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April 21, 2014

Andrew Silow-Carroll: Passoverkill? Suggestions to make next year's seders even more culturally sensitive

Sara Israelsen Hartley: Seeking the Divine: An ancient connection in a new context

Christine M. Flowers: Priest's execution in Syria should be call to action

Courtnie Erickson: How to help kids accept the poor decisions of others

Lizette Borreli: A Glass Of Milk A Day Keeps Knee Arthritis At Bay

Lizette Borreli: 5 Health Conditions Your Breath Knows Before You Do

The Kosher Gourmet by Betty Rosbottom Coconut Walnut Bars' golden brown morsels are a beautifully balanced delectable delight

April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review July 8, 2010 / 26 Tamuz 5770

Thomas' Principled Jurisprudence in Arms Case

By Michael Barone




http://www.JewishWorldReview.com | In 1978, Justice Lewis Powell wrote an opinion in the Bakke case asserting that the need for diversity could justify racial preferences in university admissions. No other justice joined this opinion, but because the other justices were split 4-4, Powell's opinion decided the case, and in time his argument has been embraced by a majority of the court. A regrettable result, in my view, but a consequential one.

Last month, Justice Clarence Thomas delivered a similarly decisive opinion in McDonald v. Chicago, the case holding that the Second Amendment's right to keep and bear arms, recognized by the court in 2008 as applying to the federal government, also limits the power of the states.

The other eight justices argued whether that right was fundamental enough to apply to the states under the Fourteenth Amendment's guarantee of "due process of law." Since the 1940s, the justices have been arguing whether various federal rights were fundamental enough to apply to the states under this clause. In McDonald, four justices argued that the Second Amendment was fundamental to the states and four disagreed.

Justice Thomas, writing separately, declined to apply the due process clause. Rather he argued that the Second Amendment applied to the states because the right to keep and bear arms under the Fourteenth Amendment's command that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Legal scholars have generally considered that the Supreme Court's decision in 1873 in The Slaughterhouse Cases rendered the privileges and immunities clause a nullity. Thomas, who has regularly declined to follow precedent he considers incorrect, argued persuasively that the 1873 case was incorrectly decided.

Certainly it is not a precedent that is an ornament of the law. As Thomas pointed out, the Fourteenth Amendment was passed in 1868 to guarantee the rights of the newly freed slaves. The Slaughterhouse Cases undercut that purpose and made possible the violent subjugation of American blacks that is one of the most regrettable episodes of our history.

And, as Thomas argues in vivid detail, one of the key rights black Americans were deprived of was the right to keep and bear arms. The wisdom of the Founders' inclusion of the Second Amendment in the Bill of Rights is clear from the efforts black Americans made to exercise that right and from the efforts of white racists to deprive them of it.

For many years, "the educated class" has denigrated the Second Amendment and argued that it was outmoded and only concerned national guards. But legal scholars, liberal as well as conservative, demonstrated that the Framers fully intended to protect citizens' rights to arm and protect themselves.

At the same time, empirical evidence has made it clear that gun control laws infringing that right left law-abiding citizens at the mercy of criminals. And empirical evidence in the 40 states that now allow law-abiding citizen to carry concealed weapons has demonstrated that they could be trusted to exercise that right responsibly.

The only alarming thing about the McDonald decision was that it was decided by only a 5-4 margin and could conceivably be reversed later by the court. As a practical matter, it allows reasonable restrictions on firearms while eliminating laws that attempt, futilely, to ban them altogether.

Thomas' colleagues, like many legal scholars, were evidently unwilling to join him in overturning The Slaughterhouse Cases and based their decisions on the privileges and immunities clause, presumably because that might undercut other precedents.

But Thomas, in my view, has the better logical argument. "The notion," he writes, "that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty or property could define the substance of those rights strains credulity for even the most casual user of words."

As he points out, the Court has used the due process clause to find rights — notably the right to an abortion — that are not specified in the Constitution, while at the same time four current justices have also used it to argue that a right specified in the Second Amendment does not apply to the states.

Thomas' concurring opinion points the way to a more principled jurisprudence, based more clearly on the text of the Constitution, while at the same time making the strongest of possible cases that Second Amendment rights are fundamental.

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JWR contributor Michael Barone is senior political analyst for The Washington Examiner.




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