USSC Could Overturn D.C. Gun Ban

The U.S. Court of Appeals for DC recently ruled unconstitutional a D.C. law which banned the ownership of hand guns (with the exception of active and retired law enforcement officials). It joins only one other federal appeals court--one in New Orleans--to do so purely on the grounds that the law violates the Second Amendment's guarantee of the right to bear arms.

The USSC has ruled only once on the Second Amendment in 1939 on the case of U.S. v. Miller. They upheld a gun control by a vote of 8-1. According to FindLaw, in that particular case, "Arkansas bootlegger Jack Miller was indicted for violating the National Firearms Act of 1934 by carrying a sawed-off shotgun across state lines. Miller argued that the case against him should be dismissed because the Second Amendment protected his right to own and carry the weapon."

The Court also seemed to affirm the collective right of the people--not persons--to bear arms. The Court wrote:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158."

The people pushing for the case to go to the USSC are fielding some criticism for appealing the DC Circuit Court of Appeals decision. With a slightly more conservative court, owed most in part to the nominations of President Bush and a undeniable texualist sitting on the bench as well (Justice Scalia), the prospects for upholding D.C.'s gun ban do not look very promising.

Race in Schools: A Move Beyond Integration to Diversity

Many journalists have categorized the recent decision regarding race-based assignments in high schools as a win for conservatives. After all the decision, Parents Involved in Community Schools v. Seattle School District No. 1, seems to turn back the clock on progress that has been made regarding race and race relations in the United States.

Yet summing up the decision in so many words is not that simple. The 185 page decision is quite nuanced. The conservative plurality authored by CJ Roberts, and joined by Scalia, Thomas, Alito and Kennedy is quite careful in not striking down any race based means of achieving the high school's end goal of creating a diverse student body, but only goes so far as to say that purely race based means of doing so are unconstitutional. The opinion does not overturn any past precedent, but merely serves to clarify it. Kennedy's concurrence serves to emphasize this distinction.

He says:

"This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated societythat ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand."

Both liberals and conservatives should agree that this crude classification of children solely on the basis of race is unconstitutional. It goes against the very meaning of the Equal Protection Clause. It would also go against the very individualized method of review that the Court in Grutter approved. The court made it explicit in the two University of Michigan affirmative action cases that the reason for approving one system of review and striking down another was the more individualized method of review where race was not equated with diversity, but one of many factors that could contribute to the meaning of diversity. Justice Kennedy should be applauded for upholding and making special note of this precedent, even though he did not join in the majority's opinion in Grutter.

The decision conforms to what much of Bakke, Grutter, and Gratz have told us over the past 30 years. The days of pure race based integration measures for simply remedying for the effects of past discrimination are over. We have moved beyond integration for the sole purposes of integration. Integration serves a new goal now. That new goal is diversity. The goal, it appears, serves a dual purpose: 1) increasing education and tolerance among members of society and 2) remedying for the effects of past discrimination.

While remedying for the effects of past discrimination may not be necessary anymore at some point (as O'Connor prophetically said in Grutter that affirmative action measures would be expected to end in 25 years), it seems that as long as there is a society that values education and tolerance, race will be an ever present factor in discussions about diversity and society will never truly be colorblind.

Primarily Primary Confusion

A lot of attention has been garnered by the recent presidential debates which are ostensibly gearing up for next year's primaries. With all of the recent changes in the primary system for voters it has become quite a confusing mess. It was confusing even before the changes. Who actually knows what the difference is between a primary and a caucus anyway? (For more information see Professor Stephen Wayne's book, The Road to the White House).

Approximately six years ago, the USSC handed down an influential decision, California Democratic Party v. Jones (2000) regarding the primary system in the state of California (and obviously other states which had similar systems). California operated what they called a "blanket primary" in which register voters (not registered with any specific party, but simply registered to vote) could choose their favorite candidate across party lines. (In most cases, voters must be registered with a particular party and then vote for only a candidate within that party). The California Democratic Party filed suit against the Secretary of State for violating the First Amendment right of political parties to freedom of association.

In a 7-2 decision, the Court struck down the blanket primary. In short the opinion, which was authored by Justice Scalia, said that the state of California could not provide a compelling enough of a reason for violating political parties' rights to freedom of association. Parties need to be able to exclude those that do not associate with it in selecting their nominee, or else the party's views will not be represented adequately. Scalia writes:

"In no area is the political association’s right to exclude more important than in the process of selecting its nominee. That process often determines the party’s positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party’s ambassador to the general electorate in winning it over to the party’s views."

Granted, that this is the case, it is still not understandable why getting a candidate whom the party likes matters at all. If this country was founded on democratic principles of a "government by and for the people" then why not open up the selection of candidates for a particular party to everyone? These candidates will eventually have to face all enfranchised voters anyway and if the majority of the population does not like either, then the election would be less fair. The majority of people who vote in the general election would have the least say at the most crucial stages of the game.

Framed in another way, the party's desire to be exclusive truly limits the value and of diverse veiwpoints and perspectives instead of increasing them. While Scalia writes that these types of candidates, since they must accommodate a range of views from the population, only become more "centrist" he refers to no social science or actual data. It is a weighty statement with nothing to back it up except general theorizing. In addition, it assumes that politicians cannot find ways to accommodate a diverse range of views while still satisfying most of their party platform. It is unlikely that candidates will be able to campaign for the general election anyway with the entire party platform intact since they will have to compromise then on issues to gain voter support. The rationale is messy since it really delays what inevitably happens: candidates will need to figure out ways to appeal to the entire population, if they are to be elected.