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antonin scalia
Guns, the Supreme Court, and American Way of Death
How the nation's highest court supercharged the nation’s gun violence epidemic.
Sep 21, 2024
If you’re looking for someone to blame for the gun violence that has left our schools, streets, and communities soaked in blood, don’t point just at the National Rifle Association and their lackeys in the Republican Party. Raise another finger, ideally your middle one, toward a Supreme Court that has enabled the unceasing rise of gun-related carnage in all its ever-more-obscene forms.
The key decision came in 2008, when a 5-4 majority led by the late Justice Antonin Scalia ruled in District of Columbia v. Heller that the Second Amendment protects an individual right to own firearms. Prior to Heller, the combined weight of academic scholarship and legal precedent had construed the Second Amendment as protecting civilian gun ownership only in connection with long-antiquated state militias. This view was long seen as reflecting the spirit of the actual debates held during the Constitutional Convention of 1787.
Scalia and the other members of the conservative Heller majority purported to base their radical reinterpretation of the Second Amendment on their “originalist” understanding of the Founding Fathers’ intentions. But their novel conclusion essentially ignored the first 13 words of the Second Amendment regarding the necessity of preserving the militias.
This amounted to a distortion of American history. State militias played a critical role in the American Revolution, and before that, in maintaining order in the 13 colonies. As the Second Amendment historian Noah Shusterman has written:
The men writing the Bill of Rights wanted every citizen to be in the militia, and they wanted everyone in the militia to be armed. If someone was prohibited from participating in the militia, the leaders of the founders’ generation would not have wanted them to have access to weapons… Read the debates about the Constitution and the Bill of Rights, and the militia’s importance leaps off the page. Alexander Hamilton, writing in the Federalist Papers, called a well-regulated militia “the most natural defense of a free country.” His anti-Federalist critics agreed with the need for a citizens’ militia, writing that “a well-regulated militia, composed of the Yeomanry of the country, have ever been considered as the bulwark of a free people.”
Few errors of constitutional interpretation have had such deadly real-world consequences as Heller. Justice John Paul Stevens, who authored the principal dissent in Heller, later condemned the ruling as “the worst self-inflicted wound in the court’s history.”
Since Heller, both guns and gun deaths have surged in tandem in what the American Enlightenment Project calls the “Heller Inflection.” In 2008, there were 305 million guns in circulation and 31,500 reported gun deaths; there are now 470 million guns in circulation and over 45,000 reported gun deaths per year. Mass shootings, defined as events involving four or more victims, have grown as well—from 272 in 2014 to 653 last year, according to the Gun Violence Archive.
But as bad as Heller was, it still recognized that certain gun control measures remained “presumptively lawful.” In the words of Scalia:
Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
In 2010, in McDonald v. Chicago, the court extended Heller’s Second Amendment analysis to cover state and local governments in addition to federal enclaves. But in 2022, with Clarence Thomas’ 6-3 majority opinion in New York Rifle & Pistol Association v. Bruen, the court cast aside the limiting language of Heller about presumptively lawful gun-control restrictions.
Bruen struck down New York’s firearm permit system that had been on the books since 1909. To reach that result, the court rejected the traditional methods of judicial scrutiny used to determine the constitutionality of state and federal statutes that required judges to balance the governmental interests advanced by legislation against the competing rights of individuals. In place of interest balancing, Thomas and his cohorts substituted a specious “history and tradition” test based on the justices’ highly selective and subjective reading of history and their sense of tradition.
In fact, gun-control regulations like the New York permit system have been commonplace in the United States from colonial times to the present. The founders supported a variety of strict measures, including the registration of guns issued to militia members and prohibitions against carrying firearms in public. By the early 1900s, nearly every state had enacted laws requiring firearm licenses and banning concealed carry.
As a result of Bruen, however, that history has effectively been neutered. Judges now must regard gun-control measures as presumptively invalid. To overcome the presumption, the government must prove that even the most commonsense laws are firmly rooted, either explicitly or by analogy, in the “nation’s historical tradition of firearm regulation.”
Together with Heller and McDonald, Bruen has led to a surge in Second Amendment challenges to gun laws since 2008. Pre-Heller, the lower federal courts decided an average of 26 gun cases per year; they now hear nearly 700 per year. The challengers are also winning a higher percentage of cases compared to the pre-Heller era, especially in cases decided by Donald Trump-appointed judges appointed. “Trump judges are close to casting 50% of their votes in favor of gun rights, when the average for other Republicans is 28%,” one study has found.
Last term, the Supreme Court surprised many by upholding a federal law that bars anyone subject to a domestic-violence restraining order from possessing a gun. However, it did so without signaling that it is prepared to modify the hard Second Amendment lines drawn in Heller and Bruen. As long as the court is controlled by right-wing activists beholden to the gun lobby and the Republican Party, those lines and their horrendous consequences are here to stay.
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Database Reveals 'Staggering' $6.6 Million in Gifts to Supreme Court Justices
"The Supreme Court's gifts shouldn't be a secret—Congress must pass a binding code of ethics now," said one advocate.
Jun 07, 2024
U.S. Supreme Court justices have received millions of dollars in gifts over the past two decades—with far-right Justice Clarence Thomas being the main beneficiary of this largesse, according to a detailed analysis published Thursday.
The advocacy group Fix the Court published a database listing 546 total gifts valued at over $4.7 million given to 18 current and former justices mostly between 2004 and 2023, as identified by the U.S. Federal Trade Commission (FTC). The database also lists "likely" gifts received by the justices and their estimated values, bringing the grand total to 672 gifts valued at nearly $6.6 million.
The database was published a day before the justices are expected to release their financial disclosure reports.
"Supreme Court justices should not be accepting gifts, let alone the hundreds of freebies worth millions of dollars they've received over the years," Fix the Court executive director Gabe Roth said in a statement Thursday.
Thomas led the pack with 193 FTC-identified gifts collectively valued at over $4 million. Of these, he listed only 27 in financial disclosure reports.
According to Fix the Court, Thomas' gifts consisted mainly of
free trips to Bohemian Grove—a secretive, men-only retreat in Northern California—and Topridge, the private lakeside resort in upstate New York owned by billionaire Republican megadonor Harlan Crow.
By dollar amount, the late Justice Antonin Scalia came in a distant second with 67 gifts worth over $210,000 combined, while Justice Samuel Alito took 16 gifts valued collectively at just over $170,000. At the low end of the database, Justice Brett Kavanaugh received a single gift worth $100, while former Justice David Souter was also given one gift with a value of $349.
According to the analysis:
The tally includes the amount of principal and interest—$253,686—we believe Tony Welters forgave in 2008 for the luxury RV he gifted to Thomas the decade before. FTC's numbers include the tuition gifts, $144,400 across six years, Thomas received for his grandnephew... It captures the value of Thomas' yacht trips to Russia, the Greek Isles, and Indonesia, as well as some new information on the Thomas flights Tony Novelly paid for and the Scalia and Alito fishing trips Robin Arkley paid for that's included in the congressional record. The value of the gifts Scalia received on his ill-fated trip to Marfa, Texas, in 2016 are also included.
"Public servants who make four times the median local salary, and who can make millions writing books on any topic they like, can afford to pay for their own vacations, vehicles, hunting excursions, and club memberships," said Roth, "to say nothing of the influence the gift-givers are buying with their 'generosity.'"
"The ethics crisis at the court won't begin to abate until justices adopt stricter gift acceptance rules," he added.
Thomas' gifts from billionaire Republican donors—and his refusal to report them—have fueled calls for his recusal from some cases and even resignation.
Following intense public pressure, the Supreme Court last November announced it had formally adopted a code of conduct that was promptly slammed as a "toothless PR stunt" by the watchdog Revolving Door Project and others.
"The ethics crisis at the court won't begin to abate until justices adopt stricter gift acceptance rules."
"Headline after headline about Supreme Court justices accepting lavish vacations and eye-poppingly expensive gifts is bound to erode trust in the court," U.S. Sen. Jeff Merkley (D-Ore.) said on social media Wednesday. "We need to pass the Supreme Court Ethics, Recusal, and Transparency Act and enforce a real code of ethics."
Fix the Court and other groups also support the Supreme Court Ethics and Investigations Act, which was introduced earlier this week by Congressman Dan Goldman (D-N.Y.) and would create a Supreme Court Office of Investigative Counsel tasked with investigating ethical improprieties and reporting them to Congress.
Reacting to the new analysis, the pro-democracy group Stand Up America said, "The Supreme Court's gifts shouldn't be a secret—Congress must pass a binding code of ethics now."
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The Right-Wing Supreme Court Could Validate Gov Abbott’s War on Immigrants
Of the five-member majority that scuttled much of Arizona’s Papers Please law, which has similarities to Texas’ SB 4, Kennedy, Ginsburg, and Breyer are no longer on the bench.
Apr 12, 2024
Texas Republican Gov. Greg Abbott may be a grandstanding demagogue, but he is no dummy. He knew exactly what he was doing, legally and politically, when he signed Senate Bill 4 into law last December, empowering the state to set up its own deportation system for undocumented immigrants.
SB 4 makes it a state crime to cross the Texas-Mexico border other than at official ports of entry. If the law survives court challenges, local police will be authorized to arrest anyone in the state suspected of illegal entry. First-time offenders will be charged with misdemeanors, exposing them to sentences of six months in jail. Repeat offenders could be charged with second-degree felonies that could land them in prison for 20 years. For both misdemeanors and felonies, state court judges would be authorized to order offenders deported to Mexico, regardless of their countries of origin.
For Abbott, the enactment of SB 4 caps years of loud posturing and badmouthing of the Biden administration on the dangers of immigration and “open borders.” Among other provocations, Abbott has ordered the state’s national guard to line the Rio Grande with razor wire, bused over a hundred thousand migrants to so-called “sanctuary cities” like New York and Chicago, and declared that Texas is facing an “invasion” akin to a state of war. Such maneuvers play to the MAGA base of the Republican party, and align closely with former President Donald Trump’s campaign promises to stage the “largest deportation effort in the history of our country” should Trump win back the White House in November.
The question arises: Could Antonin Scalia, the famed right-wing judicial “originalist” who died in 2016, rise from the grave and provide constitutional cover for SB 4?
SB 4 was supposed to go into effect on March 1, but has been tied up in court as a result of lawsuits brought by the U.S. Justice Department and the ACLU on behalf of two Texas-based immigration advocacy organizations and the County of El Paso. The litigation has ping-ponged through the federal system, briefly reaching the Supreme Court, which on March 19 issued an order allowing the law to go into effect pending a decision on its constitutionality by the 5th Circuit Court of Appeals, which has jurisdiction over Texas. In the meantime, the Circuit has put the law on hold. A three-judge panel heard oral arguments on April 3, and a ruling is expected in the coming weeks.
At first glance, as the plaintiffs contend, SB 4 appears unconstitutional on its face for conflicting with federal immigration law and running afoul of the Supreme Court’s 2012 decision in Arizona v. United States, which struck down several provisions of a similar anti-immigration state statute.
The ACLU and the advocacy groups it represents also contend SB 4 will lead to family separation and rampant racial profiling. Even the government of Mexico has weighed in, advising that it will not accept migrants deported from Texas as a result of SB 4.
Abbott, whose resumé includes stints as a justice of the Texas Supreme Court and the state’s attorney general, understands the criticisms and seems eager for a fight. “We think that Texas already has the constitutional authority to do this, but we also welcome a Supreme Court decision that would overturn the precedent set in the Arizona case,” he said at the December signing ceremony for the law. What’s more, he added, “Justice Scalia wrote a dissenting opinion in that case, pretty much laying out a pathway that he thought would be a legal way for a state to go about the process of enforcing immigration laws.”
The question arises: Could Antonin Scalia, the famed right-wing judicial “originalist” who died in 2016, rise from the grave and provide constitutional cover for SB 4? The answer depends on the current Supreme Court’s willingness to overturn or significantly modify its holding in Arizona v. United States.
In the Arizona case, the Supreme Court reviewed a statute that made it a crime to be present in the state without lawfully registering with the federal government, and to work in the state without federal authorization. Local police were permitted to verify the immigration status of those suspected of being undocumented, arrest suspected violators without warrants, and transmit their findings to federal immigration authorities to facilitate deportation proceedings. The provisions gave rise to the statute’s nickname as the “Papers Please” law.
By a margin of 5-3, with Justice Anthony Kennedy writing for the majority and Justice Elena Kagan recusing herself due to her prior involvement in the case as U.S. solicitor general, the Supreme Court overturned the provisions that created new immigration-based state crimes and approved of warrantless arrests. The court, however, upheld the immigration-status check provision, but narrowed it to checks made during otherwise lawful arrests for ordinary non-immigration crimes.
Justices Clarence Thomas and Samuel Alito, Justice Scalia wrote separate opinions concurring with the majority’s ruling on status checks but dissenting from the remainder.
At the heart of both the majority opinion and the dissents is a thorny constitutional doctrine called “preemption.” In the most basic sense, the doctrine instructs that when state and federal law conflict, federal law displaces, or preempts, state law because of the Supremacy Clause (Article VI) of the U.S. Constitution. Kennedy and the majority determined the three Arizona provisions they invalidated were preempted by the federal government’s “broad, undoubted power over the subject of immigration and the status of aliens.”
Scalia took strong and colorful exception to Kennedy’s reasoning. Like Gov. Abbott today, he argued that the Arizona statute did not conflict with federal law, but complemented the federal system, making immigration enforcement more effective.
Referring to the United States as “an indivisible union of sovereign states,” Scalia argued: “As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.”
It was a “myth,” he continued, that the states had no power under the Constitution to exclude people from their borders. To the contrary, he wrote: “[I]n the first 100 years of the Republic, the states enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks.”
Prefiguring Gov. Abbott’s “invasion” rhetoric with almost eerie precision, Scalia cited the Constitution’s “Invasion Clause” (Art. I, §10, cl. 3), which stipulates:
“[N]o State shall, without the Consent of Congress,... engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” [Emphasis in the original.]
It’s tempting to dismiss Scalia’s dissent as “extreme and outdated,” as Los Angeles Times reporter David Savage has written. But if the conservative takeover of the Supreme Court has taught us anything, it is that the high court’s precedent decisions are considered fair game for reversal by the hard-right justices who dominate the court today. (Take a look at the court’s recent decisions on abortion and the Second Amendment.)
Of the five-member majority that scuttled much of Arizona’s Papers Please law, Kennedy, Ginsburg, and Breyer are no longer on the bench. Though Scalia is also gone, the court’s three Trump appointees—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—are all Scalia protegees. If and when Texas’ SB 4 comes back to the Supreme Court, it will not be surprising if they join with Thomas and Alito to resurrect Scalia’ ghost and validate Gov. Abbott’s war on immigrants.
With the November elections looming and border security a key issue, the war’s pace is certain to accelerate.
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