A couple of weeks ago, Justice Scalia, in dissenting from the Supreme Court decision stating that Guantanamo detainees have habeas corpus rights, lamented that the ruling “will almost certainly cause more Americans to be killed.”
Today he wrote an opinion finding a broad right to own handguns, a decision that, one could argue, “will almost certainly cause more Americans to be killed.”
Maybe, maybe not, but thanks to Slate for pointing out the contradiction. If it is one.
I don’t know whether the ruling is correct or not. The opinion and two dissents run to more than 150 pages, and they’re unusually chock-full of scholarly, historical analysis. And we’re talking about a sentence that was written more than 200 years ago in a vastly different world with vastly different writing styles and vastly different guns.
This is what happens when you try to interpret one of the world’s oldest functioning constitutions. Do other countries, with newer constitutions, have this problem? Do other countries’ judges have to interpret such sentences as, “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”? Let alone the crappy sentence structure, what do the individual words mean?
It’s worth noting that the D.C. law at issue was pretty extreme. It banned the possession of handguns in your own home, and all other types of guns in your home had to remain either unloaded and dissassembled or bound by a trigger lock or similar device. The majority opinion has narrow effect — it strikes down this law, but it doesn’t discuss other types of gun laws, including that prevent criminals or the mentally ill, etc., from having guns.
Scalia ends his opinion as follows:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
What happens if we change a few words?
We are aware of the problem of terrorism in this country, and we take seriously the concerns raised by the many amici who believe that the stripping of habeas corpus rights is a solution. The Constitution leaves the government a variety of tools for combating that problem… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the stripping of habeas corpus rights except in times of rebellion or invasion. Undoubtedly some think that the right of habeas corpus is outmoded in a society where the threat of terrorism is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce constitutional rights extinct.
Who’s right?
Who knows?
Isn’t Supreme Court analysis fun?
The DC law was perfectly reasonable. The second amendment only applies to firearms that can be used for government sponsored militias.
The court deliberately distorted the constitution in order to put more guns on the street, make people more vulnerable and frightened, and make people more dependent on the state for protection.
The contradiction about causing more Americans to be killed is not a contradiction at all. The bushista junta have made their judicial appointments with great care, specifically to guarantee that their ideology will remain in force even if, Jesus forbid, the liberals somehow lie and cheat their way into both the White House and a Congressional majority.
The Roberts Court is steadfastly loyal to its masters, and thus will dutifully parrot the bushista assertion that the limitless expansion of the Unitary Executive’s powers is vital to Protect America From Terrorism. Producing the result they have been appointed to produce is the goal, and their clerks can always produce sufficiently voluminous “reasoning” to clothe the result in the requisite sophistry.
In the habeas corpus case, the justices loyal to the Unitary Executive somehow ended up in the minority. But the imperturbable Scalia served his Vice Presidential duck-hunting buddy with perfect fealty. He went on record with the Official Party Line that the disloyal, unpatriotic majority’s will bear the full blame for each tragic death they caused by foolishly attempting to restrict the Unitary Executive.
Not that any of it matters. Should either the Legislative or Judiciary Branch overstep its proper role as ratifier and funder of the Unitary Executive, the President will just exercise his sole prerogative to ignore them. That’s an inherent power of the Unitary Executive, since Alberto Gonzales wrote the definitive memo that said it was. Fortunately, in the gun case the Supreme Court did its job correctly and affirmed the correct ideological position.