This post originally appeared at The Nation. Reproduced here for fair use and discussion purposes. My comments in bold.
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Much like when they try to tell you about Christianity, the Left seldom gets it right when it comes to the Constitution.
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In common with the other big rightward swerves by the Roberts Court, the 2008 ruling in District of Columbia v. Heller was an aggressive exercise in mendacity. ("Untruthfulness.")----------------------------
Much like when they try to tell you about Christianity, the Left seldom gets it right when it comes to the Constitution.
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By upending the well-established meaning of the Second Amendment, the Court made the country less safe and less free. It did this under the guise of a neutral and principled “originalism” that looks to the text as it was first understood back in 1791 by the amendment’s drafters and their contemporaries. (So the Court wanted to put the meaning of the 2nd Amendment back to its original meaning? And that is bad... how?)
Heller’s 5–4 majority decision, written by Justice Antonin Scalia and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito, was less in sync with the founding generation than with the top priority of a powerful interest group closely aligned with the Republican right. (If the ruling is out of sync with the Founders, maybe we should find out what the Founders said.
“Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!” Benjamin Franklin
“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions.” – Debates of the Massachusetts Convention of February 6, 1788; Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 1788 (Pierce & Hale, eds., Boston, 1850) Samuel Adams
“A free people ought not only to be armed, but disciplined; to which end a uniform and well-digested plan is requisite; and their safety and interest require that they should promote such manufactories as tend to render them independent on others for essential, particularly for military, supplies.” – Speech in the United States Congress, January 8, 1790; George Washington: A Collection, compiled and edited by W.B. Allen (Indianapolis: Liberty Fund, 1988), Chapter 11 George Washington
“[W]hat country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.” – Letter to William Stephens Smith, November 13, 1787;The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5) Vol. 5 Thomas Jefferson
“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.” – James Madison, Federalist No. 46, The Influence of the State and Federal Governments Compared, New York Packet, January 29, 1788; The Federalist (The Gideon Edition), (1818), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001) James Madison
Hmm. It's sounds like the author is the one who is out of sync with the Founders.)
The National Rifle Association had been waging an intense 30-year campaign to secure an individual’s constitutional right to keep and bear arms by winning over members of the public, high-level politicians and, ultimately, the Supreme Court. Mission, to an alarming degree, accomplished.
The decision declared, for the first time, that the Second Amendment protects an individual right to a gun, at least for self-defense in the home. It invalidated key parts of the District of Columbia’s unusually strict handgun ban, which prohibited the possession of nearly all handguns in the violence-prone city and required that firearms be stored unloaded and disassembled or bound with a trigger lock.
In the process, the conservative justices engaged in an unsubtle brand of outcome-oriented judicial activism and “living constitutionalism” that they claim to abhor — an irony noted by a host of devoted Supreme Court watchers across the ideological spectrum. Richard Posner, the prominent Reagan-appointed federal appellate judge and prolific commentator on legal and economic issues, derided Scalia’s flawed approach as “faux originalism” and a “snow job.”
To grasp the audacity of what Scalia & Co. pulled off, turn to the Second Amendment’s text: “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.” To find in that wording an individual right to possess a firearm untethered to any militia purpose, the majority performed an epic feat of jurisprudential magic: (This is the central misunderstanding/misrepresentation being promulgated by the author and by leftists in general. The 2nd Amendment, like the whole of the Constitution, does not grant any rights. None. The 9th amendment makes this crystal clear: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The purpose of the Constitution is to define, limit, and empower government in certain specific areas. It does not speak to the powers of the people, only the powers of the government it creates.)
It made the pesky initial clause about the necessity of a “well regulated Militia” disappear. Poof! Gone. Scalia treated the clause as merely “prefatory” and having no real operative effect — a view at odds with history, the fundamental rules of constitutional interpretation and the settled legal consensus for many decades. (If the "fundamental legal consensus" is indeed this interpretation, then it is good the Supreme court changed it.)
“The Second Amendment was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states,” then-Justice John Paul Stevens correctly noted in his minority opinion, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. (This may be true, but the statement relies on an incorrect definition of "militia." We again appeal to the Founders to tell us what they meant by "militia:"
The decision declared, for the first time, that the Second Amendment protects an individual right to a gun, at least for self-defense in the home. It invalidated key parts of the District of Columbia’s unusually strict handgun ban, which prohibited the possession of nearly all handguns in the violence-prone city and required that firearms be stored unloaded and disassembled or bound with a trigger lock.
In the process, the conservative justices engaged in an unsubtle brand of outcome-oriented judicial activism and “living constitutionalism” that they claim to abhor — an irony noted by a host of devoted Supreme Court watchers across the ideological spectrum. Richard Posner, the prominent Reagan-appointed federal appellate judge and prolific commentator on legal and economic issues, derided Scalia’s flawed approach as “faux originalism” and a “snow job.”
To grasp the audacity of what Scalia & Co. pulled off, turn to the Second Amendment’s text: “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.” To find in that wording an individual right to possess a firearm untethered to any militia purpose, the majority performed an epic feat of jurisprudential magic: (This is the central misunderstanding/misrepresentation being promulgated by the author and by leftists in general. The 2nd Amendment, like the whole of the Constitution, does not grant any rights. None. The 9th amendment makes this crystal clear: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The purpose of the Constitution is to define, limit, and empower government in certain specific areas. It does not speak to the powers of the people, only the powers of the government it creates.)
It made the pesky initial clause about the necessity of a “well regulated Militia” disappear. Poof! Gone. Scalia treated the clause as merely “prefatory” and having no real operative effect — a view at odds with history, the fundamental rules of constitutional interpretation and the settled legal consensus for many decades. (If the "fundamental legal consensus" is indeed this interpretation, then it is good the Supreme court changed it.)
“The Second Amendment was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several states,” then-Justice John Paul Stevens correctly noted in his minority opinion, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. (This may be true, but the statement relies on an incorrect definition of "militia." We again appeal to the Founders to tell us what they meant by "militia:"
“I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” – Speech in the Virginia Ratifying Convention, June 14, 1778 George Mason
“… but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.” – Alexander Hamilton, Federalist No. 29, Concerning the Militia, Independent Journal, January 9, 1788; The Federalist (The Gideon Edition), (1818), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001) James Mason
“The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American … the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” – Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788
“… but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.” – Alexander Hamilton, Federalist No. 29, Concerning the Militia, Independent Journal, January 9, 1788; The Federalist (The Gideon Edition), (1818), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001) James Mason
“The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American … the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” – Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.” (Topic change. We are not talking about regulating the use of firearms, we are talking about the right to possess them.
If we accept the above statement, we would have had to see a complete voiding of every piece of gun legislation, and we know this did not happen. Thus the author is constructing a straw man.)
Then there was Scalia’s peculiar breakdown of the phrase “keep and bear arms” into its component words to argue that the Second Amendment protects a general right to possess guns — even though, as Stevens pointed out, the term “bear arms” was most commonly used in the 18th century to describe participation in the military. (An undocumented claim that we have already shown to be false based on the above quotes from the Founders. They believed the militia was the whole of the people.)
And let’s not overlook the most absurd thing, which Breyer tried to get at in a separately filed minority opinion: At a moment in modern America when more than 30,000 lives are lost to gun violence each year and mass shootings are a common occurrence, the majority opinion relied heavily on a guesstimate (and a rotten one at that) of what the Second Amendment meant more than 200 years ago, with no common-sense balancing test taking into account the real-world consequences for today. (When Leftists use phrases like "common sense," you can be sure that whatever they are advocating is anything but. The author seems to be suggesting that because of present-day circumstances, it is justifiable to set aside the Constitution in order to address those circumstances. Of course this is a dangerous idea, because it would also have to apply to things like free speech, being secure in one's person and property, and other constitutional protections.
In addition, we are found in these circumstances because of leftist policy-making. Their initiatives are leading society into violence and dysfunction. The destruction of the family, the mocking of religious values, the micromanaging of peoples' motives, speech, and opinion [i.e. microaggressions], and the general disdain for the traditions and institutions our country is built upon, have brought about our present situation.
Evidence for this is borne out in the fact that the places dominated by the Left [Chicago, New York, California, Detroit, etc, etc.] are the places most destitute, most violent, and the most taxed. In other words, the leftist philosophy is driving us to ruin, and yet they want to take guns away from us.)
“The idea that the founders wanted to protect a right to have a Glock loaded and stored in your nightstand so you could blow away an intruder is just crazy,” says Saul Cornell, (Notice that there is nothing in this quote besides invective. It establishes no point, advances the argument not at all, nor does it provide facts or data. It's simply a dismissive.)
a leading Second Amendment scholar cited by the dissenters in both Heller and McDonald v. Chicago, the 2010 Supreme Court sequel that struck down Chicago’s similarly strict handgun ban and extended the new Second Amendment right to states and cities. Adding to the dishonesty, Scalia refused to acknowledge that he was overturning the Court’s venerable Second Amendment precedent, United States v. Miller, (Finding a new love of precedent when it is convenient to the issue, the author appeals to a 1939 [!] decision. Interestingly, both sides of the gun control debate appeal to this decision in support of their case, since it overturned a gun restriction but acknowledged a militia for the purpose of owning a firearm.)
instead straining mightily, if unconvincingly, to draw distinctions.
As radical as the holding is, the majority could have done even more damage. Scalia stopped short of applying the newly discovered individual right beyond “hearth and home,” leaving the constitutional status of toting guns outside the home for another day. And, possibly to secure the vote of a wavering justice, he offered assurance that Heller posed no threat to long-standing gun-control laws and regulations short of total gun bans.
Owing a good deal to that flash of moderation, Heller’s appalling jurisprudence and real-world harms have tended to be under-recognized. The decision gave the NRA a big jolt of energy and a potent new rhetorical tool that has bolstered the group’s already formidable ability to stop needed gun-safety reforms — to the point of blocking hugely popular congressional proposals such as extending background checks to all gun sales, even following the 2012 school massacre in Newtown, Connecticut. Heller is also wielded to advance the NRA’s maniacal drive to normalize the presence of guns and spread “concealed carry” permits, even absent a special need and adequate screening or training. Coincidentally or not, the number of states with lenient or no concealed-carry permitting requirements has grown significantly since Heller changed the terms of the debate.
We may be approaching another moment of reckoning. Since 2008, several federal courts have upheld state rules that allow officials discretion in issuing concealed-carry licenses. The Supreme Court declined to review those decisions. But forthcoming rulings by federal appellate courts in cases testing the constitutionality of similarly restrictive permitting requirements in San Diego and the District of Columbia could become fodder for a new round of Scalia-style “originalism.” If that happens, we may look back at Heller as a step toward something worse.
It shouldn’t come to that. There is language in Heller, as well as new historical research, to support upholding the concealed-carry permitting limits at issue. Still, it’s a scary thought.
In addition, we are found in these circumstances because of leftist policy-making. Their initiatives are leading society into violence and dysfunction. The destruction of the family, the mocking of religious values, the micromanaging of peoples' motives, speech, and opinion [i.e. microaggressions], and the general disdain for the traditions and institutions our country is built upon, have brought about our present situation.
Evidence for this is borne out in the fact that the places dominated by the Left [Chicago, New York, California, Detroit, etc, etc.] are the places most destitute, most violent, and the most taxed. In other words, the leftist philosophy is driving us to ruin, and yet they want to take guns away from us.)
“The idea that the founders wanted to protect a right to have a Glock loaded and stored in your nightstand so you could blow away an intruder is just crazy,” says Saul Cornell, (Notice that there is nothing in this quote besides invective. It establishes no point, advances the argument not at all, nor does it provide facts or data. It's simply a dismissive.)
a leading Second Amendment scholar cited by the dissenters in both Heller and McDonald v. Chicago, the 2010 Supreme Court sequel that struck down Chicago’s similarly strict handgun ban and extended the new Second Amendment right to states and cities. Adding to the dishonesty, Scalia refused to acknowledge that he was overturning the Court’s venerable Second Amendment precedent, United States v. Miller, (Finding a new love of precedent when it is convenient to the issue, the author appeals to a 1939 [!] decision. Interestingly, both sides of the gun control debate appeal to this decision in support of their case, since it overturned a gun restriction but acknowledged a militia for the purpose of owning a firearm.)
instead straining mightily, if unconvincingly, to draw distinctions.
As radical as the holding is, the majority could have done even more damage. Scalia stopped short of applying the newly discovered individual right beyond “hearth and home,” leaving the constitutional status of toting guns outside the home for another day. And, possibly to secure the vote of a wavering justice, he offered assurance that Heller posed no threat to long-standing gun-control laws and regulations short of total gun bans.
Owing a good deal to that flash of moderation, Heller’s appalling jurisprudence and real-world harms have tended to be under-recognized. The decision gave the NRA a big jolt of energy and a potent new rhetorical tool that has bolstered the group’s already formidable ability to stop needed gun-safety reforms — to the point of blocking hugely popular congressional proposals such as extending background checks to all gun sales, even following the 2012 school massacre in Newtown, Connecticut. Heller is also wielded to advance the NRA’s maniacal drive to normalize the presence of guns and spread “concealed carry” permits, even absent a special need and adequate screening or training. Coincidentally or not, the number of states with lenient or no concealed-carry permitting requirements has grown significantly since Heller changed the terms of the debate.
We may be approaching another moment of reckoning. Since 2008, several federal courts have upheld state rules that allow officials discretion in issuing concealed-carry licenses. The Supreme Court declined to review those decisions. But forthcoming rulings by federal appellate courts in cases testing the constitutionality of similarly restrictive permitting requirements in San Diego and the District of Columbia could become fodder for a new round of Scalia-style “originalism.” If that happens, we may look back at Heller as a step toward something worse.
It shouldn’t come to that. There is language in Heller, as well as new historical research, to support upholding the concealed-carry permitting limits at issue. Still, it’s a scary thought.
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