Wednesday, March 03, 2010

Fundamental rights subject to what, again?

Supreme Court justices, in yesterday's arguments in McDonald v. Chicago:

(Stephen) Breyer said even a basic right such as gun ownership should be balanced by arguments about how restrictions could save lives.
"When it's free speech versus life, we very often decide in favor of life," Breyer said. "Here, every case will be on one side guns, on the other side human life."
Roberts and others opposed such limitations, but the chief justice said that even a fundamental right is "still going to be subject to the political process."

Wow. One wonders what other fundamental rights they would subject to the political process, ostensibly in the name of public safety, and public welfare too. I'm sure that violations of the Fourth Amendment could have gotten quite a few dangerous people off the streets, but I would think the Founding Fathers thought it worth the risk -- better a thousand guilty men go free than one innocent be locked up, as the old saying goes. I guess this sort of thing is what happens when the nanny-state takes over, but it's still quite disheartening to see this mentality espoused by members of the highest court in the land. I know many people decry the fact that judges are elected instead of appointed here in Texas, but is it a good thing when you get a judiciary that says things like "fundamental rights are going to be subject to the political process" and they can't be held accountable via that very process?

I also found what Breyer said to be a bit amusing. One wonders if he includes the lives of the criminals prowling the streets to be worthy of consideration. Based on his rhetoric, I am guessing he does. And then we have Gerald Ford appointee John Paul Stevens "wonder(ing) if a limited Second Amendment right could be applied to the states, so that ownership in the home was protected, as opposed to 'the right to parade around the streets with guns.'" Which more or less renders the Second Amendment meaningless, because if you only have a right to defend yourself in your home, do you really have that right recognized?

And then there was Antonin Scalia, whom you will remember Josh Sugarmann blasting as an "ambassador to the gun industry," speaking about incorporation of the 14A via the privileges and immunities clause being "contrary to 140 years of our jurisprudence." It strikes me that he's putting the stare decisis doctrine at the head of the list of things to be protected here, and while I can understand that, is stare decisis such a good thing when it leads to continued deprivation of rights or leaves the door open for such?