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

On June 26, 2008, the Supreme Court issued its ruling in the case of District of Columbia v. Heller, 554 U. S. ______ (2008), holding unconstitutional the District of Columbia law which prohibited the possession of usable handguns in the home. In this 5-4 ruling, the Court held that the right to bear arms in the Second Amendment was an individual right, and not merely the right of a governmental militia.

The question of whether the right to bear arms belonged to the individual or to the militia has been a subject of debate for decades. The only question was which side the Supreme Court would take on the issue. In my opinion, the Supreme Court got it right. But I am concerned and disturbed that vote was so close (5-4). With the Supreme Court’s recent penchant to ignore the principles of stare decisis. I personally have concerns about the permanency of this ruling. Nevertheless, as it now stands, this is a good and important ruling.

D.C. law made it a crime to carry an unregistered firearm, and the registration of handguns was prohibited. Dick Heller sued to enjoin the District of Columbia from enforcing this law, contending that the law violated the Second Amendment of the Constitution. That amendment reads: “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.”

If the Amendment means what it says, then there should be no question that the right spoken of, the right to bear arms, belongs to the “people,” and not to the “militia.” However, this plain reading of the Amendment was challenged by the District of Columbia and by four of the Justices (Stevens, Souter, Ginsberg and Breyer). They argued (1) that the prefatory clause changed the meaning of the operative clause in the Amendment, and (2) that the handgun ban was a reasonable limitation on the right to bear arms that did not violate the general spirit of the Amendment. But the majority rejected both of these assertions.

I. The Majority Opinion

Justice Scalia, who wrote for the majority, pointed out that a prefatory clause (such as “A well regulated Militia, being necessary to the security of a free State”) does not normally modify the operative clause that follows (“the right of the people to keep and bear Arms, shall not be infringed”)—but rather gives one reason as to why the operative clause may be necessary. Justice Scalia said that the normal reading of the two clauses was appropriate here. In fact, he pointed out, the operative clause specifically states that the right belongs to the “people.” The right, therefore, is an individual right of the people.

Justice Scalia further pointed out that the very nature of the militia in the early days of our nation, was that it was comprised of individuals in the community who bore arms. It would have been illogical and contradictory for the Amend-ment to state that the people did not individually possess the right to bear arms. Additionally, he pointed out that if the intent of the amendment was to limit its meaning to only be a right if the militia should need a person’s participation, then there would have been no purpose for the operative clause. Justice Scalia points out that historically the amendment was widely under-stood to recognize an “individual” right, and he found no evidence to the contrary. Finally, Justice Scalia pointed out that the Second Amendment did not create a right, but rather only recognized a right that already existed, and prohibited the government from infringing upon it.2
In concluding his opinion, Justice Scalia wrote these words: “[W]e 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” (p. 64).

Reading Justice Scalia’s majority opinion was somewhat fascinating, because he painstakingly dissected every word and phrase in the short, Second Amendment to show that his interpretation was correct. It is interesting to see how the Court’s three opinions took 154 pages to dissect and analyze the 27-word, one-sentence amendment. And it is disconcerting to see how so many points in Justice Scalia’s opinion were disputed and contested by the two dissenting opinions. The dissenters impressed me as being strained and illogical and as denying important historical facts pertaining to the original purpose and meaning of the right to bear arms, as memorialized in the Second Amendment.

It is my judgment that the Heller case will be one of the most important cases in this nation for the next twenty years. I think it will be important to have some in-depth understanding of the case. I will now provide some analysis of and commentary on the dissenting opinions.

II. The Dissenting Opinions

A. Justice Stevens’ Dissent. To start with, consider what the four Liberal Justices stated as their fundamental opinion. They said this: “Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution” (p. 2). It is chilling to me to think that four of the current Justices of the Supreme Court hold this opinion.

The heart of Heller is whether the right to bear arms is an individual right OR whether it is merely a privilege to participate in a militia at the pleasure of the state. The Court (the majority) held it to be an individual right. After all, the Second Amendment says it is a “right.” But the dissenters said that the Amendment does not mean that. The two dissents (by Justices Stevens and Breyer) go on to employ their considerable intellectual and legal skills to argue that the Second Amendment does not mean what it says. They say that because the “right to bear arms” is connected to the need for a militia, that therefore this cannot be an individual right. (Justice Stevens says it is a “right” and a “duty” [p. 16].) But the end result of Justice Stevens’ opinion is that absent a militia there really is no “right.” This leaves nothing but an obsolete “duty” in the Second Amendment. The dissenting Justices never do answer the question of why our Founders called it a “right” if it really isn’t a “right.” Somehow they confuse “duty” with “right”—that is they say that the Second Amendment says that because militias are so important, therefore citizens can have certain arms, but only for use in the militia. This is a ridiculous interpretation. That’s not what the Founders meant, and that is not what the Founders wrote. Even if militias are obsolete, the Amendment continues to have a meaning in that if individuals should not have operable arms for their self defense, then it would be impossible to have militias.

Justice Stevens at one point did acknowl-edge the point that the Second Amendment did not create the right to bear arms (Stevens, J., Dissent, pp. 17 & 38), but he did not seem to appreciate what he acknowledged. Let me briefly explain what Justice Stevens seemed to miss: The technical wording of the Second Amendment does not create any right, but rather it states that the government shall not “infringe” on “the right of the people to keep and bear arms.”

If you know much about James Madison (who drafted the Second Amendment), you know that he felt there was no need for a bill of rights because these rights already existed, and that there was no need to make a partial list of existing rights. In fact, he felt this could have undesirable consequences, if the partial listing of rights were used to later deny that some rights did not exist because they were not enumerated. (The Ninth Amendment was included to avoid this problem.) But, returning to the Second Amendment, Madison’s language again does not create any new right, but rather only restricts the government from infringing upon an existing right.

Well, having said this, what if the minority was right, and the Second Amendment only pertains to bearing arms as may be needed in the militia. If so, then, there is yet an individual right to bear arms that is not referenced in the Second Amendment. The Court never really discusses this issue because (a) the Liberal Justices don’t want to consider those implications; and (b) the majority interpret the Second Amendment to cover the right of individuals to defend themselves with guns, and therefore there was no need to go there.

1. “A Well Regulated Militia . . . .” Justice Stevens spends virtually all of his dissenting opinion to attempt to prove that whatever “right” is mentioned in the Second Amendment is entirely contingent upon and subject to the government’s use of militias. Justice Stevens made numerous strained arguments in his effort. Here are a few of them.
a. He argues that “bear arms” has reference only to using arms in the military (pp. 11 & 14). However, even some of the citations he includes in his opinion refute this unreasonable interpretation.
b. He says that because the Amendment did not include the words “a personal right to use arms in self defense” that therefore the Amendment could not have included such a meaning. This is a ridiculous argument. This is precisely the type of reasoning that James Madison was concerned about—that some would deny the existence of rights because a right may not have been specifically articulated. And while we’re on the issue—the failure to mention something does not mean that that thing does not exist. Yet that is the very argument that Justice Stevens makes. To have added the words “for self defense” would have been superfluous. The wording that was used plainly implies the use of arms for self-defense—otherwise the references to participation in militia actions would have made no sense.
c. Justice Stevens argues that the words “the people” could not possibly mean in the Second Amendment what it means in First and Fourth Amendments. He asserts that in the First and Fourth Amendments the people means all people, but that “the people” referenced in the Second Amendment is subject to considerable limitation. (For example felons and insane people can be barred from possessing arms.) Therefore, Justice Stevens makes the argument that the Second Amendment could not possibly confer a right on all “the people.” Frankly, this is pathetic reasoning.

2. Does the prefatory clause restrict the meaning of the operative clause? We now get to the main argument—does the prefatory clause (or preamble) restrict the meaning of the operative clause that follows? The obvious answer is “not necessarily.” Yet the four Liberal Justices insisted that the prefatory clause limits the operative clause (p. 8). This is blatantly false. Yet, not only do they refuse to acknowledge the error of their thinking, but they accuse the majority of being illogical.

3. The Miller case. Finally, let’s look at the case of United States v. Miller, 307 U.S. 174 (1939), where the Supreme Court addressed the issue of whether a person had a Second Amendment right to possess a sawed-off shotgun. In this cased the Supreme Court upheld a statute that outlawed the possession of a sawed-off shotgun (less than 18” in length). This case established that the right to bear arms is not absolute, and that some weapons can be prohibited. The Supreme Court in Miller stated that there was no evidence that a sawed-off shotgun would have any use in a militia, and therefore the law banning them was upheld.

The dissenting Justices in Heller argue that the Miller case establishes that the prefatory clause does indeed control all the rest of the Amendment, and that whatever “right” does exist is subject to the government’s power to regulate a militia. The majority, however, did not read Miller that way; they acknowledge that not all “arms” are covered by the amendment (machine guns, bazookas and hand grenades could also be prohibited), but the majority did not find anything in Miller that infringed upon the fundamental meaning of the Second Amendment to include an individual’s right to bear arms to protect one’s hearth and home.

B. Justice Breyer’s Dissent. Justice Breyer also wrote a dissent, but his dissent is of lesser importance in my view. He argues that even if the Second Amendment included a personal right to use arms in self-defense, that the government could still impose reasonable limitations and regulations for the safety of society. He then concluded, that the District of Columbia did in fact have a reasonable basis to prohibit the use of handguns. (All four Liberal Justices joined in Justice Breyer’s dissent as well as in that of Justice Stevens.)

C. Stare Decisis. Although the liberal Justices all but abandoned stare decisis in reaching their opinion in 2003 in Lawrence v. Texas,3 they nevertheless accuse the majority in Heller of doing just what they have been doing—lightly throwing aside Court precedents without adequate justification. This accusation by senior Liberal Justice Stevens (p. 4 of his Dissent), would be valid only if the majority interpreted the Second Amendment as he does. But they do not, and his criticism that the majority has not been faithful to stare decisis is without merit. But what makes this accusation by Stevens infuriating is that fact that Stevens and the other three liberals are the ones who have blatantly discarded stare decisis in Lawrence v. Texas and in McConnell v. FEC (campaign finance reform case).4

D. Judicial Activism. The same can be said for judicial activism. Justice Stevens concludes his 46-page dissent by accusing the majority of failing to exercise “judicial restraint.” This criticism is baseless—it is the liberal four who are attempting to legislate from the bench in Heller, just as they did in Boumediene, Lawrence and McConnell. And it is irritating to see them give lip service to the principal of judicial restraint all the while they themselves routinely ignore the principle because it regularly gets in the way of their philosophical agendas.

III. Summary

The Heller case is a critical case for Americans to understand because it high-lights the internal philosophical battle that is going on both in the Supreme Court and throughout the nation. On the most obvious level, this case is about whether individual Americans have the right to possess arms to defend themselves in their homes. But on a deeper level, it is also about whether individual rights are to be superseded by governmental control. And on this deeper level, the issue is whether we the people will turn our individual rights over to the government, and whether it is us or the government who know and decide what is best for us. As for me, I neither want nor need the government to take over my life.

Boumediene v. Bush, 553 U.S. (2008)

On June l2, 2008, the Supreme Court ruled that alien enemy combatants1 detained abroad by our military forces in the course of an on-going war have a constitutional right to habeas corpus relief. Never before has the Constitution given this right to aliens abroad.

This (5-4) ruling is very important and will have far-reaching impact for years to come. Democrat Presidential candidate Barack Obama praised the ruling, while Republican Presidential candidate John McCain sharply criticized it.

On some levels, the ruling was relatively simple—the Court wanted to extend additional rights to foreign enemy combatant detainees. But on close examination, there were several complex issues involved. While few people will read the decision, this will not deter them from offering their opinions on the merits or flaws of the ruling. I encourage all citizens to read it and to get a thorough understanding of what the Court did in this case. This case is one of the most egregious examples you will find of judicial activism, lack of judicial restraint, and judicial pre-emption of foreign policy power and national defense power from the Executive and Legislative branches of the government. The implications of this decision are extensive and profound.

It is difficult to distill in a few words a concise summary of what happened in this case. The Majority opinion (authored by Justice Anthony Kennedy) took 70 pages. The dissent of Chief Justice John Roberts took 28 pages, and the dissent of Justice

Antonin Scalia took 25. When you add in Justice Souter’s 3-page concurring opinion—the total pages reach 126. But the reading of this opinion is a must for all patriots.

By the time you get to page 70 in Justice Kennedy’s majority opinion, you may be mesmerized or persuaded by his reasoning. The majority feels the pain of the enemy combatants at Guantanamo Bay, who for six years (some of them) have remained detained after they were captured in foreign lands fighting against our troops. To some, the length of this detention is intolerable. To some, the criticism that some international peoples level at the U.S. for maintaining the Guantanamo detention facility is more than they can stand. Five of the Supreme Court Justices appear to be in this group. Their impatience and disapproval of the nation’s operations in Guantanamo Bay has led them to hastily and abruptly take actions that have undermined over 200 years of constitutional precedence to attempt to appease enemies of America who will never be appeased because their hatred for America is unreasonable and intractable.

I. Background

Previous to the Boumediene ruling, alien enemy combatants had no rights to habeas corpus protection in U.S. courts if they were confined abroad in places where the U. S. was not sovereign. The case of Johnson v. Eisentrager, 339 U.S. 763, (1950) specifically held this. (See, e.g., Scalia, J., dissenting, p. 10.) The Bush administration properly relied on this precedent, as it detained captive, alien enemy combatants at Guantanamo Bay. But this year’s ruling in Boumediene abandoned stare decisis and overturned Eisentrager (1950) and effectively overturned Hamdi v. Rumsfeld, 542 U.S. 507 (2004) for no compelling reasons. A close examination of the Boumediene ruling will show that it will not give these enemy combatants any significant additional rights, and that the Boumediene holding will serve only as a rebuke of the Bush administration by the Court, when the Bush administration had in good faith relied on Supreme Court precedents. Consequently, all that this case accomplished is to diminish the power of the Executive Branch and to enlarge the power of the Judicial Branch.

II. Problems with Boumediene

Here is a list of some of the major problems in Boumediene v. Bush:
l. The Supreme Court, for the first time, confers on non-citizen, alien enemy combatants the right to seek and obtain the protections of a writ of habeas corpus in U. S. Courts.
2. This ruling by the Supreme Court effectively overturns the 1950 case of Johnson v. Eisentrager, 339 U.S. 763. Until now, there was no question but that alien enemy combatants at the Guantanamo Bay facility would not have the right to access to
U. S. courts through the filing of writs of habeas corpus. But the majority decided to interpret Eisentrager differently—they said that since the U.S. has effective control over Guantanamo Bay, that therefore the habeas writ should be made available. The Majority denies that they overturned Eisentrager, but they offered only obfuscation and linguistic contortions rather than sound reasoning in support of their conclusion. The majority’s effort to reconcile its ruling in Boumediene with its ruling in Eisentrager is a total failure—and will convince only those whose analysis processes do not insist upon facts and sound reasoning.
3. This ruling by the Supreme Court also effectively overturns major parts of the recent, 2004, case of Hamdi v. Rumsfeld, in which case the Supreme Court recommended the precise procedures and practices that Congress and the President then enacted to ensure that the detention of alien enemy combatants satisfies all constitutional requirements. In that regard, Chief Justice Roberts wrote this:
The plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004), explained that the Constitution guaranteed an American citizen challenging his detention as an enemy combatant the right to “notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.

Supreme Court Delivers Five, Important 5-4 Rulings—The Roles Played by Justices Roberts and Alito Are Key

On Thursday, June 28^th, the Supreme Court ended its term, by issuing several important rulings, five of which were extremely important, 5-4 rulings, in which Chief Justice Roberts and Justice Alito combined with Justices Scalia, Kennedy and Thomas to bring narrow victories over the four more liberal Justices, Stevens, Souter, Ginsberg and Breyer. A review of these five cases will manifest their importance. Conservatives will applaud President George Bush for two excellent appointees; liberals will be unhappy. But whatever one’s political persuasion may be, an understanding of these five rulings is important.

The summaries that follow are admittedly laced with this writer’s opinions. But there is nothing wrong with that. This is a private picnic event, and these statements do not necessarily represent the opinions of either my church or my city or of Jim & Sarah Olson. They are the considered thoughts of one who has followed the Supreme Court with great interest for many years. I hope my comments can help all of us to better understand the state of our Constitution.

Below are the five cases.

Parents Involved in Community Schools v. Seattle School District No. 1

National Association of Home Builders v. Defenders of Wildlife

Morse v. Frederick

Hein v. Freedom From Religion Foundation, Inc.

FEC vs. Wisconsin Right to Life

On June 28, 2007, the Supreme Court announced it ruling on an affirmative action issue that arose in Seattle, Washington andJefferson County, Kentucky. By a 5-4 vote the Court struck down desegregation plans in both of these school districts because the plans were based purely on racial percentages and were not related to either of the two acceptable justifications for affirmative action, i.e., to remedy past racial injustices or to provide the benefits of a racially diverse student body. The Supreme Court has legitimized these two justifications for affirmative action, and the Court has stated that if a desegregation plan is narrowly tailored to accomplish one of these objectives, then the demands of the Fourteenth Amendment’s Due Process Clause are satisfied. But neither the Washington nor the Kentucky plans even attempted to articulate such a connection with its racial percentage plans.Accordingly, the plans failed to survive the strict scrutiny that the Equal Protection Clause demands of any racially-driven, governmental plan.

This decision once again pitted the five more conservative Justices with the four more liberal Justices. But this ruling is likely to evoke more criticism and commentary than the other rulings announced this week for several reasons. This is primarily so because it pertains to race, and there are a number of outspoken leaders in the nation who do not hesitate to speak out against racism whenever they can, whether or not the particular facts justify such an allegation. The dissenting Justices implicitly called for such criticism in their long and emotional argument against the majority’s opinions. But for all the protestations of the dissenters, Chief Justice Roberts and the majority correctly applied the law, and properly rejected the desegregation plans. If the dissenters’ opinion had been in the majority, this case would have stood for a significant extension and expansion of the types of racially-motivated, affirmative action plans that the Court has chosen to permit under the Equal Protection Clause. The Roberts Court wisely drew a line in the sand and took a stand against further expansion.

It should be pointed out that the Parents Involved opinions are 185 pages in length. Few people will take the time to read them, let alone to understand them. I expect that the discussion of this case will be limited primarily to name-calling and superficial treatment. The Majority will be labeled as “racists” and the dissenters will be hailed as the heroes of the down-trodden.Neither is true. The plain language of the Equal Protection Clause and the clear language of the earlier cases on affirmative action all support the ruling of the Court on this important issue.

The pages of opinions generated by the Justices in addressing this case was multiplied because of the acerbic dissent of Justice Breyer, who spent numerous pages giving his account of historical events and stating his sociological arguments for upholding the Seattle and Jefferson County plans. Justice Thomas’ concurring opinion devoted 36 pages to respond to Justice Breyer’s argument. The Chief Justice’s (the Majority) opinion, devoted thirteen pages to respond. But the Majority was not side-tracked; they got it right.

On June 25, 2007, the Supreme Court, in another 5-4 decision, resolved a procedural conflict between to federal agencies pertaining to the protection of endangered species, the result of which is to lessen the protection given to endangered species.

The legal question around which this case centered is whether the Environmental Protection Agency (EPA)is required to consider whether a construction project would jeopardize an endangered species before transferring permitting authority to a state (Arizona). The Supreme Court answered this in the negative; they said that the Clean Water Act of 1972 requires that the EPA transfer permitting responsibility for a project to the applicable state once nine criteria are satisfied. And that is what the EPA did.Thereupon, Defenders of Wildlife filed suit directly in U. S. Court of Appeals for the Ninth Circuit, requesting the court to order the EPA to first insure that a water project would not endanger the cactus ferruginous pygmy-owl and the Pima pineapple cactus. The Ninth Circuit ruled in favor of the petitioners (Defenders of Wildlife). However, the Supreme Court reversed, ruling that the EPA had correctly transferred permitting authority.

Having given this brief description of the case, you might ask, “So what?” What makes this case important? The answer is that this ruling is a setback to those who have sought to place protection of endangered species as a higher priority than the primary purposes of other federal agencies and programs. The four dissenting Justices (Stevens, Souter, Ginsberg and Breyer) argued that the majority's interpretation of the Clean Water Act reverses a long-standing mandate that Congress must make protection of endangered species a priority over the “primary missions” of other federal agencies.

(J. Stevens, dissent, p. 2). But the opinion of Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy and Thomas) disagrees.

This case was necessary because of a difference in the Circuit Courts in addressing this procedural issue. It is not clear to me that the decision will necessarily be more or less protective of endangered species. I believe it will relegate to states more of the enforcement of endangered species protection; perhaps this will yield some inconsistent interpretations of law. But I favor this deference to the States; it should mean that decisions regarding the protection of endangered species will be made by the people closest to the situation, and therefore perhaps more sensitive the the affects and influences of such issues. It certainly divests the federal government of some control over protection of endangered species.

On June 25, 2007, the Supreme Court ruled 5-4 in Hein v. Freedom From Religion Foundation, Inc., 551 U.S. ____ (2007) that being a taxpayer is not enough to give an individual standing to bring a suit to challenge the Executive Branch's using faith-based programs for delivering social services as a violation of the First Amendment's Establishment Clause.

This ruling is important because it blocks law suits that challenges the government's accommodation of religion, including acknowledging religion and on occasion even working with religion in addressing social needs. The Hein ruling means that anti-religion zealots have no right to bring a law suit to challenge the work of the Executive Branch for involvement with religious organizations merely because this may hurt their feelings. The Hein ruling dictates that in order to have standing to challenge such Executive Branch action, the complaining party must show that it has suffered “injury in fact,” not just “psychic injury.”

The name of the complaining party indicates exactly what this law suit was all about. The complainant wants to eradicate all vestiges of religion from government. They are upset with the nation's long, constitutional tradition of accommodation of religion; they are madder still at the national motto, “In God We Trust” and at the statement in the pledge of allegiance that we are a nation “under God.” They cringe every time a President says, “God bless America.” Their stated goal is to change all of this. They wish to convert the meaning of the Establishment Clause of the First Amendment from a shield to a sword; they wish to change freedom of religion to freedom from religion.

The Hein ruling is an important defeat for the anti-religionists.

However, a review of the Hein ruling is interesting and important for some other reasons, too. Like the Court's ruling on the same day in FEC v. Wisconsin Right to Life, a majority of five conservative justices came to the same conclusion, but based upon different rationales. In fact, in both of these cases, the rationales of Justices Scalia and Thomas were in some respects closer to that of the dissenting Justices (Stevens, Souter, Ginsberg and Breyer), in that these six felt that the distinctions made by Chief Justice Roberts and Justice Alito were not logically sustainable—that there was no basis for limiting the application of Flast to Congressional acts but not to Executive acts. But in both cases, Justices Scalia and Thomas voted with the Chief Justice and Justice Alito because the former felt that the Court should overturn an erroneously decided case rather than to try to carve out an exception to the cases. I find this to be intellectually intriguing.

In Hein, discussion centers on the case of Flast v. Cohen, 392 U.S. 83 (1968), in which the Supreme Court ruled that a mere taxpayer had standing to challenge in court the government's using funds allocated by Congress under the Elementary and Secondary Education Act of 1965 to support parochial schools. (J. Scalia's concurring opinion, p. 5.) But the Court in Hein distinguished Flast by pointing out that Flast dealt with a Congressional act whereas the expenditure in Hein was a discretionary expenditure of the Executive Branch. Justices Scalia and Thomas agreed with the Chief Justice and Justices Kennedy and Alito as to the result—they just felt that Flast was wrong in the first place, and that it should be overturned.

I am with Justices Scalia and Thomas on this case. The “psychic injury” test for standing is bad policy. The Flast case continues to recognize and endorse this ephemeral standard. To illustrate the application of the “psychic injury” look at some litigation that took place in my town, Frederick, Maryland just a few years ago.An eighteen-year-old student filed suit to remove a Ten Commandments monument from the City's war veterans' memorial park. In order for this young man to state a valid cause of action he first had to declare that be seeing the Ten Commandments monument in the park that this caused him emotional pain and grief. For if the young man would not say that the monument bothered him, then he would not be able to challenge the constitutionality of the City's harboring of the Ten Commandments monument. The young plaintiff contacted the ACLU to get the legal direction he needed, then he claimed that the monument disturbed him, and then—because of the Flast case—he got standing to suit the City in court.

The Flast case has served to open the flood gates to a host of litigation aimed at making people feel good, rather than addressing claims for actual injuries in fact. The nation has become obsessed with addressing touchy, feely mental and emotional matters. The penchant for hate crime laws is another manifestation of this same trend. It is not enough to punish a criminal for his wrongful acts of violence, but we have enacted laws to give increased punishment if we can prove that the criminal harbored certain, specified bad intents at the time. This exercise is unnecessary; it is the product of legislators have too much spare time on their hands; it costs more tax monies to administer; and it causes all parties more money to implement.

Justices Scalia and Thomas were right to call for Flast to be overturned. They were unsuccessful in this, but at least the conservative block was successful in limiting the bad effects of Flast.

On June 25, 2007, the Supreme Court ruled in Morse v. Frederick, 551 U.S. ____ (2007) that Deborah Morse, a high school principal in Alaska, did not violate the free speech rights of one of her students, Joseph Frederick, when she confiscated a 14-foot banner that Frederick displayed at a school event, which banner bore the phrase, “BONG HiTS 4 JESUS,” and when she suspended Frederick for not complying with her directive to take the banner down.

This case was another 5-4 ruling, with newly appointed Justices Roberts and Alito on the side of the majority.

The key fact in this case is WHERE the speech event occurred. In most places and circumstances, such speech is fully protected by the First Amendment. But certain limitations kick-in when it occurs as a part of a school event.

The dissenting Justices (Stevens, Souter, Ginsberg and Breyer) complain that the suspension of Frederick was unfair; that the displaying of the banner was not disruptive; that the phrase did not encourage the use of drugs; and that Frederick had no intent to promote the use of drugs—that he was just trying to get attention. But the unique situation of the public school setting justifies the actions taken by Principal Morse in this case. The majority got it right.

The situation would be different if the student were disciplined for something he had said in an in-class discussion about drugs or politics or some other relevant issue. But when a student seeks to use a school forum to make his own speech, for his own purposes, his speech rights are limited because he has no right disrupt the school program or to use the other students to advance his agenda. And “disruption” should be broadly defined, and the school authorities should be given discretion to make the spur-of-the-moment judgments that they feel are best for the school. And their discretion should not be subject to review unless it is clearly erroneous.

While I, for one, disapprove of some of the public school curriculum that my children are and have been subjected to, nevertheless, the greatest problem facing our public schools today is the lack of discipline of the students and the lack of control that teachers have over their students. The increased freedom of students has led to significant increases in disrespect in classrooms; and this has in turn had a serious, deleterious effect on our public education system. If the school system must subject itself to recognize and showcase every student who decides to exercise his freedom of speech rights, this would lead to chaos.The Supreme Court’s ruling in Morse v. Frederick is a step in the right direction, to help the schools regain control so that the education environment can be better for all students.

Now, having shared my social commentary on Morse v. Frederick, let me say a little bit about the legal issues involved. The guiding case with respect to this school speech issue is Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). In that case the Supreme Court allowed students to wear black arm bands in protest of the Vietnam War. The Court ruled that unless the speech [the wearing of the armbands] would “materially and substantially disrupt the work and discipline of the school,” then the conduct was protected under the First Amendment. In that case the students’ conduct prevailed over the school administrators. But in the case of the “BONG HiTS 4 JESUS” banner, the principal said that the banner was taken down because she thought that it promoted illegal drug use. The student denied that this was his intent, and a close analysis of the wording yields uncertainty about what the phrase means. But the majority of the Supreme Court held (and correctly, in my opinion) that the principal’s “on the spot” action to confiscate the banner was a “reasonable” action for her to take in controlling student expressions that could contribute to dangerous conduct (Roberts, C.J., slip opinion, at p. 15).

It was important that this case be decided in favor of the school administrator for one, big reason: The school should not be made a stage for national debate on current social/political issues. A student should not be empowered to take over the education system at will by asserting a constitutional right at any time he chooses. To allow a student to assert a constitutional right at any time he/she chooses would be to sew the seeds of disruption in the school. In fact, this disruptive effect has already been in operation for over 30 years. It has contributed to a decline I the discipline and respect of students and to an increase in the widespread disrespect that now plagues public schools.

On June 25, 2007, the Supreme Court ruled 5-4 that the Federal Election Commission (FEC) erred in baring the Wisconsin Right To Life (WRTL) organization from broadcasting three issue ads during the 2004 election campaign. The three ads had addressed the concern of the WRTL to stop the Senate filibustering of the appointment of federal judges. The FEC had ruled that these ads were the functional equivalent of express advocacy because they implicated Senator Feingold, who was supportive of the filibusters and who was running for re-election. The U. S. District Court for the District of Columbia found in favor of WRTL, and overturned the ruling of the FEC; the court ruled that the three ads were not “express advocacy” ads and were not the “functional equivalent” of express advocacy. The Supreme Court affirmed the ruling of the District Court.

This is an important ruling because it effectively overturns part of the McCain-Feingold, Bipartisan Campaign Reform Act of 2002 (BCRA). Just three years ago, the Supreme Court ruled (5-4) in McConnell v. Federal Election Commission, 540 U.S. 93 that the BCRA was constitutional. For those who have followed this issue for some time, you may recall that after its passage in Congress, there was considerable disappointment among conservatives that President Bush did not veto the bill. Some thought that the President may have been counting on the Supreme Court to invalidate the law. This writer, for one, had predicted that the Court would find the BCRA to be an unconstitutional limitation on speech that is protected under the First Amendment. But, by the narrowest of margins (5-4) the Supreme Court upheld the BCRA.

The issue that was before the Court in FEC v. WRTL addressed one aspect of BCRA—issue ads that are aired by corporations during the blackout period, 30 days before a primary and 60 days before a general election. The WRTL wanted to run their three issue ads during the regulated period even though they acknowledged that the BCRA prohibited their broadcast. The WRTL argued that the issue ads were protected speech that must be permitted regardless of the prohibiting language of the BCRA. The Supreme Court agreed.

This case is so significant because it is very difficult to distinguish between issue ads (which are not barred by the BCRA) and express advocacy ads for or against specific candidates for election (which are barred by the BCRA). The difficulty to distinguish the two is demonstrated in the WRTL case. While the wording of the ad addressed an issue and did not directly encourage voters to vote for or against any candidate, the effect of the ad was to criticize Senator Feingold for supporting a filibuster of a Senate vote on the President's judicial nominees. Thus, the effect of the WRTL ads was to indirectly criticize a candidate. But five of the Justices upheld the right of WRTL to broadcast its issue ads regardless of whether the effect might be to help or hurt a particular candidate.

But the Court was not unified in the reasoning for this ruling, and that makes the case even more intriguing. Chief Justice Roberts and Justice Alito reasoned that the McConnell ruling of three years ago had preserved for corporate speakers a right to broadcast issue ads during the blackout period so long as they were not “express advocacy” or the “functional equivalent” of express advocacy. Then, Justice Roberts reasoned that an issue ad should not be deemed the functional equivalent of express advocacy unless the ad “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” This, of course, is an extremely broad test that would protect almost all issue ads from being found to “express advocacy.” This, broad standard, that would immunize most issue ads from the reach of the BCRA is so protective of issue ads that all seven of the other Justices argued that it would effectively overturn the McConnell case. That's where Justices Scalia, Kennedy and Thomas come in; they wanted to specifically overturn that portion of the McConnell case; and for that reason they joined in a concurring opinion (authored by Justice Scalia) that ruled in favor of WRTL, but they would invalidate part of the McConnell ruling. This left the remaining four Justices complaining in their dissent (by Justice Souter) that the Court had erred by effectively overturning a major part of the McConnell case by invalidating Section 203 of the BCRA.

Where does that leave us as the 2008 Presidential Campaign is fast upon us? The BCRA remains good law, but the ruling in FEC v. WRTL effectively guts it with respect to corporate issue ads.Personally, I prefer Justice Scalia's reasoning, but the reasoning of Chief Justice Roberts is not bad either. And that's what you get with a plurality decision—more than one rationale in support of a specific ruling. In any event, this ruling is an important victory for fundamental freedom of speech rights.

In Liam Farrell's column on January 26th, he reports that my prayer on January 19th was in violation of the Constitution and in violation of Frederick City guidelines enacted in August of 2002. His conclusions are ill-founded in both instances.

Mr. Farrell cites the Sixth Circuit case of Coles v. Cleveland Board of Education, 183 F.3d 538 (1999) for the opinion that praying by an alderman in the name of Jesus violates the First Amendment. That case is clearly inapplicable to our Frederick issue. The Court in Coles held that the Constitutional prohibition against state endorsed school prayers at graduations (Lee v. Weisman [1992]) and at football games (Santa Fe. v. Doe [2000]) should also be extended to prohibit prayers at board of education meetings. Frederick City Mayor and Board of Aldermen meetings have no connection with the board of education. In addition, rulings of the Sixth Circuit can have persuasive effect, but are not controlling in the Fourth Circuit (which covers Maryland).

With regard to the 2002 Frederick City Invocation Guidelines, it is not entirely clear what specific guidelines were passed by the previous Board. However, I have reviewed the one-page list of requirements and the three examples of “acceptable” prayers that are a part of those guidelines. Those guidelines are a clear violation of the Establishment Clause of the First Amendment. City Policy mandating only watered down, but all-inclusive prayers is unconstitutional. The basic flaw in them is that they attempt to dictate the substance of a prayer. But the state cannot dictate or proscribe any particular prayer or religion. The government cannot evaluate which prayers are acceptable and which are not. The guidelines were a futile attempt to regulate how one could pray at City Hall. One regulation required one to “use universal, inclusive terms for deity rather than particular proper names for divine manifestations.” The guideline approved of four references to God to begin a prayer: “Mighty God,” “Our Maker,” “Source of all Being,” and “Creator and Sustainer.” The guideline also approved four ways to end a prayer: “Hear Our Prayer,” “In Thy Name,” “May Goodness Flourish,” or “Amen.” These guidelines were apparently an attempt to allow prayers that could not possibly offend anyone. They failed at that, and they fail to satisfy the requirements of the Establishment and the Free Exercise Clauses of the First Amendment.

It seems to me that if the City of Frederick is serious about tolerating and celebrating the rich diversity of its citizenry, that we should want to learn and understand the religious and philosophical foundations of one another. By allowing someone to offer an invocation at a Board of Aldermen meeting does not mean that the City subscribes to the religious views of the one speaking or praying. It was my understanding when Mayor Holtzinger asked me to offer an invocation at our first meeting, that he would extend the same offer to others in the future, and without telling them how to do it. I hope that this happens. If we are a tolerant and inclusive people, we will appreciate learning about religious views of others.

Finally, it should be pointed out that the state and local legislators have first amendment freedoms in what they say. For example, if in debating a proposed law I were to say that I was in favor of a particular ordinance “because that's what Jesus would want,” this statement would not violate the Establishment Clause because it is not official government action, and it would be protected by the Free Exercise Clause. Freedom of speech in Maryland envisions open and robust debate of issues. However, that legislator's speech is protected, if the City should then pass a law including such language, that law would violate the Establishment Clause. (See Lemon v. Kurtzman, 1972.)

The happenings and discussion during the last week are evidence that many people do not understand the parameters of the Establishment Clause. I hope this helps a little. While I personally have strong religious bases for my beliefs and philosophy, I have always found it best to use facts and reasons to support my views. Especially in the political arena, an appeal to God as a basis for one's positions usually stifles debate rather than leads to understanding. While I would not promise that I would never argue in favor of something because I believe it to be God's will, I do believe that God can help one to understand reasons to take certain actions that in harmony with His will. Our state and federal constitutions guarantee legislators the right to be either overt or silent in disclosing the role of religious beliefs as a foundation for their votes.

The Constitution does not require a separation of church and state. The “wall of separation” phrase that was coined by Thomas Jefferson, does not exist in the Constitution and did not appear in Supreme Court jurisprudence until the 1946 case of Everson v. Walls, in which the Supreme Court upheld the right of New Jersey to use public funds to pay for transportation of children to a private, religious school. The more accurate standard to reflect the relationship between the two is that reasonable accommodation is allowed provided there is not excessive entanglement. Chief Justice Rhenquist addressed this on June 27, 2005 by Chief Justice Rhenquist in Van Orden v. Perry; 545 U.S. ____ (2005) [Slip Opinion, p.8] where the Supreme Court upheld the placement of a Ten Commandments monument on the grounds of the Texas State Capitol:

Recognition of the role of God in our Nation's heritage has also been reflected in our decisions. We have acknowledged, for example, that “religion has been closely identified with our history and government,” School Dist. of Abington Township v. Schempp, 374 U.S., at 212, and that “[t]he history of man is inseparable from the history of religion,” Engel v. Vitale, 370 U.S 421, 434 (1962). This recognition has led us to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State. Marsh v. Chambers, 463 U.S., at 792. Such a practice, we thought, was “deeply embedded in the history and tradition of this country.” Id., at 786.

In his Thursday column, Liam Farrell cited the case of Coles v. Cleveland Board of Education, 183 F.3d 538 (6th Cir. 1999) for the proposition that praying in the name of Jesus at a board of education meeting violates the Establishment Clause. However, his application of that case to the Frederick City prayer situation is misplaced. The Coles ruling applies only to government boards dealing with the public education of minors. The Sixth Circuit (by a 2-1 votge) extended the school prayer prohibition at graduations (Lee v. Weisman [1992]) and football games (Santa Fe v. Doe [2000]) to local school board meetings. The dissenting judge in Coles disagreed with the extension; he felt that invocations at a school board meeting were permissible under Marsh v. Chambers (1983). That the Supreme Court did not review the Coles case is not dispositive of the issue. Rulings of the Sixth Circuit can have persuasive effect, but are not controlling in the Fourth Circuit (including Maryland).

This newspaper has published both favorable and critical comments on the prayer I offered at the new Board's first meeting in 2006. I wish to respond to several of the criticisms that as yet have not been addressed regarding the propriety and the constitutionality of an elected official's having offered a prayer in the name of Jesus at a legislative session.

In his January 26th column, Liam Farrell cited the Sixth Circuit case of Coles v. Cleveland Board of Education, 183 F.3d 538 (1999), as a legal precedent that my prayer violated the Constitution. But the facts and the rationale of that case do not apply to our Frederick City prayer situation. The Coles case is worthy of note because it is unique in extending the prohibition against state conducted prayers at local board of education meetings. The Supreme Court has prohibited state-conducted prayers at graduations (Lee v. Weisman [1992]) and at football games (Santa Fe v. Doe [2000]). To my knowledge, only the Sixth Circuit has endorsed extending the prohibition of state-conducted prayers to board of education meetings. Regardless, the Coles ruling is clearly inapplicable to the Frederick City situation since the City has no connection with board of education matters. Additionally, rulings of the Sixth Circuit can have persuasive effect, but are not controlling in the Fourth Circuit (which covers Maryland).

In his January 25th column, Liam Farrell also wrote that my prayer was “contrary” to the invocation guidelines enacted by the Board in August 2002. Having now reviewed those guidelines, I must confess that it does appear that my prayer has violated the set of rigorous requirements that the former Board sought to impose on those who might pray at City Hall. Further, my prayer clearly did not match any of the three prayers that former Board approved as acceptable prayers for City meetings. In addition, my prayer did not use one of the four “acceptable” references to God that have been approved: : “Mighty God,” “Our Maker,” “Source of all Being,” and “Creator and Sustainer.” Additionally, my prayer did not employ one of the approved endings. Neither was my prayer sufficiently watered down nor sufficiently all inclusive, and it obviously did not pass the all-important test of having offended no one. All of this I confess. However, the Board's 2002 invocation guidelines are unconstitutional; they are a clear violation of the Establishment Clause because they attempt to dictate the substance of a prayer. This the government cannot do. The guidelines were a failed attempt to regulate how one could pray at City Hall. I would encourage those interested in this issue to read the following case to understand a little about the Establishment Clause principles that govern prayers before legislative sessions. March v. Chambers, 463 U.S. 783 (1983). If you will compare the Marsh case to the Coles case, you will likely agree with me that two of the three judges in Coles have misinterpreted Marsh.

The constitutionality of my prayer was also questioned because it did not occur until after the Board meeting was called to order. This is a difference without a distinction.

In Liam Farrell's January 26th column he concludes by reciting the three-part test that the Supreme Court often applies in determining whether a particular state action violates the Establishment Clause. (State activity (1) must have a secular purpose, (2) must not advance nor inhibit religion; and (3) must not create excessive entanglement between state and religion. Lemon v. Kurtzman, 403 U.S. 602 [1971]). However, the Marsh case clearly demonstrates that this test does not apply to state-conducted prayers before legislative sessions.

The Court said in Marsh: “The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.” The Court wrote this after approving the Nebraska Legislature's practice of having selected only one clergyman to be its chaplain for 16 years, for paying the chaplain out of state funds, and despite the fact that this chaplain's prayers “were in the Judeo-Christian tradition.” The Marsh squarely supports the conclusion that my prayer did not run afoul of the Establishment Clause.

Some have contended that as an elected Alderman (a legislator) that it was improper for me to offer a prayer and to make reference to my belief in Jesus Christ. This contention is in error. First of all, the words of a legislator do not constitute state action. Secondly, the freedom of speech and the state policy of promoting an open and robust debate on important issues protects the individual legislator's right to speak freely. For example, if a legislator were to state in advocating for his county to place a Ten Commandments monument on the courthouse grounds because that's what Jesus wants, the legislator's words would not violate the Establishment Clause. However, if it is later shown that a majority of the legislators passed the law for that same reason, then the placement of the Ten Commandments monument would violate the Establishment Clause. (See McReary County v. ACLU, 545 U.S. ____ (2005).

But a legislator's words are different from the passage of a law.

Some people have the flawed understanding that the Constitution requires a complete separation of church and state. The “wall of separation” phrase that was coined by Thomas Jefferson, does not exist in the Constitution and did not appear in Supreme Court jurisprudence until the 1946 case of Everson v. Board of Education, 330 U.S. 1 (1947) in which the Supreme Court upheld the right of New Jersey to use public funds to pay for transportation of children to a private, religious school. The more accurate standard to reflect the relationship between the two is that reasonable accommodation is allowed provided there is not excessive entanglement. Chief Justice Rehnquist addressed this on June 27, 2005 in Van Orden v. Perry; 545 U.S. ____ (2005) [Slip Opinion, p.8] where the Supreme Court upheld the placement of a Ten Commandments monument on the grounds of the Texas State Capitol:

Recognition of the role of God in our Nation's heritage has also been reflected in our decisions. We have acknowledged, for example, that “religion has been closely identified with our history and government,” School Dist. of Abington Township v. Schempp, 374 U.S., at 212, and that “[t]he history of man is inseparable from the history of religion,” Engel v. Vitale, 370 U.S 421, 434 (1962). This recognition has led us to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State. Marsh v. Chambers, 463 U.S., at 792. Such a practice, we thought, was “deeply embedded in the history and tradition of this country.” Id., at 786.

Finally, it seems to me that if the City of Frederick is serious about tolerating and celebrating the rich diversity of its citizenry, that we should want to learn and understand the religious and philosophical foundations of one another. By allowing someone to offer an invocation at a Board of Aldermen meeting does not mean that the City subscribes to the religious views of the one speaking or praying. It was my understanding when Mayor Holtzinger asked me to offer an invocation at our first meeting, that he would extend the same offer to others in the future, and without telling them how to do it. I hope that this happens. If we are a tolerant and inclusive people, we will appreciate learning about religious views of others.