Published on TheHill.com on July 1, 2008.
The nine august justices of the United States Supreme Court – or at least the five conservative Republicans – chose the wrong time to make a sea change in constitutional law, admitting the Second Amendment to our pantheon of civil liberties.
By demonstrating how willing they are to toss aside decades of jurisprudence in pursuit of a conservative agenda, they sent a chill into the souls of women all across the nation and resurrected fears that Roe v. Wade is next on the chopping block. At a time when the GOP should try to assuage the concerns that lead women to vote Democratic by 10 points more than men do, the Supremes have escalated the angst on which Democrats can and will play in the run-up to November.
Personally, I am a bit schizophrenic when it comes to gun control. It’s obvious that the Constitution and its Framers explicitly enumerated a right to bear arms. During the Revolutionary War, they all had guns and it was the crown’s efforts to confiscate them in England that led to much civil strife. But it is equally apparent that strict gun controls do a great deal to save lives and have played no small part in the major reduction in homicides in the past decade and a half.
Gun control never aroused the left the way it did the right, and the Alito opinion striking down the D.C. handgun ban explicitly leaves the right to keep firearms from the mentally ill or criminals and would, presumably, leave in place the key protection added during the Clinton years – denying guns to those subject to orders of protection.
But the sight of the Supreme Court shattering precedent and finding a right to bear arms by a simple 5-4 vote makes it apparent how powerful the Court is and how important this election will be in determining its future direction.
These calculations cannot but strengthen the Democratic Party and its appeal to liberals and women anxious to preserve Roe as the law of the land.
Oddly, were Roe repealed, most states, including all the big ones – except possibly Texas and conceivably Florida would affirm a state right to choose. Even in states that have passed pro-life laws, the activated left, galvanized by a repeal of Roe, would probably succeed in keeping abortion legal. In fact, there is no quicker way to ensure a generation of Democratic electoral domination than to repeal Roe and thereby trigger a massive Democratic shift in state legislatures throughout America. State legislators have a way of growing up to be congressmen and senators.
As if to emphasize its capacity for mayhem, the Court’s decision to grant habeas rights to GuantÃ¡namo terrorists is a vivid example of reprehensible judicial lawmaking. To decide that men whose only nexus with the United States is that they shot at our troops is insane. In our book Fleeced, Eileen McGann and I reveal that 50 of the 420 inmates freed from GuantÃ¡namo so far have been identified as fighting against our troops in Afghanistan and Iraq. We know because we have had to kill or recapture them.
The obvious answer to the Court decision on GuantÃ¡namo is to invoke the Geneva Convention and accord the inmates prisoner-of-war status. We clearly cannot hold them unless we do. As long as we keep them in judicial limbo, suspended between POW status and regular criminal law, the justices will be unable to resist opening the cell doors and turning them loose. And we now know that, once released, they simply go back to their old day job: terrorism.