Due to the advanced age and lengthy service of many of the Associate Justices of the U.S. Supreme Court, it is likely that our next president will make one or more nominations to the bench during his term. Currently, Justice John Paul Stevens is 88 years old and five other justices are age 69 or over: Justice Ruth Bader Ginsberg (75), Justice Anthony Kennedy (72), Justice Antonin Scalia (72), Justice Stephen Breyer (70) and Justice David Souter (69). Republican presidential candidate John McCain has been clear about how he would act if elected, stating that Chief Justice Roberts and Justice Alito--both nominees of the Bush administration--"would serve as the model for my own nominees."
A July 8-13 Quinnipiac poll found that only one in three Americans think that the highest court in the land is moving in the right direction, however. This finding is not unexpected, as the Roberts Court has produced increasingly reckless and partisan opinions.
The recent District of Columbia v. Heller decision is a prime example. In the 5-4 ruling, the Court decided that the District of Columbia's ban on private handgun ownership violated the Second Amendment. The majority opinion also explicitly endorsed an individual right to bear arms outside of service in "a well regulated Militia" -- a position virtually without precedent at the federal appellate court level prior to the Heller case.
A cursory reading of the Heller decision may lead one to believe that it articulates a mainstream position on guns in the country. After all -- whether I like it or not -- the proposition that the Second Amendment protects an individual right to bear arms outside of service in a militia has gained broad favor with the American public in recent years.
Upon closer reading, however, the majority opinion drafted by Justice Scalia goes far beyond simply asserting an individual right to own a firearm in the home for self defense against common criminals. Incredibly, he also endorsed an individual right to commit acts of violence against a "tyrannical" federal government which, if history is any lesson, most Americans would find appalling.
In the ruling, Justice Scalia wrote: "If...the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia...if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment's guarantee -- it does not assure the existence of a 'citizens' militia' as a safeguard against tyranny." Later in the opinion, Justice Scalia mused that while common weaponry owned by private citizens may be no match for the firepower of the U.S. military, the Second Amendment gives every citizen a right to take their best shot at our government, both literally and figuratively ("Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.").
In Article 1, Section 8 of the U.S. Constitution, our Founders clearly stated that one of the chief missions of the state militias was to "suppress insurrections." The Roberts Court has taken the Founders' carefully articulated response to acts of internal violence such as Shay's Rebellion and turned it on its head, arguing that the Second Amendment functions as a tool to foment armed insurrection against the federal government. The Heller decision even ignored the explicit ruling in Presser v. Illinois (1886), where the Supreme Court found that no citizen group or militia was entitled to bear arms and organize itself militarily independent of an act of Congress or law of the State.
Like other pieces of insurrectionist writing, Justice Scalia's majority opinion fails to resolve a number of critical questions related to this theorized "right." Does he actually believe that an individual has a right to decide when armed resistance against the U.S. government is justified (a la Timothy McVeigh)? What criteria should such a decision be based upon? Moreover, didn't America's Civil War forever repudiate the notion that there is a constitutional right to insurrection? As Abraham Lincoln famously wrote in a letter to James C. Conkling: "Among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such an appeal are sure to lose their case, and pay the cost." Lincoln also stated in his first inaugural address: "It is safe to assert that no government proper, ever had a provision in its organic law for its own termination."
By ignoring these important historical lessons, Justice Scalia has left his opinion open to radical interpretation and invited would-be-insurrectionists to draw their own conclusions about his intent. This is an incredibly dangerous precedent which suggests that the Roberts Court might not just be moving in the wrong direction, but in a direction that presents a direct threat to the rule of law and our very democracy.
Taking into consideration Senator McCain's lavish praise for Justices Alito and Roberts as ideal Supreme Court justices, it is likely that if elected he would nominate right-wing ideologues to the Court who embrace the insurrectionist idea. His selection of Alaska Governor Sarah Palin -- who recently told the secessionist/insurrectionist Alaskan Independence Party to "keep up the good work" in a videotaped greeting for their 2008 annual conference -- as a vice presidential candidate is also worrisome. These are factors well worth considering this election season.