Friday, June 27, 2008

Constitutional nonsense

. . . so the first comment I heard yesterday on the Supreme Court's decision in the Heller gun case came from some "conservative legal scholar" holding forth on the Kojo Nambe Show, one of NPR's midday talk programs that is heads and shoulders above the usual tripe our local affiliate usually offers. Here is what he said, and I'm paraphrasing (but still pretty accurate):

"I don't want to sound hyperbolic, but this could be the Court's greatest civil rights decision since Brown v. Board [of Education, 1954]."

Oh, yes, absolutely. After all, the right to own a dangerous weapon is . . .

. . . more important than the Court's post-Brown decisions holding that religious minorities have constitutional rights, that the state may not impose religion on the unwilling, that criminal defendants have the right to an attorney, that police cannot use evidence that has been illegally obtained, that women are constitutional citizens with equal rights, that women have the right to control their reproductive choices, that public officials have no real immunity from libel suits, that the government cannot determine who can say or print what simply because it claims some mysterious "national security" interest, that the right of habeas corpus cannot be suspended because the president believes it is politically expedient, that juveniles and the mentally retarded cannot be executed . . .

. . . and on and on it goes.

If Heller accomplishes anything the least bit good, it should be this: that Justice Antonin Scalia is exposed for the fraud that he is. Since 1986, when Scalia joined the Court, he has claimed the high moral ground by basing his constitutional "reasoning" on his super-natural ability to glean the "intent" of the constitutional Framers. "Originalism," as a theory, was not trademarked until the early 1980s, when then-Attorney General Edwin Meese claimed that the only responsibility of a judge was to "discover" the intent of the people who wrote whatever phrase of the Constitution was in question and apply that knowledge to the case or controversy before it. And wouldn't you know it, every single application of originalism to a constitutional dispute happened to yield an outcome embraced by social and political conservatives. Robert Bork's confirmation hearings in 1987 offered a nationally televised seminar on the power of ancestor worship as an interpretive constitutional method. Rather than dismiss this "theoretical" nonsense, the conservative legal movement embraced it, and has since been extraordinarily successful in marketing the modern conservative movement -- religious nuts housed with the same lunatics who do not believe that American law applies to American citizens who have been accused of terrorism -- as a return to the "lost" constitutional principles envisioned by the Framers. Even today, there is no shortage of very respectable scholars teaching at elite institutions who really believe that we can know and apply what the Framers intended in 1789 or 1791 or whenever to contemporary problems. If the pro-gun forces are really serious about discovering and applying the Framers' intent, then they should introduce legislation that limits "self-defense" to a single-shot musket rifle or gun and leave all other regulatory matters to the citizenry. They also introduce provisions to this "Musket Bill" prohibiting African-Americans from owning any sort of firearm, since the Framers did not consider blacks people in any sense of the word. They were property with no constitutional right to read, write, travel, enter contracts or negotiate their way in the world as free citizens. For every Abigail Adams who defended her homestead from the British with her rifle, there were thousands more women who weren't allowed to do anything other than what men wanted them to do, which did not, by the way, include for-profit labor or such small matters as voting. Decisions like Heller are, in some ways, even more offensive than the usual parade of horribles like Dred Scott or Bush v. Gore. I'd think I'd rather have my ass kicked by someone who is honest enough to admit he just wants to beat me up than hear how my impending demise is rooted in God's Will or some divine force sent forth by the ghosts of James Madison and John Adams. Law office history does not make for honest scholarship or even honest opinion.  Just a little over a week ago,in Boumediene v. United States, Scalia fretted that returning habeas corpus relief to imprisioned terrorists suspects would result in more Americans being killed.  And making more guns available to people will result in, what, fewer Americans being killed?

Switching gears . . . take a look at the photographs of the good red, white and blue Americans celebrating their "right" to own a gun. Pearls and rep ties; pasty faces and standard-issue Washington haircuts; freshly pressed shirts and J. Crew shorts to match. What are the odds that all the interns and fresh-out-of-college draftees into the Washington culture of think tanks, foundations, law firms and Hill offices have ever held a gun, been a victim of gun violence or had a 9 mm Glock pointed at their face? Probably zero. And these are many of the same people who will campaign tirelessly for John McCain, who wants to appoint more people like Scalia, Clarence Thomas, John Roberts and Sam Alito to the bench. Living life in the abstract allows you to more absolute in your opinions, since abstraction only offers a hypothetical engagement of problems that many, many people outside of the narrow confines of the Washington political culture actually face in their own daily lives.

And so much for the right of the people to govern themselves. Like D.C., almost 30 states have laws regulating or banning handguns. You know, federalism . . . government works best when it reflects the views closest to the people, except if those views conflict with the right-wing social and political agenda of the Republican party. William F. Buckley, the conservative icon, once famously said that he would rather be governed by the first 400 people in the Boston phone book rather than by the faculty of Harvard University.

Except when those 400 people have different views than the five Republican appointed members of the United States Supreme Court.

1 comment:

Carlos said...

Let me ask you this, if the Second Amendment said "A well educated electorate being necessary to the preservation of a free democracy, the right of the people to keep and bear books shall not be infringed" could you, John Paul Stevens or Stephen Breyer look me in the eye and say that you can only own books in connection to your affiliation in the electorate? That all people who don't vote for one reason or another must go through background checks, fingerprinting and waiting periods to own books? That books would have to be registered? That a city, town, county or state could ban the possession of an entire category of books?

As Scalia said, the need for the second amendment is debatable, but as long as it is still there, it should be enforced, just like the other 25 (not counting the repealed prohibition amendment, of course).