Web Sage Guns and religion
Legal theories in 1st and 2nd Amendment cases shed light on ‘judicial activism’ vs. restraint


A recent Supreme Court case involving gun rights raises curious parallels – and incongruities – with several religious liberty cases that touch on the same constitutional issues regarding state’s rights, individual rights and the powers of the federal government.

gunIn the case of McDonald v. Chicago, the Supreme Court declared that the Second Amendment protects an individual right to bear arms; and this fundamental right applies in all 50 states and their various municipalities. The Second Amendment previously applied only to the federal government – restricting Congress from passing laws infringing on the right to bear arms. In McDonald, the Court ruled to “incorporate” the Second Amendment, meaning the amendment now applies to all state, municipal and federal jurisdictions. (See more on the decision here.)

The issue of incorporation was also raised in the context of the First Amendment’s Establishment Clause – “Congress shall make no law respecting an establishment of religion.” In Elk Grove Unified School District v. Newdow, Justice Clarence Thomas opined that the First Amendment’s Establishment Clause should not be incorporated; which, in contrast to the conservative justices’ views on gun rights, means that individual states would be free to legislate on certain matters respecting religion, such as the placement of religious symbols in public places, prayers at high school graduations, and the content of school curriculum.

Thomas “The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause,” Thomas wrote in Newdow.

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Thomas’s judicial philosophy and the issue of judicial activism vs. restraint are further discussed in the University of Massachusetts Press book, Religious Liberty in America: The First Amendment in Historical and Contemporary Perspective by Bruce T. Murray.

Religious Liberty in America was selected by Choice – a publication of the Association of College and Research Libraries – as an “Outstanding Academic Book.”

“Murray explores numerous cases in public law, especially as they illustrate the changing landscape of interpretations of the First Amendment. He looks at faith-based initiatives (Bush's legislation), issues involving religious liberty in public schools, and other topics that illustrate that the ‘wall of separation’ has been rather porous. Murray is very effective in showing how terms such as ‘liberal,’ ‘conservative,’ judicial ‘activism,’ and judicial ‘restraint’ are actually moving and evolving targets.”
G.H. Shriver, Professor Emeritus, Georgia Southern University (from the October, 2008 issue of Choice)

Religious Liberty in America is available at libraries throughout North America, and it may be purchased from the University of Massachusetts Press.

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