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


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

gunThe Supreme Court recently heard oral arguments in the case of McDonald v. Chicago, which concerns an individual’s right to bear arms vs. the right of states and municipalities to restrict possession of certain weapons. The outcome of the case could have far-reaching consequences, if, among other reasons, the Court decides to “incorporate” the Second Amendment as an individual right to bear arms. “Incorporation,” in this case, would apply the Second Amendment against the states, barring them from infringing on the right to bear arms and making federal courts the guardians of gun-liberty.

The issue of incorporation was recently 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 is available at numerous university libraries, and it may be purchased from the University of Massachusetts Press.

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)

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