rainbowbob
Member
This infuriating article appeared in my local rag on Saturday. Following is my rebuttal sent to the Seattle Times in the hope that they can risk printing an opinion other than their own. I won't hold my breath.
My rebuttal:
The Court's Unoriginal Gun Ruling
WASHINGTON — In knocking down the District of Columbia's 32-year ban on handgun possession, the conservatives on the U.S. Supreme Court have shown again their willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political right.
The court's five most conservative members have demonstrated that for all of Justice Antonin Scalia's talk about "originalism" as a coherent constitutional doctrine, the judicial right regularly succumbs to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.
Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case.
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 last 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."
Thursday'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 framers?
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.
It was telling that while Scalia argued the Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home" — note that the Second Amendment says nothing about "self-defense in the home" — it was Justice John Paul Stevens in dissent who called for judicial restraint. He asked his conservative colleagues where they were able to find an expansive and absolute right for gun possession.
The court majority, Stevens said, "would have us believe that over 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons." But such evidence, Stevens insisted, "is nowhere to be found" in the decision. Justice Stephen Breyer also defended the rights of democratically elected local officials in a separate dissent, saying the D.C. ban was "a permissible legislative response to a serious, indeed life-threatening, problem."
In his intemperate dissent in the court's recent Guantánamo decision, Scalia said the defense of constitutional rights embodied in that ruling meant it "will almost certainly cause more Americans to be killed." That consideration apparently does not apply to a law whose precise purpose was to reduce the number of murders in the District of Columbia.
Advocates of reasonable gun regulations found some silver linings in this decision, and it's true that a court ruling the other way could have strengthened the hand of political opponents of gun control by energizing their movement.
While criticizing the court majority, Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, argued that the majority decision at least "permits restrictions on place, on types of weapons, on conditions of sale and on carrying concealed weapons."
The decision, he said in an interview, will make gun control less of a "wedge issue" by refuting the claim of gun-control opponents that any restrictions on weapons lead down "a slippery slope to gun confiscation."
I hope Helmke is right. But I also hope this decision opens people's eyes to the fact that judicial activism is now a habit of the right, not the left, and that "originalism" is too often a sophisticated cover for ideological decision-making by conservative judges.
E.J. Dionne's column appears regularly on editorial pages of The Times.
My rebuttal:
E.J. Dionne’s article “The Court’s Unoriginal Gun Ruling” [Seattle Times, June 28] presents a number of fallacies that are so egregious they must be rebutted.
The Supreme Court’s recent decision in D.C. v Heller to affirm the Second Amendment as a protection of the inalienable and individual right to keep and bear arms for personal protection is a landmark case that should be celebrated by both conservatives and liberals. In fact, this decision has little to do with factional or fractional politics, and everything to do with civil rights.
Any serious reading of the founder’s own words concerning the individual rights of law-abiding Americans to arm themselves for the purpose of defense, including defense of self and property, will lead to no other conclusion than what the majority opinion reflects.
Dionne accuses the author of the majority opinion, Justice Scalia, of inconsistency because he fails to support the gun control decisions of elected officials. What nonsense! Interpreting the Bill of Rights was never meant to be left up to the whims of local politicians. More importantly, the Bill of Rights does not enumerate rights granted by the government at all. Instead, it describes those rights considered to have existed prior to, and protected by, the Constitution. These rights are truly inalienable, meaning the government did not grant them – and the government can not take them away.
Dionne then goes on to suggest that careful attention was not paid to the precise words of the Constitution in this case. Did Dionne even read the majority opinion written by Justice Scalia?
Scalia points out that the Second Amendment is divided into two parts. First, the prefatory clause: “A well regulated Militia, being necessary to the security of a free State…” Second, its operative clause: “…the right of the people to keep and bear arms, shall not be infringed.” The prefatory clause does not limit the operative clause grammatically, but instead announces a purpose.
Any school child could tell Dionne (and the dissenting justices) that the operative clause is that part of a compound sentence that can stand alone. Consider this analogous example:
“A well educated electorate, being necessary to the security of a free state, the right of the people to own and read books shall not be infringed.”
Obviously, this would not exclude those other than the “electorate” from owning and reading books, but would create the possibility for a “well-educated electorate” to exist.
The militia – then and now – consists of able-bodied citizens of a certain age that may be called upon in times of national emergency to defend their communities, cities, states and country. As Casey Stengel said: “You could look it up.” The Second Amendment was designed to ensure that citizen volunteers could be mustered with their personal arms and the knowledge and will to use them. It further allows for citizens to protect themselves, their families, and their property against criminal or political tyranny.
In addition to the Second Amendment, the Constitution and the Bill of Rights use the phrase “right of the people” in three other instances; the First, Fourth, and Ninth Amendments. All three of these instances unambiguously refer to individual rights. The framers did not mistakenly use “the right of the people” in the Second Amendment to mean anything other than what it says.
Dionne apparently believes the decision will undermine Washington D.C’s decades old gun ban, “...a law whose precise purpose was to reduce the number of murders in the District of Columbia.” While that may have been the purpose of the presumably well-meaning social architects who crafted this unconstitutional law, it is an experiment that can only be described as an unqualified failure. Violent crime in the Capitol, as well as other cities such as Chicago with similar prohibitions, is among the highest in the nation. Other major cities with more liberal policies (in the true sense of the word) allowing for concealed carry by responsible citizens have seen significant reductions in violent crime during the same period of time.
These attempts to reduce criminal violence by undermining one of our most fundamental rights should finally and forever be assigned to the dust-bin of noble – but failed – experiments. If gun prohibition had produced significant reductions in violent crime anywhere, surely Dionne and others of like-mind could point out the numerous successes. The fact that they cannot do so after decades of trying should end the discussion.
