Decisions make good, bad law
In the United States today we no longer enjoy the rule of law but instead the rule of lawyers — robed lawyers with the exalted title ”justice“ — but still unelected lawyers enacting their own policy preferences.
Before their commonsense decision in the Second Amendment case, a different complement of justices (Justice Anthony Kennedy siding with the liberals) demonstrated what a flimsy hold the words of the Constitution have on our jurisprudence.
In Louisiana vs. Kennedy, the majority held unconstitutional a statute that permitted the death penalty for rape of a child under the age of 12. Explaining why the statute violated the constitutional prohibition against ”cruel and unusual“ punishment, Kennedy declared that, ”Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule.“ Will someone please ask Kennedy and his liberal fellows this question: If it's all a matter of ”evolving standards,“ then why pretend to abide by a written document at all? And whose evolving standards?
Justice Antonin Scalia's majority opinion in District of Columbia vs. Heller, by contrast, is all about — guess what — the intent of the founders. The distraction of the militia clause in debates over the amendment's meaning is now eliminated.
As the court was careful to clarify, the existence of an individual right to keep and bear arms does not mean that the right is absolute. Time, place, and manner restrictions have always been recognized even with respect to sacred First Amendment rights. But the hurdle states will have to clear to regulate gun ownership by law-abiding citizens just got inestimably higher.
Constitutionally on target
I would like to be able to thunder about the injustice committed by an activist, arch-conservative 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 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 the No. 2 position, right behind such bedrock freedoms as speech and religion. And even if the Second Amendment were meant to refer to state militias, where did the founders intend for the weapons to be stored? In the homes of the volunteers, is my guess.
More broadly, I've always had trouble believing that a bunch of radicals who had just overthrown their British oppressors would tolerate any arrangement in which government had a monopoly on the instruments of deadly force. I don't mean to sound like some kind of backwoods survivalist, but I think the revolutionaries who founded this nation believed in guns. Did they believe in assault weapons? Of course not. Would they be appalled that drug gangs are often better armed than the police? Of course they would. But I also believe that if the Constitution says yes, you can't just blithely pretend it says no. Thursday's decision appears to leave room for laws that place some restrictions on gun ownership but still observe the Second Amendment's guarantee. If not, then the way to fix the Constitution is to amend it — not ignore it.