As you know by now, the Supreme Court struck down D.C.’s ridiculous handgun ban & clarified what shouldn’t have needed clarification in the first place. Op-ed columnists are laying fingers to keys all over the place, doin’ their job. Spotted a pair on the Washington Post website that say a lot in their contrasts.
First, Eugene Robinson:
I’d like to be able to thunder about the injustice committed by an activist, archconservative Supreme Court that seeks to return our jurisprudence to the 18th century. I will, almost certainly, about some future outrage. But this time, I can’t.
The big problem, for me, is the clarity of the Second Amendment’s guarantee of the “right of the people to keep and bear arms.” The traditional argument in favor of gun control has been that this is a collective right, accorded to state militias. This has always struck me as a real stretch, if not a total dodge.
I’ve never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written — and give it such pride of place — the No. 2 position, right behind such bedrock freedoms as speech and religion.
Eugene, being generally in favor of “gun control”, worries about the impact of the ruling. Yet, he’s intellectually honest enough to admit that just because he disagrees with it doesn’t make it wrong. He even suggests to anti-2nd-amendment types that if they seriously think it is outdated then they should attempt a constitutional amendment, abandoning their previous tactic of just lying about the meaning. I never thought I’d see a successful public avoidance of screaming “judicial activism!” at a decision simply because it doesn’t go your way ANYWHERE, let alone in the pages of a mainstream newspaper, props to Eugene for maintaining seriousness on this issue.
E.J. Dionne, however…
The political response to this decision from many liberals and Democrats was relief that the ruling still permits gun regulation, and quiet satisfaction that it will minimize the chances of the gun issue hurting Barack Obama in the presidential campaign. Some will rationalize this view by pointing to maverick liberal constitutional scholars who see a broad right to bear arms in the Second Amendment.
But these pragmatic judgments underestimate how radical this decision is in light of the operating precedents of the past 69 years. The United States and its gun owners have done perfectly well since 1939, when an earlier Supreme Court interpreted the Second Amendment as implying a collective right to bear arms, but not an individual right.
Here is what the Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Yesterday’s narrow majority spent the first 54 pages of its decision, written by Scalia, trying to show that even though the Framers inserted 13 important words in front of the assertion of a right to bear arms, those words were essentially meaningless. Does that reflect an honest attempt to determine the “original” intention of the Constitution’s authors?
In fact, it was the court’s four more liberal justices who favored judicial modesty, deference to democratic decisions, empowerment of local officials and care in examining the Constitution’s actual text and the history behind it. Indeed, the same conservative majority ran roughshod over the work of an elected branch of government in its ruling yesterday on campaign finance law. (emphasis mine)
The slightest glance at what the founders were actually saying at the time, combined with how the original states themselves saw it and an honest note of how the two parts of that sentence modulate each other, show the “what about the first part!?!?” argument for gun control to be bullshit, plain and simple. But let’s humor E.J. for a moment: if the 2nd Amendment, contrary to Eugene Robinson’s admission, did solely refer to a collective right, and only for purpose of organizing a militia, what is the militia?
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.(b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Gee, if the militia is that broadly encompassing, then doesn’t that contradict the supposed restrictive nature of militias as portrayed by gun control advocates anyway? The end result would still be private gun ownership, because the militia is defined such that citizens don’t have to be part of the National Guard to be included.
As for his throwaway remark about the right-wing of the court & “judicial restraint”, he makes the grave error of interpreting the Court based on what the justices say when not on the bench and not what they do when they are. The “conservative” wing only follows a policy of deference to legislators when those legislators & the plurality egging them on are attempting to fulfill conservative goals, and the opposite is true with regard to the rest of the Court & what are seen as “liberal” goals. This pattern holds so well that cases that don’t are anomalies like the Kelo v. New London ruling, where the right-wing opposed interpreting a naked big business favor land grab as a public use & the “liberals” supported it.
EJ’s point about deference is a curious one anyway, since if followed rigorously there’d be no point to the Supreme Court at all — quickest way to defer is to just not hear anything. Ideally, rather than going by these political constructs they’d simply do their jobs as described & go by intent, precedent & majoritarian idealism be damned. But anyone with even half a brain knows the Court is politicized and has been for a long time, so instead we just get a more haughty version of partisan sniping, & the portrayal of contests for who will next make judicial appointments as I’d imagine high-stakes poker would look in the deepest circle of hell as depicted in a modern-day Dante’s Inferno.