Editorial-Opinion March 2016

The loss of Supreme Court Justice Antonin Scalia.

Steve Burch | March 10, 2016

The sudden passing of U.S. Supreme Court Justice Antonin Scalia was for me a gut punch. It is worth noting that he was on a hunting trip in Texas at the time of his passing.

When fully staffed, there are nine Justices on the court. This number tends to avoid a tie on weighty questions. Apart from the simple numbers, there is a contest of logic and legal acumen that pervades the court as it draws the lines that govern us.

Chief among these is the battle between justices who believe in “original intent,” that the Constitution means what it says and guides us. The other view is from those who believe the Constitution should be viewed as what is termed “a living document” that should be modified to fit the times.

Scalia was the leader of those who read the Constitution literally. I stand with Scalia. With his passing, we have lost a foundational bedrock on which so many of us have relied.

It is worth noting that the Second Amendment was upheld by the Supreme Court in a 5-4 ruling in 2010. Scalia was among the five justices who believed the Right to Bear Arms was protected by the Constitution.

With the death of Justice Scalia, it falls to President Obama to nominate a Justice to fill his seat on the bench. The irony of this situation is overwhelming.

The cases the Supreme Court heard that found for individual rights over the government came from Chicago. There were two cases that were combined and heard by the court.

The first was McDonald vs. Chicago. Otis McDonald bought a house in a Chicago neighborhood in 1971. He was a hunter. He had shotguns. Time passed, and he retired. The quality of his neighborhood deteriorated. He wanted a handgun to protect himself and his property. But he couldn’t, legally, because the city of Chicago had done two things. First, they passed an ordinance that required that any handgun in the city had to be registered. Then, later, they decided to refuse to issue any registrations. The result was that neither Otis, nor anyone else, could legally acquire a firearm in Chicago. The protection of the Second Amendment was gutted in Chicago. Otis filed suit, and in 2010 the Supreme court heard the case. If the court had sided with the City of Chicago, there would be no Right to Bear Arms.

By the narrowest of margins, the court sided against the government and with individual rights.

By the narrowest of margins.

For longer than my lifetime, Chicago has been run by Democrats. Since 1982, they had not issued a permit to have a registered gun by an individual in Chicago… until Otis sued them. Scalia agreed with Otis. Chicago had been unconstitutional for 28 years.

Now, Obama wants to name a Scalia replacement. Obama is from Chicago. He lived under that unconstitutional environment. He is a Harvard trained constitutional lawyer. He could have sued the city on behalf of Otis, but he did not. He would not. He believes there is no constitutionally protected right to keep and bear arms. The same can be said for every Supreme Court candidate nominated by a democratic president since 1970.

Clearly, replacing the Otis vs. Chicago decision with a “living document” view held by the current president and the democratic party would secure the flip. The gun rights fight would move from one of a protected individual freedom to a privileged perk granted to a person by the government. An Obama appointee would deny Otis his right to protection. An Obama justice will swing the vote from 5-4 supporting Otis, to 5-4 supporting the government’s power to deny to legal citizens that which it cannot keep from criminals. Otis did not want to be a powerless victim. Chicago thought it best if Otis were defenseless and reliant only on the government.

The same liberal senators who now say Republicans must “do their job” and support an Obama replacement said President Bush should be not allowed to nominate a Supreme Court justice. Then Senator Barack Obama said in 2006 he supported the Democratic-led filibuster to stop Justice Samuel Alito from making it to the Supreme Court.

At risk now is the legal foundation on which the country stands. What is at risk is the notion that the government exists to serve the people, and that the government’s power is delineated and limited. Justice Antonin Scalia was an unmovable champion of this point of view. We all lived content and safe, so long as he was there to shepherd us through. Now he is gone.

Now I feel less safe.

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