Liberty for some more than others

Sharon Bailey

We are living in the year 2022, yet the Republican Party and the conservative majority of the Supreme Court of the United States (SCOTUS) seem to be on a mission to return America to the Civil War era, one decision at a time. It was simpler then; some even think of this historic period as great. There were no restrictions on rifled muskets and breech loaders. Women could not vote or choose not to carry a baby to term. Enslaved African Americans were property and therefore had no rights or protections.

Last week SCOTUS, divided along party lines, rendered decisions on New York’s concealed carry gun laws, Miranda violations and abortion rights. Justice Samuel Alito and Justice Clarence Thomas have long embraced an originalism approach to the Constitution. Originalists believe the original intent of the framers of the Constitution should guide their interpretation of the law and written opinions.

In the blink of a week, individual liberties for gun owners were expanded, individual liberties as they relate to law enforcement were weakened and individual liberties for women were revoked.

New York’s Sullivan Act, established in 1911, required a person to get a license to carry a firearm small enough for concealment in public. Justice Thomas wrote the 6-3 majority opinion stating that the “proper cause” requirement “violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.” This is arguably shortsighted, particularly in the wake of the Buffalo shootings and the Bipartisan Safer Communities Act recently signed by President Biden. Something is better than nothing. Expanding background checks for gun buyers between the ages of 18 to 21, increasing federal funding for mental health, and requiring more sellers to register as Federally Licensed Arms Dealers are steps in the right direction. Gun-free public places will be established but I am not optimistic. People were indignant and sometimes violent when asked to wear a mask in a business place. I shudder at the thought of seeing an increased number of individuals with holstered firearms at the coffee shop. Will a business owner be able to declare his place a gun-free zone? If so, and a customer refuses to comply, who will enforce it?

SCOTUS also ruled that the police cannot be sued for not giving a Miranda warning. This decision should give everyone pause. Every jurisdiction has its own regulations about what a person must be told when arrested or held in police custody. Now if a law enforcement officer does not read the Miranda rights to a person, that individual cannot sue the officer for not doing so. The Enforcement Act of 1871, also known as the “Ku Klux Klan Act,” was signed by President Ulysses Grant during Reconstruction. It was established to protect the Civil Rights of newly freed African Americans from the terrors of the first Klan era.

Justice Samuel Alito writes in the majority opinion: “Miranda did not hold that a violation of the rules it established necessarily constitute a Fifth Amendment violation, and it is difficult to see how it could have held otherwise. For one thing, it is easy to imagine many situations in which an un-Mirandized suspect in custody may make self-incriminating statements without any hint of compulsion. In addition, the warnings that the Court required included components, such as notification of the right to have retained or appointed counsel present during questioning, that do not concern self-incrimination per se but are instead plainly designed to safeguard that right. And the same is true of Miranda’s detailed rules about the waiver of the right to remain silent and the right to an attorney."

Knowing your rights has never been more important than it is now.

The right to an abortion is no longer protected under federal law but apparently the right to be misogynist is OK. Justice Alito wrote the opinion for this one too. There is no need to quote it. Much of it was leaked already. There is no legislative path to correct this one, only voting will do.

The Republicans are partying like it's 1785. Meanwhile the fate of American society hangs in the balance.

Sharon Bailey resides in Niagara Falls. Contact her at sbailey.opinion@gmail.com.

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