as by assembling with other armed individuals “for an unlawful purpose”—statements that make no sense if the right does not extend to any individual purpose.. Story explained that the English Bill of Rights had also included a “right to bear arms,” a right that, as we have discussed, had nothing to do with militia service. He then equated the English right with the Second Amendment: “§1891. A similar provision [to the Second Amendment] in favor of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, ‘that the subjects, which are protestants, may have arms for their defense suitable to their condition, and as allowed by law.’ But under various pretenses the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.” This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected.

As the Tennessee Supreme Court recognized thirty-eight years after Story wrote his Commentaries, “the passage from Story, shows clearly that this right was intended . . . and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.” Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. In addition, in a shorter 1840 work, Story wrote: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.”

Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self-defense; without this right to use the guaranty would have hardly been worth the paper it consumed.” In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed: “The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defense, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.”

19th-century pre-Civil War cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defense of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.” In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defense” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right: “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled underfoot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”

Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defense of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.” the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. In 1833, the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “of all the free citizens of the State to keep and bear arms for their defense.” 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense: “The right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.”

Similarly, it was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense. J. Ordronaux, in his 1891 book “Constitutional Legislation in the United States” 241–242 (1891), wrote: “The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. . . . It was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.”

Justice Scalia distinguished the United States v. Miller (1939) ruling this way: “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment…. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.”

We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to keep and use for protection of one’s home and family,” would fail constitutional muster.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government – even the Third Branch of Government (the federal courts) – the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people.

Since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field. But whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Justice Scalia spent 45 pages of the majority opinion addressing the history, and especially the original meaning and the intent of the Second Amendment (summed by appropriate excerpts above). He distinguished the United States v. Miller (1939) case by pointing out that the Court didn’t even attempt to do a thorough examination of the Second Amendment, and then announced that the clear purpose of the Second Amendment was, and IS, to guarantee an individual right to Keep and Bear Arms for self-defense. Finally, he concluded by announcing that, because the DC Gun Ban denies Dick Heller and other DC residents of this right, it is unconstitutional.

The Heller decision would be the first time in American history that a gun control law was found to violate the Second Amendment to the Constitution.

 

CONCLUSION (and POST-HELLER GUN RIGHTS):

We say the Heller opinion was an “ORIGINALIST” opinion because the analysis of the Second Amendment was based purely on an examination of history, with an emphasis on what the words and intent of the “Right to Keep and Bear Arms” meant at the time it was adopted by the American colonies and then when they became states and then finally when they incorporated into the federal Union with the Constitution.

Indeed, District of Columbia v. Heller is the most significant case which applied “originalism” in analyzing the Constitution, and together with the companion case, McDonald v. City of Chicago (2010), addressed below, are the most significant Second Amendment cases to date. We can expect another similarly significant case this fall – New York State Rifle & Pistol Association v. City of New York. The New York State Rifle & Pistol Association is the NY state chapter of the NRA.

Originalism is a concept regarding the interpretation of the Constitution that asserts that all terms and provisions in the Constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified. Justice Scalia was the most famous proponent of Originalism.

In 2010, the Supreme Court heard the companion case to HellerMcDonald v. City of Chicago. Heller announced what our Second Amendment rights are with respect to action by the federal government. With McDonald, the Supreme Court announced what our Second Amendment rights are with respect to action by the States. The case involved a state gun control law, as opposed to a federal gun control law. The case arose in 2008, when Otis McDonald, a retired African American custodian living in a neighborhood fraught with robberies, shootings, and other crimes, and others filed suit to challenge provisions of a 1982 Chicago law that, among other things, generally banned the new registration of handguns and made registration a prerequisite of possession of a firearm. McDonald alleged that the law violated his right to possess and carry weapons, which the Supreme Court had found to be protected by the Second Amendment in District of Columbia v. Heller. In reaching a ruling in McDonald’s favor, the Court held that the Second Amendment is one of the liberty rights to be incorporated on the states thru the 14th Amendment, and therefore states cannot pass laws to violate or burden that right.

Together, District of Columbia v. Heller and McDonald v. Chicago cases articulate the view that the Second Amendment recognizes and protects an individual’s right to keep and bear arms for self-defense. The cases reach that conclusion after an in-depth and judicious review of the history and roots of the amendment.

However, and unfortunately, the cases have not seemed to stop the passage of gun-control laws or talk of more and more federal gun-control laws. Besides the general ignorance of many of our federal legislators and our state legislators, and the ever-important goal of disarming citizens to prevent their violence upon one another (always the risk in a free society), there are some limitations with the ruling and clearly ways government can get around it (or frustrate the exercise of the right protected in the Second Amendment:

(1) First of all, Dick Heller found no relief, even after spending 7 years litigating his challenge and winning perhaps one of the most significant cases in the Supreme Court. The ruling was not quite the sweeping gun-freedom victory he expected and it certainly didn’t go far enough to abolish burdensome gun permitting regulations, especially in his home of DC. Despite his court victory, he still was unable to acquire a gun permit. In the weeks since the Heller decision, the city hastily enacted a new and lengthy set of regulations and so when Heller went to the station with his revolver, he was told that he didn’t bring the many documents that the district had decided were required to register a handgun. He could take his revolver back home, he was told, but he would still have to keep it trigger-locked and unloaded. Not much had changed.

(2) Both the Heller and McDonald rulings addressed the right to keep and bear arms in one’s home. The lawsuit did not address whether the Second Amendment guarantees any right beyond that and hence the courts did not rule so. In October (of this year, 2019), the Supreme Court will hear a case, New York State Rifle & Pistol Association v. City of New York, which addresses this very question.

(3) Related to the question of whether the Second Amendment extends to gun rights outside one’s home, the Heller and McDonald rulings also leave open the question of whether conceal carry is covered.

(4) Scalia’s majority opinion in the Heller case included this proviso: “Nothing in our opinion should be taken to cast doubt” on longstanding regulations such as restrictions on felons “or laws imposing conditions and qualifications on the commercial sale of arms.” In his opinion, he wrote: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Apparently, Scalia was carving out areas where he believed Congress could rightfully legislate with respect to the Second Amendment. According to Robert Levy, who financed the lawsuit: “Everybody understood — or at least any reasonable person understood — that we can’t have 11-year-olds with machine guns in front of the White House when the president is delivering a speech. Some weapons can be regulated, some people can be regulated, like minors and felons and mentally incompetent people, and some circumstances can be regulated. Battles over defining those circumstances will be going on for a long time.” Why can minors be regulated with regard to firearms for self-defense? The probable answer is because they are mature enough and their brains have not developed to the point where they can intelligently and rationally predict or comprehend the consequences of their actions. Why can felons and mentally incompetent people be regulated? Liberty is understood as the free exercise of one’s inalienable and essential rights, to the point that such exercise doesn’t burden or violate another person’s equal rights. Felons have already proven that they are incapable of conforming their conduct to be consistent with the rights of others and hence our society deems that a rightful punishment is to deny them access to firearms. They cannot be trusted. Incompetent individuals in many cases can’t control their actions, thoughts, re-actions. They also cannot responsibly conform their conduct so as not to harm or invade the liberties of others. They are often unpredictable.

(5) In the Court’s eyes, which part of the Second Amendment will control what types of “arms” are covered? Will the courts use the prefatory clause (the militia) or the operative clause (individual right)?

(6) Members of the US Congress clearly have not read the Second Amendment, the Preamble to the Bill of Rights, or the Heller and McDonald opinions. They continue to push for more and more gun control and policies to permit government confiscation of firearms (Red Flag Laws). Ever since Andrew Jackson and then Abraham Lincoln, US presidents have argued that the office can assume undelegated powers (ie, unconstitutional powers) as long as the country or the American people need it to be so. In other words, they implicitly view the Constitution as either a “living, breathing document” or they have treated it as a dead document, something that presidents can choose to guide them but certainly not to confine them. The US Congress has, over the same time, done the very same thing and the courts have very often put a rubber stamp on their power grabs. It appears that Congress and the states will continue to violate the Second Amendment by claiming that they need to keep people, schools, federal buildings, churches, etc safe. If their laws are unconstitutional (note that each state has their own Bill of Rights, including a Second Amendment version, in their constitutions), they will simply amend the laws or pass new ones which may also be unconstitutional, but in the meantime will burden gun access and ownership, and will restrict carry.

In July 2008, less than a month after the Heller opinion was handed down and just after he still was unable to get a permit for his revolver, Dick Heller filed a lawsuit against the District of Columbia. (Heller v. District of Columbia II, or “Heller II”) challenging the new regulations DC lawmakers quickly put in place to save their gun law.

The case has been far more time-consuming than Heller expected. After parting ways with Gura and Levy, Heller enlisted Stephen Halbrook as his lawyer, the Second Amendment attorney that the NRA hired to try to block the initial Heller lawsuit. Again, after 7 years of litigation (punctuated by repeated changes by DC council’s to its gun regulations), Halbrook managed to win a ruling by a DC Circuit of Appeals panel in September 2015 invalidating 4 of the 10 restrictions Heller challenged. In 2016, the full DC Appeals Court agreed with the ruling. Halbrook and Heller have not signaled if they will seek Supreme Court review. [Mark Obbie, “He Won the Supreme Court Case That Transformed Gun Rights. But Dick Heller Is a Hard Man to Please”]

The provisions Heller II successfully invalidated include a requirement to renew gun permits every three years, a limit of one handgun registration per month, and requirements for permit holders to pass a test on D.C. gun laws and show up at police headquarters with the gun to be registered. Left intact, however, were the District’s registration requirement for long guns, a required safety class and registration fees for permit holders, and other obstacles to the sort of frictionless, gun-friendly city Heller wants D.C. to be. In October 2015 in an interview published in the magazine America’s 1st Freedom, the NRA’s official magazine. He said: “We still have to be registered and fingerprinted, so the worst part is we will still be treated like criminals, but the criminals won’t be standing in line to get in.” [Ibid]

Heller, who is now 76 years old, has been frustrated that he had to waste 14 years of his life just to have the rights Americans won and secured a long time ago vindicated in an American court. He assumed that officials who take an oath of office would be on the same side of the American people.

Later in 2008, after the Supreme Court handed down the Heller ruling, Dick Heller created the Heller Foundation. He then paired with the U.S. Bill of Rights Foundation in order to promote “a world where arms and self-defense rights are considered as essential to human life as food and water.” In such a capacity, on November 2, he signed on to an amicus brief filed by Larry Pratt and the organization he founded, Gun Owners of America, in a lawsuit that challenged the federal machine gun ban (passed as part of the 1986 Firearm Owners Protection Act). [Hollis v. Lynch]. Gun Owners of America argued that that possession of machine guns by Americans is compatible with the Second Amendment and that the amendment is not about not about hunting or target shooting, but about self-defense against individuals and/or the state. The amicus brief characterized machine guns as “the lineal descendants of founding-era firearms” fulfilling the ultimate purpose of the Second Amendment, “to allow the people to take up effective arms against a tyrant.” On June 30, 2016, the U.S. Court of Appeals for the 5th Circuit issued its unanimous opinion upholding the federal machine-gun ban.

What can we expect in the post-Heller and post-McDonald era with respect to gun rights? I think Robert Levy said it best: “Some weapons can be regulated, some people can be regulated, and some circumstances can be regulated. Battles over defining those circumstances will be going on for a long time.”

 

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REFERENCES:

Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” 2011, W.W. Norton & Company, NYC.

Don B. Kates Jr, “Why a Civil Libertarian Opposes Gun Control,” Civil Liberties Review 3 (June/July and Aug./Sept. 1976).

Don B. Kates, Jr. “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Michigan Law Review (MICH. L. REV.) 204-273 (1983).   Referenced: http://www.constitution.org/2ll/2ndschol/57mich.pdf

Robert A. Sprecher, “The Lost Amendment,” American Bar Association Journal 51 (1965).

William Blackstone, Commentaries on the Laws of England (1769).

Joseph Story, Commentaries on the Constitution of the United States (1833).

Malcolm, To Keep and Bear Arms (1994); pp. 31–53.

Dumbauld, The Bill of Rights and What It Means Today (1957); pg. 51.

William Rawle, A View of the Constitution of the United States of America (1825); pg. 122.

Supreme Court Opinion: District of Columbia v. Heller, 554 U.S. 570 (2008)https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

Complaint: Parker v. District of Columbia (2003), in the District Court for the District of Columbia – https://object.cato.org/sites/cato.org/files/pubs/pdf/gunsuit.pdf

Mark Obbie, “He Won the Supreme Court Case That Transformed Gun Rights. But Dick Heller Is a Hard Man to Please,” The Trace, March 20, 2016. Referenced at: https://www.thetrace.org/2016/03/dick-heller-second-amendment-hero-abolish-gun-regulation/

Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019.

Diane Rufino, “Making Sense of the Meaning and Intent of the Second Amendment: It’s Not Difficult Folks!,” May 23, 2017. Referenced at: https://forloveofgodandcountry.com/2017/05/25/making-sense-of-the-meaning-and-intent-of-the-second-amendment-its-not-hard-folks/

“Post Heller Jurisprudence,” Congressional Research Service, Updated March 25, 2019. Reference:   https://fas.org/sgp/crs/misc/R44618.pdf

DVD: “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006). Second Amendment Films LLC

United States v. Miller, 307 U.S. 174 (1939)

District of Columbia v. Heller, 554 U.S. 570 (2008)

McDonald v. Chicago, 561 US 742 (2010)

“North Carolina’s Ratification,” US Constitution – https://www.usconstitution.net/rat_nc.html

Resolutions of the Provincial Congress of Virginia (Patrick Henry) regarding the militia, March 23, 1775 – http://avalon.law.yale.edu/18th_century/res_cong_va_1775.asp

George Mason, the Virginia Declaration of Rights. Referenced at: http://www.history.org/almanack/life/politics/varights.cfm

Virginia’s Ratification of the Constitution, Elliott’s Debates (June 25, 1788) – http://teachingamericanhistory.org/ratification/elliot/vol3/june25/

The proposed amendments to the Bill of Rights submitted by the State of Virginia (June 27, 1788) – http://teachingamericanhistory.org/ratification/elliot/vol3/june27/

 

APPENDIX:

THE ROOTS OF THE SECOND AMENDMENT (taken from Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” 2011, W.W. Norton & Company, NYC; pp. 99-105, and Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019].

The roots of the Second Amendment go back to the days of feudal/medieval England, to the Militia laws. Men in England, and sometimes even teen boys were required by law to have firearms and to be trained in their use should the King need to call up a militia. Henry VIII, who reigned from 1509 – 1547, lowered the age of the males required to be trained to use guns. Under his rule, fathers were required to train their sons from age 7 and older in the use of firearms. “Bring them up in shooting!” The King had no standing army and therefore the Militia Laws were very important. Citizens could be called up at any time by the King to form the militia and so they had to always be in a state of readiness. In other words, citizens had a DUTY to keep and bear arms.

One hundred fifty (150) years later, in 1689, with the English Bill of Rights, this medieval “duty” to keep and bear arms became an “indubitable right.” (aka, an unquestioned right, a non-disputed right, a fundamental right, an inherent right). And the English Bill of Rights was a direct precursor or template to our US Bill of Rights.

How did this all happen?

Gun ownership transformed into a “right” during the tumultuous 17th century in England, and for understandable reasons. The transformation arose out of a conflict between King Charles I and Parliament. [Remember, Parliament is the so-called “people’s house; this is one of the rights the people wanted King John to recognize in the Magna Carta. If they were to be taxed, they wanted to have representation in those decisions]. Parliament refused to tax the people to provide the funding for the wars that Charles wanted to fight and so Charles disbanded the Parliament. He did so several times. He went on to tax the people himself, obviously violating their right to representation. Eventually, in 1642, civil war broke out and certain members of Parliament (called a “rump” Parliament), led by Oliver Cromwell, brought charges against Charles for high treason. He was captured, tried, and beheaded in 1649. His sons, the future King Charles II and King James II had fled to France at the time. At this point the monarchy was abolished and a republic established (the commonwealth of England).

After Cromwell died and his son took over, rather than stability in England, there was mass chaos. The people, out of sheer desperation, asked Charles II to come back to England, assert his right to the throne, and rule, which he did. The monarchy was restored. But what did Charles come home to? He returned to a country that turned on his father; a country that beheaded him. He also returned to a country that was very well-armed. Almost immediately, he sought to disarm the subjects and control the bearing of arms. He instituted serious gun control measures, both on individuals and on manufacturers. Gun manufacturers had to report to the King how many guns they manufactured each week and who purchased them. There were controls on the importing of guns, licenses were required for subjects who needed to move weapons around the countryside, and subjects had to report if they were traveling with a firearm. In the year 1660, King Charles II issued a series of orders to disarm those citizens that he deemed were – or would be – political opponents. One particular act that Parliament passed, in 1662, was especially repugnant. It was the Militia Act of 1662 and it gave militia officers the power to disarm anyone they believed was likely to be an opponent of the Crown. And at first, the Act was actively enforced. In 1671, Parliament passed the Game Act, which proved to be the greatest control over ownership of firearms that England ever had. The Game Act listed a whole host of weapons that were prohibited for hunting, and at the head of that list was guns !

Charles II died and having produced no heirs, he was succeeded by his brother James II. James II was a Roman Catholic, which concerned a lot of people, most of whom were Protestant (they believed Catholics were agents of the Pope, who they suspected of still trying to regain influence over the English kingdom.). But that was tolerated because he had no sons and his two grown daughters (Mary and Anne) were both Protestants; there seemed no threat that he would re-establish Catholicism in England. [Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019].

Within months of King James II’s ascension, two rebellions were launched to attempt to topple him from the throne. James was able to suppress them easily, but the experience led him to conclude that he needed a sizeable standing army to protect him from future rebellions. He also thought that he would be better served by an army that included some friendly Catholics. Even though it was against the law, he appointed Catholics to positions of authority within the military. The Archbishop of Canterbury, one of the most important figures in England, petitioned James to reconsider some of his policies but James responded by imprisoning him in the Tower of London. When members of Parliament objected to his conduct, James turned around and suspended Parliament for the rest of his reign. He was within his recognized authority as King to do so, but the controversial move inspired his opponents to plot to have his reign end prematurely. [Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America,” pg. 100]

To lower the risk of a rebellion, James decided to take advantage of certain laws that were passed before his reign, particularly the Militia Act of 1664 and the Game Act of 1671, to confiscate as many firearms from potential political opponents as he could. The Militia Act of 1664 authorized the King’s deputies to seize the weapons of anyone deemed to be “dangerous to the Peace of the Kingdom.” To James, that meant all Protestants, who comprised 98% of the English population. He ordered gunsmiths to deliver up lists of all gun purchasers and the guns purchased. He used the Game Act of 1671, which, in the name of protecting wild animals from over-hunting, barred gun possession by anyone “not having Lands and Tenements of clear yearly value of one hundred pounds,” to disarm commoners. In other words, gun ownership would be limited to a certain class of subjects. [Ibid, pp. 101] According to the historical record, the orders were apparently not carried out. But the actions of the King to disarm his subjects certainly arose concern and fear among the people of England.

In 1688, James’ wife gave birth to a son, alarming Protestants. Since a son would be heir to the throne, the threat of a Catholic dynasty was all of a sudden a very real possibility. James’ 26-year-old daughter Mary was among those who suspected that the newborn was not even James’ child. Her husband, William of Orange, who was Dutch, shared her suspicions. Personally, he had aspirations of sitting on the English throne. It was finally in 1688 that the English people had had enough. A group of eminent English noblemen who were determined that James needed to be removed from power invited William and Mary to England and suggested that they form an army to help them should they need it. With Dutch soldiers, William launched an attack, and James, who lacked any solid support from either the people of England or even his own army (or from Parliament) was forced to abandon the throne. With barely a fight, James fled to France, abdicating his throne in favor of his daughter and her husband – William and Mary. In early 1689, the Parliament anointed William and Mary as joint sovereigns. They would rule as King and Queen together… but there would be conditions. [Ibid, pp. 101]

To scholars of English history, the toppling of King James II became known as the Glorious Revolution (or Bloodless Revolution). What made the revolution so glorious was not just that James was forced to flee and that Protestants returned to power without much bloodshed, but that the English people finally had a chance to secure their rights and liberties in a more permanent document. As a condition to being offered the throne, William and Mary had to agree to abide by the laws of Parliament and exercise only limited, rather than absolute, power. They also had to promise to respect the individual rights of Englishman – rights that were initially petitioned for in the Magna Carta of 1215, re-presented in further petitions, and codified, finally, on December 16, 1869, in what was called the English Bill of Rights. [Ibid, pp. 102]

The English Bill of Rights proclaimed that James had violated “the Laws and Liberties of this Kingdom.” By imprisoning people like the Archbishop for merely complaining about the king’s edicts, James had trampled on the right of Englishmen to petition the government for redress of their grievances. By arresting people for no lawful reason, he had violated the rights of Englishmen to due process of law. “By causing several good Subjects, being Protestants, to be disarmed,” he had ignored “true, ancient, and indubitable rights.” The English Bill of Rights reaffirmed the importance of these rights, including a provision on personal weapons. “Subjects which are Protestants may have Arms for their Defense suitable to their Conditions and as allowed by Law.” [Ibid, pp. 102]

In the years after the Glorious Revolution, the right of English Protestants to have guns was recognized as an individual right – a right related to self-defense self-protection, and not a right related to the duty to serve in militias. Indeed, by 1688, and enshrined in the Bill of Rights of 1689, the duty to be armed became a right. One of the rights of Englishmen became the right to have arms for self-defense and to resist a tyrannical king (or government). [Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not)”]

William Blackstone, the 18th century jurist whose Commentaries on the Laws of England are still cited today as the authoritative account of old English law, described the English Bill of Rights as recognizing “the right of having and using guns for self-preservation and defense.” The right to have arms, he wrote, was “an auxiliary right necessary to preserve the basic rights of man: personal security, personal liberty, and private property.” English court cases from the 1700’s were in agreement. Judges, like those in the 1744 case of Malloch v. Eastly, repeatedly recognized that it was “settled and determined” law that “a man may keep a gun for the defense of his house and family.” [Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America,” pg. 102]

Between 1603 and 1776, the rights of Englishmen became the rights of Americans. In 1661, with the constant threat of hostile Indians and hostile French and Dutch settlers, the colony of Virginia required all able-bodied men to have firearms and be trained monthly in their use. Each county had chief militia officer.

As relations with Great Britain began to deteriorate, especially after the Boston Tea Party and the punishing response by the King and Parliament with the Intolerable Acts [which shut down Boston Harbor, abolished the Massachusetts colonial government, installed a British General (General Gage) and his redcoats in its place, and established the Quartering Act], the colonists began to collect firearms and stockpile gunpowder and artillery. And not just in Massachusetts. Word was spreading among the colonies of the growing tyranny by the King.

It appeared the British Crown once again was planning to disarm political opponents.

One of the measures planned was the confiscation of colonial guns by order of the King. In 1774, King George III ordered that all exports of firearms and ammunition to the colonies cease. And the next year, he ordered British Commanders to disarm certain provinces, especially in the North. Boston, for example, was put under military occupation and General Gage was tasked to disarm the most unruly colony of all – Massachusetts.

By 1774, being made commander-in-chief of all British forces in the New World, Gage was the most powerful man in the America. When he learned from one of his many “spies” that spring that the colonists (which he termed “rebels”) were secretly stockpiling guns and ammunition in an arsenal located in nearby Concord, Gage ordered 700 troops, on April 19, 1775, to seize the arsenal (seize the weapons and destroy the ammunition). The night before, Paul Revere set on his famous midnight ride to warn the people that the British were coming to take their guns. He didn’t cry out “The British are coming, the British are coming,” as legend has it; rather, he had to whisper the message to trusted friends only for the outskirts of Boston were filled with loyalists. (Luckily there were other riders because Revere ended up being captured by the Redcoats. He was released but they kept his horse). On their way to Concord, the troops passed through Lexington where they encountered a small group of colonial militiamen. The Redcoats and the colonial militiamen stood face-to-face on Lexington Green on the morning of the 19th. A shot went off (no one knows how it happened), but the response was immediate. Shots rang out and an armed conflict between England and Massachusetts had begun. The revolution had begun.

It appeared that complete disarmament of the colonies would be inevitable.

Virginians began to stockpile their ammunition in Williamsburg, in anticipation that British troops would come to subjugate them as well. A general alarm was spreading among the colonies – fueled by men like Samuel Adams and John Hancock, Patrick Henry and Thomas Paine – that the British were removing gunpowder from the public stock in order to render the colonists unable to resist the Crown… just as King Charles II and King James II had done to their subjects approximately 100 years ago in England. It was this general alarm that prompted Patrick Henry to introduce resolutions at a secret meeting of the colonial legislature to raise up the militia in every county and train them as quickly as possible. He believed so strongly that this was necessary that he gave that impassioned speech we all associate with him – “I know not what course others may take; but as for me, give me liberty or give me death!”

Patrick Henry was right, war was coming. And he was also right about the intent of the British to disarm the colonies. Just weeks after his famous speech at St. John’s Church in Richmond, Virginia’s royal governor ordered British sailors to raid the armory at Williamsburg and to take the gunpowder back aboard their ships, which they did.

Thus, the American revolution started over our RIGHT to keep and bear arms. Tensions with Great Britain may have started over the right not to be taxed without representation in Parliament (the body from which such taxing measures arose), but the actual revolution itself erupted over the actions of the Crown to disarm the people.

So, the colonies won their independence, and the next step was to form a common government and our Bill of Rights. How did we get the language of our Second Amendment and what does it mean? First of all, our Founding Fathers borrowed liberally from the English Bill of Rights, including the right to Petition Government in the First Amendment, the right of Due Process in the Fifth Amendment, and the Right to Keep and Bear Arms in the Second Amendment. These were rights that they enjoyed and held dear as Englishmen and believed traveled with them to the New World.

Looking at the Constitutions and Bills of Right of our original 13 states, there were at least three colonial models to address the right to arms:

The Virginia Declaration of Rights read: “That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state….”

The Pennsylvania Declaration of Rights read: “The people have a right to bear arms for the defense of themselves and the state.”

The Massachusetts Bill of Rights read: “The people have a right to keep and to bear arms for the common defense.”

We can see the two views of our Second Amendment embodied in these colonial Bills of Rights.

Fast-forward to the US Constitution and the ratification process whereby the states were debating whether to adopt it. New York ratified it, but only conditionally – conditioned on the addition of a Bill of Rights. Virginia narrowly ratified it, but those against its adoption, most notably Patrick Henry, held all the power in state government. They were going to call for another Constitutional Convention to alter Madison’s Constitution, and they were going to appoint all anti-Federalists to the US Senate and draw up Congressional district maps to ensure all anti-Federalists were elected to the first US House. Madison, who wanted to be seated in that first government, would be shut out. The state legislature, with Henry wielding great power, had already denied him an appointment to the Senate (this was before the 17th amendment) Eventually, Madison made a compromise. If he were elected to the first US House, he promised to introduce a Bill of Rights for the States.

In fact, his state of Virginia had proposed a Bill of Rights for the new constitution, including a precursor to our Second Amendment, which included language from all three colonial models – Virginia, Pennsylvania, and Massachusetts.

On June 8, 1789, in the first US House, James Madison made true on his promise and he introduced a set of amendments to add a Bill of Rights to our Constitution. His Second Amendment read: “The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

The first Congress shortened Madison’s proposal so that it read: “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.”

The important thing to note in this historical review is that the Second Amendment is actually two separate thoughts. It was the conscious and intentional design of our Founders to express the right to arms in the broadest terms possible, to be understood in its broadest sense.  [Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not)”].

References:

Diane Rufino, “The History of the Second Amendment Teaches Us its Meaning and Intent (Liberal Judges and Professors Do Not),” January 14, 2019.

DVD: “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006). Second Amendment Films LLC

Diane Rufino, “Making Sense of the Meaning and Intent of the Second Amendment: It’s Not Difficult Folks!,” May 23, 2017. Referenced at: https://forloveofgodandcountry.com/2017/05/25/making-sense-of-the-meaning-and-intent-of-the-second-amendment-its-not-hard-folks/

Adam Winkler, “Gun Fight: The Battle Over the Right to Bear Arms in America.” 2011, W.W. Norton & Company, NYC.

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OBERGEFELL v. HODGES: The Scathing Dissent by Chief Justice John Roberts Explains Why the Majority Opinion Was an Abuse of Judicial Power Under the US Constitution

 

GAY MARRIAGE - Mitch and Cam (2)

by Diane Rufino, March 16, 2018

“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”  — Chief Justice John Roberts, dissenting opinion, Obergefell v. Hodges (2015)

I’ve been writing articles for years, mostly to help enlighten and educate others who may not have the time or opportunity to read as much as I have. The Tea Party movement – whether you choose to believe it to be a physical grassroots movement to help return our country to its intended constitutional design or a intangible gut reaction by the American people in response to years of destructive progressive policies that have resulted in our large, bloated, ineffective, wasteful, overly-imposing, over-regulating, aggressive, elitist, condescending, above-the-law, and unconstitutional government and in too much intrusion in their lives, too many conditions on their rights, and too much control over their decisions and their property – has awakened a new era of patriotism. It has resulted in a return to education on our founding documents and founding values, it has resulted in a good chunk of the American people wanting to understand how our government got so oft-kilter and how such disastrous policies resulted from it, it has resulted in a good chunk of the American people devoting their spare time to “watchdog” activities in which they watch and research actions by their local, state, and federal officials, it has resulted in a good chunk of the American people keeping informed and updated on the issues, and it has resulted in a good chunk of the American people (true conservatives) taking an active role in politics and committing themselves to finding and supporting conservative, fiscally-responsible, constitutionally-minded individuals for office. The Tea Party movement, again, whether a physical grassroots movement or simply the gut reaction of individuals to reaffirm America’s ideals, has spurred a new “revolutionary” spirit in this county, determined to reel back the disastrous policies of the past half of a century or more, determined to bring back the absolute protections of our founding generation for the rights and declarations recognized in the Bill of Rights, including religious liberties, the right to have and bear arms, free speech, and the reserved powers of the individual (free) states.

And so, most of what I write seeks to educate on what our Founding Fathers sought to establish with this union of states that we call the United States and then what they, in fact, did establish. I spend a lot of time writing about history and the using history to explain the meaning and intent of our founding documents, including the Declaration of Independence, the Constitution, and Bill of Rights. I also spend a lot of time writing about the different remedies to address the various violations by the three branches of government. The hope in all my writings is to help Americans adopt the proper mindset necessary to recognize abuses by the federal government (and why they are abuses) and to then seek the proper remedies in order to stem the obvious slide into government tyranny that we have been witnessing over the past many years (but which is now in overdrive). The proper mindset is the key. The hope is, through education and a re-acquaintance with our founding principles (and the compelling history behind them), to spark a fire in them which reminds them of the American revolutionary spirit: “We don’t have to take it!”  To take the abuse that government unconstitutionally exercises is to give up on the American dream of our founding generation, to give up on the notion that individual liberty is worth defending, and to willfully give up the awesome responsibility we have as Americans to preserve what was handed to us by our forefathers to subsequent generations.

The first step, of course, is to recognize the violations committed by the branches of the federal government –  all three of them. And then, most importantly, to seek to do something about them.

We’ve heard of abuses of power by the federal legislative branch and by the executive branch. The Affordable Care Act (“Obamacare”), as written, intended, and passed by Congress on March 23,2010, was an unconstitutional piece of legislation (the Supreme Court admitted so, exceeding the limits of the Commerce Clause, upon which the government attempted to support its authority) and portions of the 2017 National Defense Authorization Act (NDAA) are as well [the annual military budget continues, from the 2012 NDAA, to include a provision which allows for the indefinite detention of American citizens without a right to trial, undermining essential guarantees provided by the Bill of Rights, including the Fourth and Fifth (Due Process) amendments, and as well as the guarantees provided to an “accused”]. The mass surveillance and collection of ordinary citizen’s phone data is an unconstitutional violation of the Fourth Amendment. The Federal Grant and Cooperative Agreement Act, as well as other federal grant-related legislation, which seek to do an end-run around the Constitution by funding state projects with federal conditions and strings attached, are probably unconstitutional as being without a proper grant of authority under Article I, Section 8 (“to provide for the General Welfare” is not in and of itself a separate grant of power and hence also not legitimate under the taxing and spending power). The Reconstruction Acts were unconstitutional and the Depression-era programs created by Congress during FDR’s administration were unconstitutional. Any proposed gun control law raising the age to 21 for the purchase of handguns would be unconstitutional. President Obama’s executive department weaponized the IRS to target Tea Party and other conservative groups only and prevent them from organizing and thus minimizing their effect in the 2012 election. His Justice Department weaponized the FISA program to go after the Trump campaign in an attempt to effect the outcome of the 2016 presidential election and then (when Hillary didn’t win), to fabricate a false claim of collusion with the Russians to poison his presidency.

In all these instances, the legislative and executive branches have exceeded or are exceeding the power to govern delegated to them by the States in the US Constitution.

But what no one talks about is the abuses by the third brand of government, and perhaps the most powerful one – the judicial branch. Everyone assumes that its opinions are legitimate exercises of judicial power. We so often hear the line: “Well there’s nothing we can do about it now. The Supreme Court has spoken.” The men and women in black robes who sit on the federal benches have immense power. And all too often, they abuse it.  We’ve all heard of judicial activism – the making of law from the bench, which is unconstitutional as violating the Separation of Powers doctrine, or the ruling on “political matters” which is unconstitutional under the Political Question doctrine, or the ruling on matters not addressed in the Constitution which is unconstitutional since the courts only have legal jurisdiction on the interpretation of the Constitution and laws made in furtherance of its legitimate powers. The problem is that no one can do anything about it.  Or they just aren’t willing to.

Some Supreme Court cases which are likely unconstitutional are as follows:  Flemming v. Nestor (1960, in which the Court substituted its judgement for the Congress and recharacterized Social Security deductions, declaring that amounts taken out of an employee’s paycheck for the Social Security program are no longer personal property but property of the federal government so that Congress can have flexibility to use the money as it believes is necessary), Everson v. Board of Education (1947, in which the Court erected the “Wall of Separation” between Church and government to set a boundary on the Establishment Clause; the “wall of separation” is a legal fiction and has no basis in law or commentary on the meaning or intent of the Constitution), Roe v. Wade (1973, in which the Court not only usurped a rightful reserved power of the individual States, in violation of the tenth amendment, to regulate on abortion, but also found a fundamental right to an abortion on demand in the Constitution, thus denying the right to life to an unborn even up to the very moment prior to its delivery), Swann v. Charlotte-Mecklenburg Board of Education (1971, in which the Court not only made law from the bench but also usurped a rightful reserved power of the individual States, in violation of the tenth amendment, to regulate on education; there is NO constitutional basis to force states to bus its children arbitrarily to schools out of their residential area to meet racial quotas), Miranda v. Arizona (1966, in which the Court ruled, without any basis to do so, that special guarantees – in the form of the Miranda Warning – are needed to protect the constitutional rights in the 5th, 6th, and 7th amendments of a criminally-accused; again the Court established constitutional policy and guidelines for law based on a legal fiction), National Federation of Independent Business v. Sebelius (2012, the “Obamacare” decision, in which the Court substituted its judgement for the Congress re-characterizing the mandate from a “penalty,” as Congress intended, to a “tax,” and in doing so saving the law from being struck down as unconstitutional under the Commerce Clause to being supported by the Taxing power; note that the recharacterization was still an unconstitutional use of the taxing power because the mandate still “acts” like a penalty or punishment, which is an improper, and unconstitutional use of the taxing power), and Obergefell v. Hodges (2015, in which the Court usurped the legitimate reserved power of the individual States to regulate on marriage).  With respect to Circuit Court decisions, those striking down President Trump’s travel bans are unconstitutional (the president has the express and unlimited power to regulate on which persons or groups of persons can come into the country) and the opinion of the Fourth Circuit in 2016 (NC State Conference of the NAACP v. Pat McCrory) striking down the NC Voter ID law (not only substituting its judgement – an offensive and defamatory judgement by the way – for that of the state legislature and also ignoring the Supreme Court’s holding in Shelby v. Holder, in 2013, striking down the preclearance requirement of the Voting Rights Act of 1965, but blatantly usurping the legitimate reserved power of the State of North Carolina under the tenth amendment to regulate its elections and violating Article IV, Section 4 of the US Constitution which assures that the federal government will guarantee each State a democratic form of government) is unconstitutional.

Addressing an audience at a Pew Forum Conference (themed: “A Call for Reckoning”), Justice Antonin Scalia spoke these words: “My difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe – and no one believed for 200 years – that the Constitution contains a right to abortion. The Constitution gives the federal government and, hence, me, as a justice of the Supreme Court, no power over the matter.”  He continued: “The Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution – not, that is, without volunteering a judicial answer to the nonjusticiable question of when human life begins. Leaving this matter to the political process is not only legally correct, it is pragmatically so. That alone – and not lawyerly dissection of federal judicial precedents – can produce compromises satisfying a sufficient mass of the electorate. The Court should end its disruptive intrusion into this field as soon as possible.”

The Supreme Court may have given itself the final word on the meaning and intent of the Constitution and the laws made in furtherance of it (Marbury v. Madison, 1803; see below), but it was the ambitions of the progressive movement at the end of the 19th century which led to an even more expansive, and dangerous, view  of the judiciary. In this progressive expansive view, federal courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash. Since federal judges and justices are appointed for life, they can do what they like from the bench without voter backlash, including ignoring the legal meaning of the Constitution.

“What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, wrote Justice Scalia in his dissenting opinion in the case Wabaunsee County, KS v. Umbehr (1996), ”that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?”

The judiciary is truly an untouchable branch.

Again, the problem is that no one can, or is willing, to do anything about the abuse of constitutional powers with respect to the Supreme Court or lower federal court opinions that are final decisions. Yet there are rightful remedies that I have written about, including nullification and interposition.

 

THE FEDERAL JUDICIARY

SUPREME COURT (2017)

The facts of the case are simple enough.  In the last days of President John Adams’ presidency, he nominated a number of people to serve as justices of the peace for the District of Columbia. The Senate confirmed the nominations, and the commissions were prepared. President Adams’ Secretary of State, John Marshall, did not deliver all of the commissions before President Thomas Jefferson took office on March 4 (because he was also acting as the newly-appointed Chief Justice of the Supreme Court, being sworn in on Jan. 31). President Jefferson then ordered his Secretary of State, James Madison, not to deliver the commissions. The plaintiffs, men who were appointed but whose commissions were not delivered, sued Madison in the Supreme Court and argued that, in refusing to deliver the commissions, the Secretary of State was neglecting his Constitutional duty. The important detail is that they sought relief in the Supreme Court, under its original jurisdiction (court of first review, not as an appeal), which was a remedy specifically provided in the Judiciary Act of 1789. They could have sought their commissions through other avenues but the particular remedy they pursued was through the Judiciary Act.

The Court, with Marshall as its new chief justice, dissected the case into three questions: (1) Do the plaintiffs have a right to receive their commissions?  (2) Can they sue for their commissions in court?  (3) Does the Supreme Court have the authority to order the delivery of their commissions?  The importance of the case is not in the answers to these questions but in the opportunity that Marshall used to articulate a critical role for the Supreme Court and in doing so, securing it as an omnipotent branch of the government.

In its answers to the above questions, the Supreme Court held that the Constitution grants the president the power to appoint and commission officers of the United States. Because the only evidence of the appointment is the commission, the two actions are tied together. Without the commission, the appointment is not complete, and so the president’s signature on the commission and its delivery are the final steps in the appointment process.  However, the Court held, once an appointment is made, the officers have acquired rights to their positions under the law. If those rights are denied, then they may seek redress in the courts. But the fatal decision that Marbury made, and the others as well, was to seek an original action for their commissions in the Supreme Court. As Marshall noted, the congressional act, the Judiciary Act of 1789, conferring that authority to the Court conflicts with Article III Section 2 of the Constitution. The judicial power in the United States extends to all cases under the Constitution and the Supreme Court is bound to decide cases according to the Constitution rather than the law when the two conflict. So, if a law is found to be in conflict with the Constitution, then the law is invalid (= “judicial review”).  In this case, Section 13 of the Judiciary Act ran counter to the Constitution and is therefore void. Thus, lacking authority, the Supreme Court canceled Marbury’s claim.

In other words, although Marbury was entitled to his commission, the Supreme Court was unable to grant it because Section 13 of the Judiciary Act of 1789, assigning that power to the Court, conflicted with Article III Section 2 of the U.S. Constitution and was therefore null and void. Marshall articulated that this analysis (judicial review) was the process by which to maintain the supremacy of the Constitution. He was not the first to articulate or apply judicial review; the state courts were already applying such analysis for their own constitutions. But, he reasoned, one court must be responsible for interpreting the Constitution and saying what the law is and that court MUST be the US Supreme Court (ie, the federal courts). “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”  Marshall advanced a position not assigned in the Constitution nor articulated in the essays explaining the Constitution and its provisions, as well as the anticipated operation of the federal government.

The next assault on the design of the federal government, at the hands of the Supreme Court, came in 1819 with the case of McCulloch v. Maryland. In that case, Chief Justice Marshall considered the question of how to construe the government’s powers in Article I, Section 8 – namely thru the “Necessary & Proper” Clause (a common legal clause included in contracts to give force to the responsibilities listed in the contract; in Article 8, it gave force (but strict limits) to all the powers enumerated before it). In considering that question, he reviewed advice given to President George Washington by both Thomas Jefferson, his Secretary of State and a man devoted to a small government of limited powers, and Alexander Hamilton, his Treasury Secretary and a proponent of a large government of concentrated powers, as to whether his administration had the power to establish a national bank, as Hamilton requested. Jefferson, naturally, advised that the government’s powers in the Constitution must be construed exactly as written, and thus construed narrowly, while Hamilton advised that they need to be construed broadly. Washington sided with Hamilton. And so did Marshall. Writing for the Court in McCulloch, Chief Justice Marshall interpreted the “Necessary & Proper” Clause (government can do whatever is “necessary and proper” to carry out its functions) to mean that the government can do anything it feels is “convenient” and makes it easier to carry out federal power. He articulated that Congress possesses unenumerated – or “implied” – powers not explicitly outlined in the Constitution, and thus, the government is one essentially of unlimited powers.

John Marshall, the fourth Chief Justice of the United States, appointed by President John Adams, presided over the Supreme Court longer than any other occupant of that chair – for 34 years (1801–1835). Because the Court was a relatively insignificant legal forum when he arrived but became the most powerful court in the land by the time he died, Marshall, for bad or good, is justly the most celebrated judge in our history.  The federal courts were a particular area of interest for outgoing President Adams in the wake of the presidential election of 1800. With the Federalists soundly defeated and about to lose both the executive and legislative branches to Jefferson and the Democratic-Republicans, Adams and the lame duck Congress passed what came to be known as the Midnight Judges Act, which made sweeping changes to the federal judiciary, including a reduction in the number of Justices on the Supreme Court from six to five (upon the next vacancy in the court) so as to deny Jefferson an appointment until two vacancies occurred. As the incumbent Chief Justice Oliver Ellsworth was in poor health, Adams wanted to replace him with a younger justice before he left office. He first offered the seat to ex-Chief Justice John Jay (one of the authors of the Federalist Papers essays), who declined on the grounds that the Court lacked “energy, weight, and dignity.” But because there was precious little time left, Adams nominated Marshall, then aged 45, who just happened to be his Secretary of State at the time. Marshall was confirmed by the Senate on January 27, 1801, and received his commission on January 31. While Marshall officially took office on February 4, he continued to also serve as Secretary of State until Adams’ term expired on March 4. President John Adam, who died a few hours after Thomas Jefferson on the 50th anniversary of the signing of the Declaration of Independence, July 4, 1826, had this to say about his appointment of Marshall: “My gift of John Marshall to the people of the United States was the proudest act of my life.”

John Marshall’s legal training comprised three months of attending the law lectures of George Wythe at the College of William and Mary. In fact, these three months were his only formal education since grammar school. Nevertheless, he was admitted to the practice of law immediately after those lectures, in 1780.

Marshall’s legacy is indeed an enlargement of the powers of the Supreme Court and the federal judiciary in general.  (It should be noted that at the time, the Supreme Court met for only three months out of the year and during the other months would “ride circuit,” which meant they would serve on the lower federal courts, the federal courts of appeal or district courts, filling in wherever they could).

Ironically, it was Chief Justice John Marshall, the man who wrote: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs” who, in fact, forgot that it was a constitution he was expounding, intended to endure for ages to come.

So Jefferson was right about the potential of the Supreme Court after all. In a letter to his friend Edward Livingston in 1825, he lamented over what the judiciary had already become: “This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”

In 1821, Jefferson wrote to his friend Charles Hammond: “It has long been my opinion, and I have never shrunk from its expression,… that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary–an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed…..  When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”

In 1820, he wrote to William Jarvis: “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.”

Also in 1820, he wrote to Thomas Ritchie: “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our Constitution from a co-ordination of a general and special government to a general and supreme one alone.’”

James Madison also warned of the dangers of a powerful federal judiciary.

In a letter James Madison wrote on October 15, 1788 to a former roommate of his, John Brown (of Kentucky), he wrote: “Refusing or not refusing to execute a law to stamp it with its final character . . . makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper.” In his famous Report of 1800 (aka, “Committee Report on the Alien & Sedition Acts”), Madison warned: “On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”

A limited and reserved judiciary was anticipated at the time the union was established, in 1788.

To convince the States of the limited nature of the federal government created by the new Constitution of 1787, and hence encourage them to ratify it in their conventions, Alexander Hamilton outlined exactly the position that the federal judiciary would occupy in the new government scheme in his Federalist Papers essays. Its role would be simply to offer an “opinion” on constitutional questions to the other branches and to the States. In his essay No. 78 (dated June 14, 1788), in which he articulated the role of the federal judiciary under the US Constitution, Alexander Hamilton articulated: “The Judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will.”  Further in that essay, he wrote: “And it proves, in the last place, that liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”  In his essay No. 81 (dated June 25, 1788), also addressing the federal judiciary, Hamilton wrote: “In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.”

The States relied on the commentary and explanations in the Federalist Papers in ratifying the Constitution, and also on the promise that a Bill of Rights would be added to further limit the power of the common government. They would not have agreed to leave all decisions as to the extend and scope of federal power completely and exclusively to the federal government itself.

The Supreme Court, and federal courts in general, are the most threatening branch of the federal government because they have the power to alter and re-interpret the Constitution, in effect, to “re-write” it without the legal requirement of going thru the Article V amendment process. The other branches merely ignore the Constitution or are ignorant to the authority it grants and the limitations it requires. They are also the most threatening branch to our democratic process because they can circumvent the democratic process on social issues without any repercussions at the ballot box.

In a speech he delivered to the class at Catholic University, Columbus School of Law, he said: “Robert F. Kennedy used to say, ‘Some men see things as they are and ask why. Others dream things that never were and ask why not?’  That outlook has become a far too common and destructive approach to interpreting the law.”

Before he passed, Justice Antonin Scalia was quoted from an interview he did with Bloomberg magazine: “It is difficult to maintain the illusion that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily.”

On February 24, 2002, Senator Dianne Feinstein (D-CA), a member of the Senate Judiciary Committee member, let it slip on NBC’s “Meet the Press” that she would oppose appeals court nominee Charles Pickering because he had ‘right-wing views, both politically and personally.’

At least she admitted what we all knew – that judges to the federal courts, including the Supreme Court, are selected based on their political views.

In his article “The Judiciary: The Strongest and Most Dangerous Branch?”, Tom Jipping wrote: “Ask yourself this question: why are political or personal views a qualification to be a judge rather than, say, politician? What is it that Senator Feinstein thinks judges do that makes their political and personal views important?”

This is, at the core, why we have such a problem with the federal courts. This is why each president ambitiously appoints judges to the federal courts. This is what the debate over the power and appointment of judges is all about. Political and personal views should NEVER determine fitness to serve in the judiciary.

Jipping continued: “A judicial nominee’s political or personal views are relevant for only one reason; because one thinks those views determine judicial rulings. That is, judges are free to make decisions based not on the law, but on their own personal views. Stating that view is enough to expose its danger to our liberty. Government decisions based on political or personal views are political decisions, made by those we elect to make our laws and over whom we have electoral control. Judicial decisions must be based on law, not on political or personal views. Our liberty depends on them separating law from politics.  You are no doubt familiar with the phrase “a government of laws, and not of men.” But how many know where it comes from? It appears at the end of Article 487 of the Massachusetts Constitution of 1780. Article 487 says that “the judicial [branch] shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws, and not of men.”

If judges base their decisions on their political or personal views, they are not interpreting. They are making law or transforming the Constitution or the law they are reviewing. They are bending or conforming the Constitution or law to their political or personal views. This is what is meant by a government of men and not a government of laws.  We have no security for our liberty with a government of men.

Justice Scalia confirmed the sake in his remarks before the Philadelphia Bar Association on April 29, 2004: “As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”

Our current Supreme Court has a split nature. Four of the justices base their decisions on political and/or personal views; these are the liberal justices. The Constitution has no firm meaning to them. Another four justices strictly construe the Constitution, just as they would a contract, believing the document means what it says and continues to mean the same thing until properly amended; these are the conservative justices. So, apparently we have a hybrid government – partly a government of men and partly a government of laws. It is the ninth justice, the swing-voter, who has the last word on the matter.

Law Professor Robert E. Riggs wrote, in his 1993 Hofstra Law Review article “When Every Vote Counts: 5-4 Decisions in the Supreme Court, 1900-1990”:

“The word of the Supreme Court is the law of the land. From the decision of its nine appointed Justices there is no appeal and, for most disappointed suitors, no legal redress at all. The losers in a case of wide public interest might hope someday to seek a legislative remedy, but the process of legislative redress is slow, cumbersome, and uncertain. When the issue turns on the meaning and application of the US Constitution, the decision is truly final, subject to modification only by constitutional amendment or by a subsequent Supreme Court. The exercise of such awesome lawmaking power by so few nonelected public servants is a paradox in a democratic society, and the paradox is heightened when the issue is close. In a nine-member court, five votes are sufficient to determine the outcome, even if four strongly dissent. In the early decades of this century, when 5-4 decisions were few and unanimity was the rule, critics of the Court often suggested that decisions by a single vote – especially when voiding a statute – were somehow illegitimate. Today, Supreme Court decisions still give rise to criticism and protest and, in extreme cases, public agitation to overturn them. Criticisms of such decisions are primarily substantive, however, and the procedure that gives the same legal weight to a 5-4 as to a 9-0 decision is seldom challenged.

The 5-4 decisions of the United States Supreme Court highlight the essentially political nature of the body. The ideal of nine jurists collectively resolving disputes according to the dictates of the law and the Constitution is superseded by an image of nine Justices voting individual preferences in situations where substantive rules seem to provide little guidance. Both the ideal and the image are caricatures-the unanimous decisions tending toward one extreme and the 5-4 decisions toward the other-but each reflects elements of the complex underlying reality of Supreme Court decision-making. Until well into this century, unanimity was the dominant image. Published dissent was limited to a small fraction of decided cases, with 5-4 decisions still less frequent. This frequency does not necessarily portray a Court governed more by principle than by personal preference.”

The inability for 9 justices to be able to see eye-to-eye on the meaning and intent of the Constitution, including all its provisions limitations, should be exceedingly troublesome to every American, especially when there is ample commentary, explanations, warnings, discussions, debates on the merits, and direct instructions by the drafter himself (James Madison), the delegates who – through robust debate and discussion – worked together to put it in its final form, the men who wrote the Federalist Papers (the greatest authority as to the meaning and intent of the Constitution; written by Madison, Alexander Hamilton, and John Jay), the Founding Fathers who helped guide its ratification in the State conventions, and the Congressional record.  No Supreme Court opinion should ever include any interpretation of the Constitution or its provisions/limitations that differs in any way, shape, or form from any of the authorities just mentioned. Yet we see it all the time, especially after the turn of the century (post 1900).  5-4 opinions, which account for about 30% or more of the total opinions of the more recent Supreme Court, should call into question the ability of the Court to be able to effectively, objectively, and responsibly maintain the integrity of our great document. And if the highest court of the land cannot do so, then it should cease to be the final arbiter on constitutional matters. Otherwise, our Constitution is in grave danger and our constitutional republic is as well.  There is no confidence in a court decision that is 5-4.  Because there is no consensus by court members in such a split opinion, there is no comfort among the people that the Constitution was faithfully, diligently, ethically, and dutifully interpreted. They know that the Court is a highly politicized tribunal. It’s nature has become political. They know that one half of the Court truly understands what the Constitution says and requires and the other side intentionally rejects that position. The approval or disapproval of the opinion rests with the vote of the swing voter. The 5-4 decisions of the United States Supreme Court highlight the essentially political nature of the body.

There are many federal court opinions which represent an abuse of judicial power – a political opinion rather than a constitutional one. Some are clear abuses and some are subtle. I have mentioned a few of the more blatant ones above.

To the trained constitutionalist – again, this being the goal of my writings – each and every violation is – and would be – apparent. One simply needs to be well-educated or well-versed on the Constitution and its history.

 

THE DISSENTING OPINION IN THE OBERGEFELL OPINION

SUPREME COURT - conservative members (2017) - minus Kennedy

In some cases, the dissenting justices accuse the majority of reaching an unconstitutional opinion, and often explain why. One such case is the Obergefell case. The Obergefell opinion is clearly an unconstitutional decision – one of obvious over-reach, motivated by a desire to advance a social agenda. The opinion was a 5-4 decision in which the liberal justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) were joined by the swing voter Anthony Kennedy, to outnumber the opinion of the conservative justices (Antonin Scalia, Clarence Thomas, Chief Justice John Roberts, and Samuel Alito). But the conservative justices refused to remain quiet regarding the majority opinion. Each wrote a separate dissenting opinion accusing the majority of ignoring their role as a member of the federal bench, of twisting the meaning of the Constitution, of enlarging the meaning of the term “Due Process” (blatantly ignoring the Supreme Court’s own definition and precedent), of ignoring the Tenth Amendment, of committing judicial activism, etc etc.

I want to emphasis the point I am trying to make in this article – which is that the federal courts are guilty, perhaps even more than the other branches, of unconstitutional abuses – by focusing on the Obergefell case and examining the dissenting opinions. I have highlighted key excerpts from the dissenting opinions by Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito, which are all very strong, but have included the entire dissenting opinion by Chief Justice John Roberts.

A.  JUSTICE SCALIA

SCALIA (#7)

The late Justice Antonin Scalia wrote:

I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.

The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,” denying “Full Faith and Credit” to the “public Acts” of other States, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people” can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?

Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

“The Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws” — it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “the generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ”One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans[19]), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “in any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of[a right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

*  *  *

Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”[26] With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

 

B.  JUSTICE THOMAS

JUSTICE THOMAS

Justice Clarence Thomas wrote:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

The majority’s decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing “due process” before a person is deprived of his “life, liberty, or property.” I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. McDonald v. Chicago, 561 U. S. 742 –812 (2010) (Thomas, J., concurring in part and concurring in judgment). It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here – “roam at large in the constitutional field guided only by their personal views as to what fundamental rights are protected by that document”. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 953, 965 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part) (quoting Griswold v. Connecticut, 381 U. S. 479, 502 (1965) (Harlan, J., concurring in judgment)).

By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach of the normal democratic process.” But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a “bare majority” of this Court is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.

Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or “procedural” due process—a party must first identify a deprivation of “life, liberty, or property.” The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses….

The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty……

Justice Thomas then went on to explain the history behind the Due Process Clause, including its roots in the Magna Carta, in Blackstone’s Commentaries, and in the government philosophy of John Locke.

In yet another part of his dissent, Justice Thomas wrote: “Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect,” and then went on to explain the history of our religious liberty.

Finally, he concluded:

Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity.

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them.

Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.

 

C.  JUSTICE ALITO

JUSTICE ALITO

Justice Samuel Alito wrote:

Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage. The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State.

The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning.

To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v. Glucksberg, 521 U. S. 701 –721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor (2013) (Alito, J., dissenting). Indeed: “In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.

“What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” Id.

For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.

Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage.

This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.

Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.

If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage.

While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe.

If the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.”

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.

Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

 

D.  CHIEF JUSTICE ROBERTS

 JUSTICE ROBERTS

JAMES OBERGEFELL, et al., PETITIONERS

14–556v.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.;

Chief Justice Roberts, with whom Justice Scalia and Justice Thomas join, dissenting.

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.

But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78 (Alexander Hamilton)

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.” (majority opinion, at 19). I have no choice but to dissent.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

I

Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely—who decides what constitutes “marriage”?

The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. Even if history and precedent are not “the end” of these cases, ante, at 4, I would not “sweep away what has so long been settled” without showing greater respect for all that preceded us. Town of Greece v. Galloway, 2013.

A.

As the majority acknowledges, marriage “has existed for millennia and across civilizations.” (majority opinion, at 3). For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. Tr. of Oral Arg. on Question 1, p. 12 (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). As the Court explained two Terms ago, “until recent years, . . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” United States v. Windsor, 2013.

This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. See G. Quale, A History of Marriage Systems 2 (1988) (“For since the reproductive instinct is by nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common.”).

The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.” J. Q. Wilson, The Marriage Problem 41 (2002).

This singular understanding of marriage has prevailed in the United States throughout our history. The majority accepts that at “the time of the Nation’s founding [marriage] was understood to be a voluntary contract between a man and a woman.” Ante, at 6. Early Americans drew heavily on legal scholars like William Blackstone, who regarded marriage between “husband and wife” as one of the “great relations in private life,” and philosophers like John Locke, who described marriage as “a voluntary compact between man and woman” centered on “its chief end, procreation” and the “nourishment and support” of children. 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§78–79, p. 39 (J. Gough ed. 1947). To those who drafted and ratified the Constitution, this conception of marriage and family “was a given: its structure, its stability, roles, and values accepted by all.” Forte, The Framers’ Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006).

The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.” Windsor, (quoting In re Burrus, 136 U. S. 586 –594 (1890)). There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way. The four States in these cases are typical. Their laws, before and after statehood, have treated marriage as the union of a man and a woman. See DeBoer v. Snyder, 772 F. 3d 388, 396–399 (CA6 2014). Even when state laws did not specify this definition expressly, no one doubted what they meant. See Jones v. Hallahan, 501 S. W. 2d 588, 589 (Ky. App. 1973). The meaning of “marriage” went without saying.

Of course, many did say it. In his first American dictionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the maintenance and education of children.” 1 An American Dictionary of the English Language (1828). An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one woman legally united for life for those civil and social purposes which are based in the distinction of sex.” J. Bishop, Commentaries on the Law of Marriage and Divorce 25 (1852). The first edition of Black’s Law Dictionary defined marriage as “the civil status of one man and one woman united in law for life.” Black’s Law Dictionary 756 (1891) (emphasis deleted). The dictionary maintained essentially that same definition for the next century.

This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to marriage as “the union for life of one man and one woman,” Murphy v. Ramsey, 114 U. S. 15, 45 (1885) , which forms “the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill, 125 U. S. 190, 211 (1888) . We later described marriage as “fundamental to our very existence and survival,” an understanding that necessarily implies a procreative component. Loving v. Virginia, 388 U. S. 1, 12 (1967) ; see Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942) . More recent cases have directly connected the right to marry with the “right to procreate.” Zablocki v. Redhail, 434 U. S. 374, 386 (1978) .

As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. Loving, 388 U. S., at 6–7.

The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” (majority opinion, at 6–7). They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6.

B

Shortly after this Court struck down racial restrictions on marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal. Baker v. Nelson, 409 U. S. 810 (1972) .

In the decades after Baker, greater numbers of gays and lesbians began living openly, and many expressed a desire to have their relationships recognized as marriages. Over time, more people came to see marriage in a way that could be extended to such couples. Until recently, this new view of marriage remained a minority position. After the Massachusetts Supreme Judicial Court in 2003 interpreted its State Constitution to require recognition of same-sex marriage, many States—including the four at issue here—enacted constitutional amendments formally adopting the longstanding definition of marriage.

Over the last few years, public opinion on marriage has shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the first in the Nation to enact laws that revised the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maine did the same, reversing the result of a referendum just three years earlier in which they had upheld the traditional definition of marriage.

In all, voters and legislators in eleven States and the District of Columbia have changed their definitions of marriage to include same-sex couples. The highest courts of five States have decreed that same result under their own Constitutions. The remainder of the States retain the traditional definition of marriage.

Petitioners brought lawsuits contending that the Due Process and Equal Protection Clauses of the Fourteenth Amendment compel their States to license and recognize marriages between same-sex couples. In a carefully reasoned decision, the Court of Appeals acknowledged the democratic “momentum” in favor of “expanding the definition of marriage to include gay couples,” but concluded that petitioners had not made “the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.” 772 F. 3d, at 396, 403. That decision interpreted the Constitution correctly, and I would affirm.

II

Petitioners first contend that the marriage laws of their States violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court. See Tr. of Oral Arg. on Question 1, at 38–39. The majority nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause.

The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. (majority opinion, at 12). In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45 . Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.

A

Petitioners’ “fundamental right” claim falls into the most sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution. (See majority opinion, at 3, 14). They argue instead that the laws violate a right implied by the Fourteenth Amendment’s requirement that “liberty” may not be deprived without “due process of law.”

This Court has interpreted the Due Process Clause to include a “substantive” component that protects certain liberty interests against state deprivation “no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993) . The theory is that some liberties are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and therefore cannot be deprived without compelling justification. Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).

Allowing unelected federal judges to select which unenumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg, 521 U. S. 702, 720 (1997) (internal quotation marks omitted); see Kennedy, Unenumerated Rights and the Dictates of Judicial Restraint 13 (1986) (Address at Stanford) (“One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.”).

The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” Id., at 450. In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Id., at 621.

Dred Scott’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, but its approach to the Due Process Clause reappeared. In a series of early 20th-century cases, most prominently Lochner v. New York, this Court invalidated state statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interference with liberty of person and freedom of contract.” 198 U. S., at 60, 61. In Lochner itself, the Court struck down a New York law setting maximum hours for bakery employees, because there was “in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law.” Id., at 58.

The dissenting Justices in Lochner explained that the New York law could be viewed as a reasonable response to legislative concern about the health of bakery employees, an issue on which there was at least “room for debate and for an honest difference of opinion.” Id., at 72 (opinion of Harlan, J.). The majority’s contrary conclusion required adopting as constitutional law “an economic theory which a large part of the country does not entertain.” Id., at 75 (opinion of Holmes, J.). As Justice Holmes memorably put it, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a leading work on the philosophy of Social Darwinism. Ibid. The Constitution “is not intended to embody a particular economic theory . . . . It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution.” Id., at 75–76.

In the decades after Lochner, the Court struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that “[t]he criterion of constitutionality is not whether we believe the law to be for the public good.” Adkins v. Children’s Hospital of D. C., 261 U. S. 525, 570 (1923) (opinion of Holmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected “liberty,” the Lochner line of cases left “no alternative to regarding the court as a . . . legislative chamber.” L. Hand, The Bill of Rights 42 (1958).

Eventually, the Court recognized its error and vowed not to repeat it. “The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained, “has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa, 372 U. S. 726, 730 (1963) ; see Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 423 (1952) (“we do not sit as a super-legislature to weigh the wisdom of legislation”). Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them “unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955) .

Rejecting Lochner does not require disavowing the doctrine of implied fundamental rights, and this Court has not done so. But to avoid repeating Lochner’s error of converting personal preferences into constitutional mandates, our modern substantive due process cases have stressed the need for “judicial self-restraint.” Collins v. Harker Heights, 503 U. S. 115, 125 (1992) . Our precedents have required that implied fundamental rights be “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U. S., at 720–721 (internal quotation marks omitted).

Although the Court articulated the importance of history and tradition to the fundamental rights inquiry most precisely in Glucksberg, many other cases both before and after have adopted the same approach. See, e.g., District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 72 (2009) ; Flores, 507 U. S., at 303; United States v. Salerno, 481 U. S. 739, 751 (1987); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); see also id., at 544 (White, J., dissenting) (“The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”); Troxel v. Granville, 530 U. S. 57 –101 (2000) (Kennedy, J., dissenting) (consulting “ ‘our Nation’s history, legal traditions, and practices’ ” and concluding that “we owe it to the Nation’s domestic relations legal structure . . . to proceed with caution” (quoting Glucksberg, 521 U. S., at 721)).

Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification. The Court is right about that. Ante, at 18. But given the few “guideposts for responsible decision-making in this unchartered area,” Collins, 503 U. S., at 125, “an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on an abstract formula,” Moore, 431 U. S., at 504, n. 12 (plurality opinion). Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of “discipline” in identifying fundamental rights, (majority opinion, at 10–11), does not provide a meaningful constraint on a judge, for “what he is really likely to be ‘discovering,’ whether or not he is fully aware of it, are his own values,” J. Ely, Democracy and Distrust 44 (1980). The only way to ensure restraint in this delicate enterprise is “continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers.” Griswold v. Connecticut, 381 U. S. 479, 501 (1965) (Harlan, J., concurring in judgment).

B

The majority acknowledges none of this doctrinal background, and it is easy to see why: Its aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner.

1

The majority’s driving themes are that marriage is desirable and petitioners desire it. The opinion describes the “transcendent importance” of marriage and repeatedly insists that petitioners do not seek to “demean,” “devalue,” “denigrate,” or “disrespect” the institution. (majority opinion, at 3, 4, 6, 28). Nobody disputes those points.

Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant.

When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” Turner v. Safley, 482 U. S. 78, 95 (1987) ; Zablocki, 434 U. S., at 383; see Loving, 388 U. S., at 12. These cases do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.

None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” See Tragen, Comment, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269 (1944) (“at common law there was no ban on interracial marriage”); (see Justice Thomas’ dissent, at 11–12). Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.” (majority opinion, at 11).

In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. See Windsor, (Alito, J., dissenting) (“What Windsor and the United States seek . . . is not the protection of a deeply rooted right but the recognition of a very new right.”). Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.

2

The majority suggests that “there are other, more instructive precedents” informing the right to marry. Ante, at 12. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental “right of privacy.” Griswold, 381 U. S., at 486. In the first of those cases, the Court invalidated a criminal law that banned the use of contraceptives. Id., at 485–486. The Court stressed the invasive nature of the ban, which threatened the intrusion of “the police to search the sacred precincts of marital bedrooms.” Id., at 485. In the Court’s view, such laws infringed the right to privacy in its most basic sense: the “right to be let alone.” Eisenstadt v. Baird, 405 U. S. 438 –454, n. 10 (1972) (internal quotation marks omitted); citing Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).

The Court also invoked the right to privacy in Lawrence v. Texas, 539 U. S. 558 (2003) , which struck down a Texas statute criminalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws, like bans on contraceptives, invaded privacy by inviting “unwarranted government intrusions” that “touch upon the most private human conduct, sexual behavior . . . in the most private of places, the home.” Id., at 562, 567.

Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. (majority opinion, at 28). At the same time, the laws in no way interfere with the “right to be let alone.”

The majority also relies on Justice Harlan’s influential dissenting opinion in Poe v. Ullman, 367 U. S. 497 (1961) . As the majority recounts, that opinion states that “due process has not been reduced to any formula.” Id., at 542. But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not “free to roam where unguided speculation might take them.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but “restraint.” Ibid. Of particular relevance, Justice Harlan explained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up . . . form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.” Id., at 546.

In sum, the privacy cases provide no support for the majority’s position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U. S. 189, 196 (1989) ; San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 –37 (1973); (See Justice Thomas’ dissent, at 9-13). Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws at issue here.

3

Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights taken by this Court in Glucksberg. (majority opinion, at 18) (quoting 521 U. S., at 721). It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.

Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York, 198 U. S. 45 . The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” (majority opinion, at 1–2). The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” (majority opinion, at 12). This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner, 198 U. S., at 58 (emphasis added).

To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. (majority opinion, at 10, 11). The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante, at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner. See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”).

The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” (majority opinion, at 25). On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period.

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” (majority opinion, at 13), why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” (majority opinion, at 15), why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” (majority opinion, at 22), serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015).

I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.

4

Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to include same-sex couples, the majority insists, would “pose no risk of harm to themselves or third parties.” (majority opinion, at 27). This argument again echoes Lochner, which relied on its assessment that “we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.” 198 U. S., at 57.

Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” There is indeed a process due the people on issues of this sort—the democratic process. Respecting that understanding requires the Court to be guided by law, not any particular school of social thought. As Judge Henry Friendly once put it, echoing Justice Holmes’s dissent in Lochner, the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’s Social Statics. See Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J. L. & Pub. Pol’y 1035, 1036–1037, 1058 (2006). And it certainly does not enact any one concept of marriage.

The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” (majority opinion, at 11). As petitioners put it, “times can blind.” Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to history is both prideful and unwise. “The past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun 92 (1951).

III

In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. (majority opinion, at 20). Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases. It is casebook doctrine that the “modern Supreme Court’s treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to the goals it is pursuing.” G. Stone, L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed. 2013). The majority’s approach today is different:

“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” (majority opinion, at 19).

The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. (majority opinion, at 22). Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. See Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 197 (2009) . In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence, 539 U. S., at 585 (O’Connor, J., concurring in judgment).

It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.

IV

The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.” Republican Party of Minn. v. White, 536 U. S. 765, 793 (2002) (Kennedy, J., concurring). That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.” (majority opinion, at 7-9).

Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. (majority opinion, at 9, 10, 23). What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” (majority opinion, at 19). The answer is surely there in one of those amicus briefs or studies.

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” (majority opinion, at 8). In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN, 2014.

The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.

When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” (Justice Scalia’s dissent, at 2-3).

But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. (First Amendment)

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. (majority opinion, at 27). The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. (majority opinion, at 19). That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demean or stigmatize” same-sex couples. (majority opinion, at 19). The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “dignitary wounds” upon their gay and lesbian neighbors. (majority opinion, at 17, 19, 22, 25). These apparent assaults on the character of fair-minded people will have an effect, in society and in court. (See Justice Alito’s dissent, at 6-7). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. (majority opinion, at 19).

In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.

*  *  *

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

I respectfully dissent.

 

CONCLUSION

OBERGEFELL v. HODGES - Supreme Court pic with rainbow-colored wedding rings

The Constitution is a set of core principles, delegated authority, and limits according to which We the People, established in state conventions, decided to have our country governed. Sure, these principles gradually change over time, as well the need for government to adapt to changing times. For example, in 1815, the federal government was expected to stay in DC, run its strictly enumerated programs (post office, patent office, etc), conduct foreign policy, and otherwise stay out of everyone’s hair. Americans enjoyed the fundamental right “to be left alone” by the federal government [“The makers of the Constitution: conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 1928]. Today we accept the notion that the government should take care of us and expect it to do more and more for our well-being and quality of life.  Our Founding Fathers understood that our understanding of government might change over time. They also understood that the Constitution shouldn’t be changed lightly and without sufficient time and opportunity to consider and reflect on the proposed changes. That is why they included Article V, which prescribes the precise processes to alter and amend the Constitution.

There are essentially two ways of dealing with gradual changes: (1) The legal path – thru the amendment process, which is a long deliberate process, and (2) The illegal path – the way that’s been used at least since FDR – which is to give judges great latitude and freedom to reinterpret ambiguous (and crystal clear ones!) parts of the Constitution; this is the quick process.  For progressives, the latter is the preferred process and for conservatives, the first process is what is preferred. For conservatives, the path to take when confronting a shift in prevailing attitudes in our country, such as social change in recognizing gay marriage, is to first require judges to interpret the Constitution literally (“strict constructionism”), and if the change is not addressed clearly in the Constitution, to introduce or address that change by passing a constitutional amendment. That’s the option preferred by conservatives, because conservatives are, by definition, opposed to change, and, in this approach, the Constitution will always be a product responsive to the wishes of the people as a whole and not a product created by judges.

While this may sound insufficient or insurmountable to certain minority groups because of the potential time it may take to gain a majority opinion in their favor, it serves the democratic process and makes sure that change is truly made wisely. The Constitution always protects the fundamental and essential rights of all persons, including all minority groups. It’s the “new rights” that we are talking about here.

I’m not saying that gay marriage should be banned. It may very well be the will of the people in their States and even in the United States as a whole, in support of a constitutional amendment removing the traditional definition of marriage. That is not the question for this article. What I am saying is that the Supreme Court should not have made that decision. It was beyond their authority to do so (just as it was beyond their authority to determine that the unborn have no constitutional rights and therefore can be killed).

Years before his passing, Justice Scalia did an interview in which he explained that “originalism” and “strict construction” as an approach to interpreting the Constitution is a dying position. He said that our youth is being taught, expressly, that the Constitution is “a living, breathing document.” He said that day after day when school systems bring their students to the Supreme Court building, he hears the teacher ask the kids: “What is the Constitution?” To which they would answer, in unison, “a living, breathing document.”  Our children, our youth, are being indoctrinated that the Constitution allows the country to be run not necessarily by an established rule of law but by the rule, or whim, of man.

The progressive and political nature of the Supreme Court poses a grave danger to the longevity and the integrity of the foundations that were agreed upon in the years when the States, and the people acting in convention in those States, debated, deliberated, and labored over the decision to delegate some of its power to a common government establish a federal union. Their deliberations and decisions were directly related to the meaning and intent of the Constitution; its meaning and operation were paramount to their decision. The Supreme Court, through many years of opinions, has reassigned new meaning and powers to the government, not by recognizing what it says but by ignoring what it says.

Indeed, little by little, the foundations of our Constitution have been eroded by the federal judiciary and over the course of its history (ever since the Marshall Court), its men in black robes have enlarged the powers of the federal government, have stripped reserved powers of the States, have secured for the government the unlimited right to the property and finances of the American people, have put the American people in a state of limbo as to the security of their fundamental rights under the First Amendment (religious rights, in particular) and Second Amendment, and have used the bench as an alternate forum to make laws. The result has been an erosion of the American system of checks and balances, especially in the ability of the States to check the federal government. A government without effective checks is a danger to the freedom of the people.

“At the establishment of our Constitutions,” Thomas Jefferson wrote in a letter to Adamantios Coray in 1823, “the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”

We inherently know when the executive and legislative branches overstep their constitutional (and in pursuance to it, statutory) authority. Anyone who has read the Constitution and takes the time to read our federal laws can tell when their limits have been exceeded. And the people and the States can decide how to respond to such unconstitutional action. But how do you challenge the judicial branch when they alone determine what the Constitution means (or now means) and the laws mean.

No doubt many will never be convinced that decisions of the Supreme Court should be opposed or ignored. No doubt that many will never believe that its opinions can be characterized as “unconstitutional.” If you are one of those individuals, consider how the Supreme Court, starting with the Marbury v. Madison decision has affected the delicate balance of government envisioned by our Founders and drafters and established in the Constitution:  The Constitution intended to, and did, establish three departments, coordinate and independent, capable of checking and balancing one another, with the officials of the most important branches (the legislative and the executive) being elected in a democratic process. And then the intended weakest branch, with its members appointed and thus outside the reach of the electorate, reserved to itself the power over the other branches and over the will of the people.

Yes, the Supreme Court and the other courts of the federal judiciary often abuse their power, put politics and agenda over a duty to impartially interpret the Constitution and its laws, make law from the bench, direct social change from the bench, and usurp powers reserved to the States or the People whenever it feels like in order that the federal government can exert the powers it wants and for the reasons it wants. Yes, its opinions are often unconstitutional. I hope this article has convinced you of that. I have used the very words, the explanations, of our esteemed Supreme Court justices to make my point as clear and as strong as possible.

I also hope that you find it unacceptable that it happens and that because “no one watches the watchers” we have accepted the notion that whatever the Court decides must become the law of the land.

I hope your next step will be to believe that such unconstitutional decisions, like unconstitutional laws and executive orders, must be called out for what they are and be prevented from being enforced. The enforcement of unconstitutional laws and policies, AND unconstitutional judicial opinions, is the very definition of TYRANNY.

Ultimately, my hope is that you will begin to research and read up on the remedies to prevent the enforcement of unconstitutional judicial opinions, share the knowledge with friends, and get involved with your local and state government (thru its officials) to educate them as well.

 

References:

Obergefell v. Hodges, 2015 (dissenting opinion by Chief Justice John Roberts) –    https://supreme.justia.com/cases/federal/us/576/14-556/dissent4.html

Obergefell v. Hodges, 2015 (dissenting opinion by Justice Clarence Thomas) –  https://supreme.justia.com/cases/federal/us/576/14-556/dissent6.html   [Read Justice Thomas’ explanation of the history and meaning of both the Due Process Clause (of the 5th amendment) and the history of Religious Liberty]

Obergefell v. Hodges, 2015 (dissenting opinion by Justice Antonin Scalia) –  https://supreme.justia.com/cases/federal/us/576/14-556/dissent5.html

Obergefell v. Hodges, 2015 (dissenting opinion by Justice Samuel Alito) –  https://supreme.justia.com/cases/federal/us/576/14-556/dissent7.html

Robert E. Riggs, “When Every Vote Counts: 5-4 Decisions in the Supreme Court, 1900-1990,” Hofstra Law Review, Volume 21,|Issue 3, Article 3 (1993).  Referenced at:  https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1867&context=hlr

Robert E. Riggs (1993) “When Every Vote Counts: 5-4 Decisions in the United States Supreme Court, 1900-90,” Hofstra Law Review: Vol. 21: Iss. 3, Article 3.  Referenced at:  http://scholarlycommons.law.hofstra.edu/hlr/vol21/iss3/3

Tom Jippimg, “The Judiciary: The Strongest and Most Dangerous Branch?”, Enter Stage Right, March 4, 2002.  Referenced at:  http://www.enterstageright.com/archive/articles/0302/0302judiciary.htm   [Tom Jipping is the director of the Free Congress Foundation’s Center for Law and Democracy]

What It Means to be Sovereign

Declaration of Independence - with Jefferson statue   by Diane Rufino

Government in the United States includes the understanding of three terms: Self-government, sovereignty, and social compact. Sovereignty is the inherent and independent right to do all that is necessary to govern oneself.  In the United States, the People are sovereign. In fact, only the Individual is truly sovereign because only the people, and not government, have inherent rights to Life, Liberty, and Property which they also have the right to protect and preserve. In the United States, we enjoy self-government; that is, government originates from the people, for the people – “of the people, by the people, and for the people.” Government arises out of social compact. In other words, because Man is a social creature, he forms together into communities. And in order that communities run smoothly and common services be provided to protect everyone’s rights and property, governments are instituted.  And so, individuals delegate some of their sovereign power of self-defense and self-preservation to a government. That is why the bulk of government is always supposed to be closest to the individual, where it is most responsible and most accountable. Our rights and liberties are most protected when people have the frequent opportunity to see their elected officials and look them in the eye and when those officials see a personal story behind acts of legislation, etc.

This is exactly what our Declaration of Independence tells us about our Individual Sovereignty. In the first paragraph, we are told that our sovereignty is based on Natural Law and God’s Law – “to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”  The only rightful power our government has is the power that the People – by the consent of the governed and according to the precise language and intent of our Constitution – have temporarily delegated to it.  In that grant of power, in a system based on the Sovereignty of the Individual, there is always a mechanism to that power back. That is why the Declaration explicitly states that the People have the right to “alter or abolish” their government (when it become destructive of its aims). In fact, that right is so important and so fundamental, it is listed with the other inherent rights that individuals possess. In other words, what the Declaration is saying is that the People of the “united States” have the right to reclaim the sovereign power that they temporarily delegated to that government to govern and protect their liberties.

Again, this is because our system was premised on the Sovereignty of the Individual.

If, on the other hand, in that grant of power there is no longer a mechanism to take it back, then the People are no longer sovereign. If the government tells us that we don’t have the right, or the power, to take it back, then we have already lost our freedom and our system of government is no longer based on the sovereignty of the individual.

In 1868, the Supreme Court ruled that there is no right to secession. (Texas v. White). It concluded that when the Constitution was signed, a permanent, perpetual Union was created.  (However, Justice Salmon Chase did acknowledge that secession might be permitted if ALL states decided together to dissolve the Constitution and the Union or if the people revolted…  In other words, only if people are willing to lay down their lives might they be permitted to wrestle sovereign power from the government).  In a letter he wrote in 2006, Justice Scalia also opined that there is no right of secession. And in 1958, the Supreme Court ruled that States have no right to try to remind the federal government of its constitutional limits and to prevent its encroachments upon the rights of the people through nullification efforts (Cooper v. Aaron).

So, next time you hear people profess the opinion that the Supreme Court has given the final word on efforts to reclaim sovereign power, ask yourself: “Are they on the side of Liberty or Tyranny” ?

Nullification is an ESSENTIAL first step in reclaiming power that the government has unilaterally and inappropriately usurped from us!