Guest Opinion from Vince Taylor – fellow lawyer, conservationist, and sportsman from Chicago and Up-State New York.
A landmark 2nd Amendment case in 2008 concluded that a law-abiding sane citizen can keep a handgun in his home for personal defense, an outcome that those who ratified the Bill of Rights would clearly have endorsed. The same cannot be said for the reasoning employed. The Supreme Court establishes a precedent of judicial activism that, taken to its logical conclusion, threatens the integrity of all individual rights enshrined in the Constitution.
In District of Columbia v. Heller, Justice Scalia wrote for a slim 5-4 majority. Surprisingly, it was the Supreme Court’s first in-depth review of the 2nd Amendment since ratifcation in 1791. Also surprising is that Scalia abandoned the disciplined approach to Constitutional interpretation he so vigorously champions.
Scalia recounts in detail the history of the right to arms from its origins in 1600s England. The right to arms springs from the natural right of self-preservation. Scalia’s history makes clear that the 2nd Amendment was meant to confirm that natural right encompassed the right to defend from oppression by allowing citizens weapons and to join others in a well-regulated militia to resist tyranny.
Next, Scalia discusses a 1939 Supreme Court case that denied 2nd Amendment protection to sawed-off shotguns because they were not “part of ordinary military equipment.” He then turns that clear language on its head and asserts that the 1939 Court really meant to protect only weapons “in common use at the time” by civilians.
More disturbing is Scalia’s disregard for the undisputed original meaning ascribed to the 2nd Amendment: To provide a means to effectively defend against unjust government oppression. At the end of his analysis, Scalia denies that the 2nd Amendment extends to personal weaponry that would be effective against modern infantry such as “M-16 rifles and the like.” He is unconcerned that “modern developments” in soldiers’ personal weaponry have made citizens’ militias impotent against a modern army.
In his conclusion, Scalia notes that it is “debatable” that the 2nd Amendment is “outmoded,” but it is not the place of the Court to declare the 2nd Amendment extinct. Surely, however, he fails to warn the reader openly of his implicit conclusion: The Court may pronounce it diminished. Per his reasoning, by failing to maintain parity between the personal weapons ordinarily used by civilians and those used by infantrymen, we the people have lost a portion of the original right; that portion included to help defend from future tyranny.
Concern that our government might “go tyrant” may seem ridiculously antiquated to many Americans today. We have a 230+-year history of democracy, military renowned for its integrity and commitment to defending our democracy, and a national culture devout in its adherence to democratic ideals. Though there are notable instances, there has been no systemic effort by the federal government to curtail liberties (other than slavery now abolished). If a sufficient number of citizens believe that the risk of tyranny now irrelevant, the issue should be debated and decided through the amendment process in the Constitution, and not whittled away by the Supreme Court.
Even those who wish to abolish the 2nd Amendment should be deeply troubled by the precedent set in Heller and what it could mean for the other personal rights in the Constitution. Imagine the Heller reasoning applied to a case where government used advanced technology (beyond what ordinarily civilians have) to block bloggers posting “offensive” internet content that posed a risk to maintaining peace and security. Apply the Heller rationale to a case where government used exotic technology to inconspicuously read the contents of random home computers, without warrant, to fight terrorism.
If we citizens fail to keep pace with the technical capabilities of the government, do we diminish our right to free speech or to be free of unreasonable searches? Per Scalia’s reasoning in Heller, the original meaning ascribed to the Bill of Rights by the people who debated, wrote, read and ratified it must have included an unstated obligation to stay one step ahead of government.
Vince, I’ve always felt that Roberts and Alito were just conservative activists bent on Federalist Society ideology – intervene for conservative social policy under the guise of strict constructionism.
A right in the Bill of Rights is not there as an expression of majority views, but a protection from the majority views. There was a recognition that a majority democracy could create a mob tyranny (ie. French Revolution, McCarthyism).
For most people it’s easier to see Freedom of Speech as a cherished right b/c its a majority view now days. You don’t have to be a survivalist to worry about press access to Guantanamo or warrantless search and seizures. If Scalia can cut corners on the 2nd Amendment, why not the 1st and 4th?
Since I never bought into the textualism/strict constructionism argument, I find the application of modern facts (belt fed machine guns, manpads, grenades) to the Amendment harmonizes with banning automatic weapons, shaped charged projectiles, etc.
Even in colonial times the heavy weapons (cannons, mortars, etc) were in the county/village arsenals.
To be clear, my point is not to argue that civilians should have a right to automatic weapons and the like. The flaw in the Heller opinion is the reasoning. It is dangerous to establish judicial precedent that may “feel right” in a given case but would lead to terrible results in other contexts to which it could be applied. Rather, we should do the hard work of either either finding a rationale that holds water or calling the question as to whether an amendment is required, and then debate and decide it. If we citizens are loathe to do that, then perhaps we have surrendered our responsibilities as such, and thus our rights.