Well, no, it's not an ideologically driven decision.
The decision was inevitable seeing the right to bear arms exists in the Federal Constitution and case law holds that the Federal Constitution binds the States.
That second proposition, that the Federal Constitution binds the States, is not obvious. Why should the Federal Constitution bind, say, Utah? Utah has its own constitution. Unlike Canada, whose provinces and federal government are created by one document (the Constitution Act, 1867), American States exist independently of the US government. Each American State has its own constitution.
Indeed, it was not until the last hundred years or so that the Federal Constitution was taken to bind States and that application of the Federal Constitution was not complete until fairly recently (the precise date is arguable but probably the early mid 1960s).
Now, assume the US Supreme Court really is run by right wingers planning to undo various decisions of the last 60 years -- in that case McDonald was an amazingly easy opportunity overlooked.
All US SC had to do was uphold local gun restrictions saying "the application of the Federal Constitution to the States is limited/ or in error/ or whatever".
What would appear to be a "win" for the left would be a triumph for the right.
All those questionable decisions like Roe v Wade would vanish. They wouldn't have to be overruled; they would just be inapplicable because their theoretical basis, the Federal Constitution, would not apply. Yes, the Federal government could not have an abortion law that did not comply with Roe v Wade, but any State could -- and the States were the ones with abortion laws.
Specifically, States could have abortion laws, redraft criminal justice rights, apply discriminatory practices (to some degree -- the Federal Constitution does grant rights to citizens that the states cannot trench on) and do anything they could within their own constitutions.
The US SC, in a single decision, could have stepped away from all manner of issues leaving them to be governed solely by the States.
The point is, the McDonald decision today was unexceptional -- had it gone the other way it could have been epoch making.
6 comments:
Unexceptional only in that it reinforced interpretations of a part of the Constitution that many people disagree with.
That aside, it's a good point.
In a very similar example here, recently, the BC Court of Appeal found that the InSite (the safe injection site) was allowed to stay open despite the federal government's attempt to shut it down and its appeal in the case.
That seems like an apparent victory for the "left" because InSite stays open. But what it really means is that a court has helped weaken strong federalism. The court held that the province's jurisdiction over health overrode the federal jurisdiction over crime. Specifically that "found that "The supervision of drug injection comes within the province's powers over health under Section 92 of the Constitution Act, 1867, and the province has exercised those powers in a number of statutes related to the operation of InSite."
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What is worse is that they concluded simply "the provincial and federal exercises of power overlap" which - and correct me if I'm wrong - would imply that federal paramountcy should apply.
Even worse about the decision is that the province wasn't even involved. InSite had a federally granted temporary exemption from the Criminal Code drug laws. The temporary exemption was renewed but then the Conservatives denied a further renewal. InSite sought, not provincial legislation, but permanent exemption directly from the court.
Progressives cheered the decision because a very good organization and operation was allowed to stay open. But as much as I would want InSite to stay in operation for the lives it saves, I am very troubled by the precedent set by this decision... as should all progressives.
I'm betting that the Obama-nation is pretty unhappy about that nagging constitution right now.
Interesting,
I hadn't thought of the implications for Roe vs. Wade, but I suppose that's because I agree with the Atlantic's Jeffrey Rosen on the subject. (http://www.theatlantic.com/magazine/archive/2006/06/the-day-after-roe/4882/) Roe vs. Wade was obviously a victory for the pro-choice movement, but it's also a political asset for pro-life politicians. (Read the article if you're interested, it's a little off topic for this thread.)
The issue really was a question of whether or not the US federal constitution had any meaning for day to day life. I can't imagine many Americans reallly want a mere collection of sovereign states to replace their current federal system.
Ted Betts,
You make an excellent point, but why should "progressives" be terribly concerned about the in-site decision? There's nothing magical that says that a federal power will be more progressive than a provincial one. Indeed, I'd expect that a federal power would be less likely to be progressive. Since a federal governments must appeal to a much larger electorate, it seems that their actions would be more likely to appeal to the average of the political views across the country. In other words, they have to appeal to the centre. The Reform Party won an election. The NDP has never one a federal election, but they have won several provincial ones.
Issachar:
Certainly there is no certainty that a federal government will be more progressive, but provincial governments are certainly no more likely to be progressive. More importantly, think of all of the federal policies and programs that are possibly at risk because of the BC Court of Appeal decision.
But the decision goes beyond that and says that a provincial jurisdiction overrides a clear federal jurisdiction.
I prefer a strong central government and it seems clear to me that this weakens the intentions of the Constitution in favour of the provinces.
Oh, I agree. It seems rather clear to me at least that the federal government should have jurisdiction over legalizing narcotics.
I wouldn't say provincial governments are more likely to be progressive, I'd say they're more likely to veer away from the centre.
Invading provincial or federal jurisdiction seems to be an equal opportunity game though. After all, if health care is an area of provincial jurisdiction how is the entire Canada Health Act not a case of massive jurisdictional interference?
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