June 27, 2022

Diana Ross and the Supremes were one of the biggest Motown musical groups in the 1960s. By 1970 they went their separate ways, but this past week, their informal namesakes scored a mega-hit. Not singing catchy pop tunes, but by dancing in their black robes, singing glory and praise to the United States Constitution, making it great again.

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I speak of the US Supreme Court, finding their constitutional voices on two major issues that have polarized and divided Americans for decades. SCOTUS was not created to make law or decide controversial social or policy issues. In a constitutional republic, those issues are decided by the people, or their elected representatives, not by unelected, lifetime appointed judges.

Instead, SCOTUS’s role is to determine whether laws passed by the legislative branch or administrative decisions emanating from the executive branch are constitutional. From the SCOTUS website,

The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.

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While Diana Ross and her Supremes sang, “Stop in the name of love”, Clarence Thomas and his Supremes did a remake, “Stop in the name of law”, specifically the US Constitution. Two big decisions in two days. Was this “The Storm” that President Trump once predicted? Or just a “boom-boom” end to a week where we saw another two booms — the President falling off his bicycle then showing off his cue card telling him, as one would a young distractible child, where to sit, as in “YOU take YOUR seat” and when to get up and leave as in “YOU depart”.

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The first boom decision was to affirm that Americans have a right to carry firearms in public for self-defense. Why is this controversial? The Second Amendment to the Constitution states clearly, “The right of the people to keep and bear arms, shall not be infringed.”

This decision went beyond the Heller case of 2008, where SCOTUS affirmed the right to possess a gun for self-defense in the home. Now Americans can defend themselves outside the home as well, a necessary clarification as the Second Amendment did not add specific locations to their “keep and bear arms” proclamation, as many people need to protect themselves outside of their homes too.

“Arms” does not refer only to muskets and cannons, as the New York Governor and US President believe, but modern-day versions of these 250-year-old “arms”. There is a commonsense element here that “arms” don’t include thermonuclear bombs, machine guns, or ballistic missiles which ordinary Americans cannot and should not possess, but instead the “arms” of the day including handguns and even scary looking rifles.

If we followed the logic of the musket and cannon arguers, the First Amendment protections of free speech should not protect radio, television, internet, or social media as these forms of speech did not exist when the Bill of Rights was drafted, just as Glocks and AR-15s were not on the minds of the framers at that time either. In their wisdom, they simply used the term “arms” just as the First Amendment used vague terms “speech” and “press”, allowing for future variations and inventions.

The second boom ruling overturned the controversial Roe v. Wade decision from 1973 which legalized abortion, although with some limits. It took almost 50 years for SCOTUS to get the Constitution straight. As Diana Ross and her Supremes sang, “You can’t hurry love”, SCOTUS has been singing, since 1973, a remake called, “You can’t hurry law.”