Calling all Constitutional Law Junkies: June 26, 2008 was a monumental day.
It is not often (yet more frequent these days than is perhaps appropriate) that the U.S. Supreme Court authors a decision in which it offers — in nearly 150 pages of disparate, arguably subjective detail — overtly telepathic insight into the minds and hearts of the framers cast under a thin, unimpressive veil of stare decisis. A day to celebrate? Perhaps, as it was for the N.R.A. supporters and the libertarian crowd who view the District of Columbia, et. al. v. Heller through a narrow pragmatic lense as a promotion of individual liberties (and security that they can keep their guns.) A day for outrage? Apparently for a “frightened” Mayor Daley, as he trumpeted the call to fight for the right to ban guns in his hometown and plans were made to challenge similar laws in megapolises across the country.
I felt something in between. I feel scholastic excitement, to be sure. Heller , like Bush v. Gore, will certainly endure as a landmark case in Constitutional Law 101 for centuries to come. The majority opinion, authored by Justice Antonin Scalia and joined by Justices Roberts, Thomas, Alito and Kennedy, is bursting with interesting (if somewhat trivial given Scalia’s general predisposition against extra-four corners constitutional analysis) historical references — James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment; E. de Vattel’s 1792 “The Law of Nations, or, Principals of the Law of Nature”; England’s 1671 “Game Act”; and, of course, the mighty and ever-persuasive Federalist Papers. (As a reverent admirer of the Papers, I write this tongue-and-cheek to respectfully mock Scalia’s apparently selective use and disuse of the great Hamilton/Madison cryptic debate depending whether it supports a case’s end result.) Further, Justices Breyer and Stevens each offer 40+ page dissents, allowing all of us to catch a glimpse of what it must have felt like to be in the back room on this one.
At the same time, however, I feel disappointed. To have such a monumental decision — one where the highest court in our land determined the parameters of what I suppose should now be referred to as an “individual right” by a 5-4 vote along ideologic [i.e…(dare I suggest it) political] lines — is a tough reality check for a struggling idealist to bear. I am still trying to hold on to the red, white and blue notion that judges are impartial and justice is politically blind, but decisions like this make me feel more foolish than enlightened or proud. Do I believe in a “living constitution”? Not really, but I firmly believe our nation ‘s judiciary desperately needs to develop a set a norms by which to interpret constitutional doctrine that is not so fraught with explicit contradictions as to make monumental decisions such as Heller appear disingenuous at best.
(Bear in mind my worldview has been shaped by an outlandish cast of global characters who boast extremely divergent philosophies. From peace makers in Missoula singing Kum Ba Yah in the foothills to my hometown husband who spends every possible minute each fall in a tree stand, I feel lucky to be able to appreciate the widely debated social issue at stake in Heller — whether individuals should bear arms — from many different angles. How I actually come down on that debate is a subject for another post, because, in my opinion, it is wholly removed from the doctrinal mishaps displayed by the Supreme Court yesterday.)
Worst of all, the decision left me feeling a little lighter in the pocketbook — at least in my personal future’s market. When the Supreme Court granted cert on this case, I bet my brother-in-law dinner at one of Elmira’s finest dining establishments that there was no way the court would strike down D.C.’s law. “Scalia is an originalist,” I argued, “but even he won’t stretch so far as to breath individualism into the Second Amendment.” Guess who got a text yesterday reminding me it is now time to pay up…
After posting this I was approached by a few folks who asked, “So, what do YOU think of the opinion?” Though I initially tried to remain neutral, this is what I think:
I think the Supreme Court got it wrong. Forgetting the legal and constitutional context for a moment, I feel bearing arms (at least in our neck of the woods) is a good thing. Most people around here have them for sport, and so long as they are well regulated it does not seem to be a bad thing.
In legal terms, however, I think the majority opinion – authored by Justice Scalia – is off-base. Purporting to use pre-colonial history to support the notion that our founders envisioned an unfettered right for an individual to bear arms for any purpose, Scalia, in my opinion, ignores the black and white text of the Second Amendment – “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.”
Instead I tend to adopt the viewpoints set forth by Justice Breyer in his dissent. Breyer accepts the Second Amendment guarantees some sort of an individual right, but argues (1) the Amendment protects militia-related, not defense-related, interests, (a position for fully developed in Justice Stevens’ dissent); and (2) the protections provided by the Amendment are not absolute, but rather, like other constitutionally protected rights such as the right to be free from search-and-seizure, can be regulated or curtailed by the government so long as the government’s purpose for doing so bears, at a minimum, a “rational relationship” to a “legitimate governmental purpose.”)
Thanks for reading (and putting up with a bit of pontification),