The Constitution is a Hoax!

My personal favorite treatment of the illogic of the minority in D.C. v Heller comes from WSJ's James Taranto in yesterday's Best of the Web.

"The [Supreme] Court 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," Justice John Paul Stevens writes in a brave dissent in District of Columbia v. Heller, the just-decided case striking down the federal district's near-total ban on firearms.

Stevens is right. Who are they trying to kid? And yet a razor-thin majority of the deeply divided justices expect the American people to swallow this hoax. Supporters of this so-called right to keep and bear arms claim that it dates to 1791. (That faux precision is a nice touch--not 1790 or 1795 but 1791.) A bunch of dead white males are supposed to have gotten together and assembled something called a "bill of rights." The more extreme exponents of this view claim that the so-called bill limits the tools available to elected officials not just with regard to firearms but a whole host of other things: "freedom of religion," "freedom of speech," "cruel and unusual punishment," etc., etc.

Delectable! There's more, if you care to Continue Reading...

Reuters has their number. "Although an individual now has a constitutional right to own guns, that new right is not unlimited, wrote [Justice Antonin] Scalia, a hunter," the news service reports today. Justice Stevens is 88, and he is generally considered old. If this right really dated back 217 years, Reuters could not describe it as new.

Scalia engages in a lot of fancy-pants wordplay in order to conceal his hoax. For example:

In any event, the meaning of "bear arms" that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby "bear arms" connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving "bear Arms" its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war--an absurdity that no commentator has ever endorsed. . . . Worse still, the phrase "keep and bear Arms" would be incoherent. The word "Arms" would have two different meanings at once: "weapons" (as the object of "keep") and (as the object of "bear") one-half of an idiom. It would be rather like saying "He filled and kicked the bucket" to mean "He filled the bucket and died." Grotesque.

Yet constructions like this allow us to point out that Justice Scalia created out of whole cloth a new constitutional and pandered to the extreme right. You can see why they make him uncomfortable.

Scalia also faulted Justice Stephen Breyer for taking account of the practical implications of this so-called constitutional right:

He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering "interest-balancing inquiry" that "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests." . . .. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of government--even the Third Branch of Government--the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.

Here is what Breyer had to say in his dissent:

The argument about method, however, is by far the less important argument surrounding today's decision. Far more important are the unfortunate consequences that today's decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.

Surely everyone can agree that as a practical matter, Breyer has the better of the argument. After all, Heller was decided only a few hours ago, and already the District of Columbia has declared a "crime emergency."

SCOTUS Posted by JohnGalt at June 27, 2008 6:52 PM