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The Supreme Court’s decision in McDonald v. Chicago underscores just how close this country came to losing the fundamental right to bear arms and just how important the debate over President Obama’s nominee to the Supreme Court, Elena Kagan, will be.

By a narrow 5-4 margin, the Supreme Court held that the Second Amendment guarantee enshrined in the Constitution applies equally to state and local governments. In an earlier decision, District of Columbia v. Heller, the Court held by a narrow 5-4 margin that this fundamental guarantee applies to the federal government.

After Heller, the application of the Second Amendment to the states should have been a no-brainer. The Court in Heller declared that the Second Amendment right to bear arms is a “fundamental” right firmly rooted in our nation’s history and traditions. In the past, the Supreme Court has held that such “fundamental” rights apply equally to state and local governments.

Nonetheless, the fight to water down the right to bear arms continued in McDonald. There, the City of Chicago and Village of Oak Park sought to preserve ordinances that essentially prohibited the possession of handguns within city limits. In Heller, the Supreme Court held that a similar handgun ban in the District of Columbia violated the Second Amendment. However, the Court did not specifically address whether the Second Amendment prohibited states from enacting similar restrictions.

The Court in McDonald confirmed that its prior decision in Heller applied equally to state and local governments. In so ruling, it provided a powerful affirmation of the fundamental nature of the right to bear arms. Analyzing the plain language and history of the Constitution, Justice Samuel Alito reiterated that the right to bear arms was a “basic” and “fundamental” right that enjoyed full constitutional protection, refusing to treat it as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

This ruling, however, drew strongly-worded dissents. For example, Justice Stephen Breyer wrote that he could “find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.” Likewise, Justice John Paul Stevens wrote that “the Second Amendment differs in fundamental respects from its neighboring provisions in the Bill of Rights” because “firearms have a fundamentally ambivalent relationship to liberty” and may be “misused.” Accordingly, he refused to adopt a “rigid historical methodology” that applied the Second Amendment to the states, arguing that such an approach would be “unfaithful to the Constitution’s command.”

Thus, the decision in McDonald demonstrates, once again, that the Court is deeply divided over gun rights. Moreover, this debate is likely to continue as courts struggle with the permissible scope of state regulation of the fundamental right to bear arms. As Justice Stevens observed in his dissent, “it is far from clear that proponents of an individual right ought to celebrate today’s decision.” The battle over Second Amendment rights is likely to drag on.

The McDonald decision also underscores the importance of each nomination to the Supreme Court, and in particular the pending nomination of Elena Kagan. Already, many have raised questions regarding Kagan’s commitment to Second Amendment rights, citing her role in promoting gun control during her time in the Clinton White House and a memo she wrote as a law clerk for Justice Thurgood Marshall in which she stated that she was “not sympathetic” to a litigant’s claim that the District of Columbia had violated his right to bear arms.

While she stated during her confirmation hearings that the Supreme Court’s decision in Heller is “binding precedent,” this answer cannot give supporters of the Second Amendment much comfort. Such precedents may be “binding” on the lower courts, but the Supreme Court is always free to reverse its existing precedents. As a sitting Justice, Kagan and her colleagues would have the power to undo Heller. Accordingly, given Kagan’s record, each Senator must ask whether this risk is worth taking.

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My friend and National Review colleague Shannen Coffin has uncovered some fascinating information about Supreme Court nominee Elena Kagan’s work on partial-birth abortion when she worked for former President Bill Clinton. An excerpt:

There is no better example of this distortion of science than the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000. This language purported to come from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group. ACOG declared that the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” The Court relied on the ACOG statement as a key example of medical opinion supporting the abortion method.

In other words, what medical science has pronounced, let no court dare question. The problem is that the critical language of the ACOG statement was not drafted by scientists and doctors. Rather, it was inserted into ACOG’s policy statement at the suggestion of then-Clinton White House policy adviser Elena Kagan.

Years later, when President Bush signed a federal partial-birth-abortion ban (something President Clinton had vetoed), the ACOG official policy statement was front and center in the attack on the legislation. U.S. District Court Judge Richard Kopf, one of the three federal judges that issued orders enjoining the federal ban (later overturned by the Supreme Court), devoted more than 15 pages of his lengthy opinion to ACOG’s policy statement and the integrity of the process that led to it.

Like the Supreme Court majority in the prior dispute over the Nebraska ban, Judge Kopf asserted that the ACOG policy statement was entitled to judicial deference because it was the result of an inscrutable collaborative process among expert medical professionals. “Before and during the task force meeting,” he concluded, “neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics addressed” in the ACOG statement.

You should read the whole piece and his cautions against over-reading it. Shannen is quick to say he doesn’t think she has tampered with evidence or defrauded the courts, as some blogs have suggested. But it does seem fairly clear Kagan was up to no good and at least her actions are considerable indictment of liberal purity on the question of their deference to “sound science.” Indeed, this episode complements one ripped from recent headlines. President Obama has sermonized on the important role independent science must play in forming government policy. But his own administration outrageously doctored a report from the administration’s own hand-picked experts. They claimed their experts supported a ban on deepwater oil drilling, when in fact they did no such thing.

Lamentations about liberal bias in the media are often tedious—not because they are without merit, but because everyone knows the truth already. But it really bears mentioning that this is a particularly glaring example of how the mainstream media has a double standard. If a Republican Supreme Court nominee had done what Kagan appears to have done from a pro-life perspective, the New York Times and Washington Post would be flooding the zone with scandal-mode coverage. Instead, a quick check on Google News shows that this story is almost entirely a creature of conservative blogs. Once again, it looks like the legacy media is a few steps behind.

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Today’s Supreme Court decision in Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB) re-establishes a modest measure of accountability on our political institutions. The Court’s reminder comes at an opportune time.

The PCAOB was created by the 2002 Sarbanes-Oxley Act to implement and administer a Byzantine accounting regime for all public corporations. To that end, PCAOB was granted expansive rulemaking powers; civil and criminal enforcement authority; and, for good measure, its own taxing authority. Despite this awesome concentration of powers, PCAOB’s members are appointed not by the president but by the Securities Exchange Commission (SEC), an independent agency whose commissioners are removable by the president only for good cause (that is, willful misconduct). In turn, the SEC may remove PCAOB members only for cause.

Chief Justice Roberts’s opinion for the Court’s majority held that this “double for cause” removal arrangement undermines the president’s authority and is therefore unconstitutional. The Court upheld PCAOB’s appointment by the SEC.

What follows? The Court deemed the offending position “severable,” meaning that the remainder of Sarbanes-Oxley remains unaffected. Even so, the case could have very significant effects in the future. Justice Breyer’s dissent for the Court’s four liberal horsepersons helpfully lists a large number of federal agencies whose removal arrangements are now suspect. Breyer also advances the very novel proposition that SEC commissioners may be removable for political as well as “good cause” reasons.

It is no insult but rather a compliment to the chief justice to note that his majority opinion and its split-the-baby holding reflect the difficulty of holding a fractious majority together: what matters is that he did it. And whatever direct effects the decision may eventually produce, its signal value is unmistakable.

The Court impatiently brushed aside the government’s jurisdictional defenses and its attempts to immunize dubious schemes against constitutional challenges. Likewise, the Court disposed of the government’s argument that the president himself had no objections to the dilution of his powers. The executive’s affirmative embrace of irresponsibility and unaccountability, the Court observed, is not a defense; it is the constitutional problem. Nor was the majority impressed with appeals to the effect the PCAOB’s efficient functioning and need for expertise warranted the double removal arrangement. Wrote Chief Justice Roberts:

One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts.

All those in favor of nailing that sentence to the Oval Office door, say “aye.”

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Somehow I snuck onto the editorial page of the New York Times today. My piece argues that Elena Kagan is no friend of the presidency, as her supporters claim, but instead believes that Congress can significantly limit the executive’s powers. A close reading of her academic work shows that she believes that the Constitution gives the president no authority to remove subordinate officials—which is the primary tool used by chief executives to impose some semblance of rationality on the activities of our vast administrative state. If Kagan thinks that the Constitution’s grant of the “executive power” of the United States does not include the small power of firing wayward bureaucrats, she won’t think that it gives presidents powers of more importance, such as targeting, detaining, interrogating, or trying terrorists (without the permission of Congress, that is). For more, see here.

Yesterday the Supreme Court decided Comstock v. United States, the case I wrote about here. Relying on the “necessary and proper” clause of the Constitution, the Court upheld by a 7–2 margin the federal government’s authority to detain sexually dangerous prisoners after the conclusion of their sentences. The breadth of the Court’s opinion, written by Justice Breyer, makes it more likely that other exercises of federal power will be upheld, including the newly enacted mandate requiring individuals to purchase health insurance.

The framers of the Constitution split authority between the states and the federal government. Denying Congress a general power to legislate in all areas, they granted it a set of specific powers and reserved all remaining powers to the states. The limited nature of the federal government was by constitutional design a specific protection of individual liberty.

Included in the powers granted Congress was the power to enact all laws that are “necessary and proper” to perform its other constitutional powers. Of course, how one defines what is necessary and proper has a large bearing on how limited federal power is.

The scope of this authority was the major question in Comstock. Graydon Comstock, a detained inmate, argued that that the government’s power over him ceased at the end of his sentence. The Court disagreed, holding that the continued detention was necessary and proper to carrying out the purpose of Comstock’s original prison sentence.

In upholding the law, the Court adopted a lenient standard for reviewing laws under the necessary and proper clause. Under this standard, Congress may enact any laws that are rationally related to any of its specific powers. The Court suggested that the closeness of this relationship is a matter of congressional determination. Justice Thomas’s dissent, joined by Justice Scalia, argued that such an expansive view of the necessary and proper clause “comes perilously close” to granting Congress the general legislative authority that everyone, including the Court, agrees that the Constitution does not authorize.

So what does this have to do with the individual mandate? Supporters of the mandate argue that it can be upheld under Congress’s power to regulate interstate commerce, noting that the Court’s opinions have interpreted the necessary and proper clause to allow Congress to regulate activity that substantially affects interstate commerce.

In the past, the Court has refused to accept this reasoning when the law was too far removed from the actual regulation of interstate commerce. Opponents of the mandate argue that an individual’s nonactivity in the insurance market is too tangentially related to the activity of commerce to be a “necessary and proper” regulation. After yesterday’s ruling, this argument will be more difficult to maintain. If it is up to Congress to decide whether a piece of legislation has the required connection to an enumerated power, challenges to the mandate will almost certainly fail.

Of course, in future decisions, the Court may retreat from the broad view it announced in Comstock. The Court’s opinions setting the confines of federal power have been mercurial for several decades. In fact, four justices, including two who voted to uphold the detention law, specifically refused to embrace the majority opinion’s broad reasoning. But, until we see signs to the contrary, it appears that congressional self-restraint is the primary, or maybe the only, limit on federal power.

Ryan Lirette is a research associate at AEI.

In her first appearance on the Supreme Court bench, newly minted Justice Sonia Sotomayor made some comments that have renewed questions regarding her judicial philosophy.

During oral argument on the campaign-finance case Citizens United v. Federal Election Commission, she suggested that the Court should revisit more than 100 years of precedent, questioning whether corporations were properly considered “persons” entitled to rights under the Constitution. However, the reasoning behind this suggestion is questionable, given that it is based on the contention that judges created corporations as “persons” and thus can reverse that decision. This assertion is inaccurate as a matter of history and current practice. Corporations are chartered by state legislatures and are “creatures” of the legislative branch—not the judiciary. From the founding period, they have been considered artificial “persons,” a doctrine that has strong roots in the common law. Arbitrarily depriving them of their long-possessed rights through judicial decision making would constitute an improper intrusion on the authority of both the states and the legislative branch. Accordingly, it again raises the question whether Justice Sotomayor’s view of the judicial role is consistent with what was contemplated by the Constitution. Only time will tell.

Douglas Smith is an adjunct scholar at the American Enterprise Institute.

The Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have received
significant attention, with many arguing that they will revolutionize the standards for bringing civil lawsuits in the federal courts, making them much more stringent. In these decisions, the Supreme Court held that a plaintiff’s complaint must contain allegations that are “plausible” on their face, and that a mere possibility that a defendant might be liable is not enough to state a claim in federal court.

The attention these decisions have received has spurred Congress to act, but not in ways that will be productive for the legal system. Senator Arlen Specter has introduced legislation entitled “The Notice Pleading Restoration Act” that would “overrule” the Supreme Court’s decisions in Iqbal and Twombly, and replace the standards articulated by the Supreme Court.

Such legislation is problematic for several reasons. First, as a matter of core competency, it is the courts—not Congress—that is in the best position to determine pleading standards. In both Iqbal and Twombly, the Supreme Court relied on nearly a century of precedent interpreting the Federal Rules of Civil Procedure. Moreover, Twombly at least was the result of a solid consensus, with seven of the justices joining in a majority decision authored by former Justice Souter.

The proposed legislation is also bad policy. As the Supreme Court observed in its decisions, defendants
often face significant burdens if litigation progresses past the pleading stage, given the broad-ranging
discovery authorized under the Federal Rules. Accordingly, there is a need for stringent judicial
scrutiny to ensure that, before these burdens are imposed, plaintiffs can at least articulate a plausible
claim.

Finally, the proposed legislation seeks to utilize procedural rules as a vehicle for substantive outcomes.
Indeed, as many commentators have observed, it is only the most recent in a series of proposed measures
Congress has floated that are designed to make it easier for plaintiffs to prevail in civil lawsuits.
Congress should think twice before amending broadly applicable procedural rules to achieve such
results-oriented outcomes.

Douglas Smith is an adjunct scholar at the American Enterprise Institute.