GUNS AND JUDGES (Reinhard)

The Oregonian ^ | July 3, 2008 | David Reinhard

[jazusamo]

Judicial activism. Legislating from the bench. Ideological decision-making by judges.

No sooner had the Supreme Court announced its decision in District of Columbia v. Heller than critics of the 5-4 majority decision and the court's sometimes-conservative majority cried all the above. In holding that the Second Amendment granted individuals the right to keep and bear arms, the court's conservatives -- those champions of judicial modesty and originalism -- were now engaging in judicial activism of their own. Yes, everybody does it, and conservatives are just hypocrites for pretending otherwise.

The Washington Post's E.J. Dionne Jr. was at the head of the pack, with a column that appeared in The Oregonian the day after the decision. Not only was "the judicial right" guilty of this, but the ruling also showed that its talk of deferring to local authorities and elected officials on political decisions and heeding the Constitution's precise words was poppycock.

It's hard to know what accounts for the "They're activists, too" line. Is it confusion or a conscious bid to attack the judicial right's greatest strength -- the solid, winning notion that judges should interpret, not make, law? It certainly cannot be an impartial reading of Justice Antonin Scalia's majority opinion or a full understanding of judicial restraint.

Dionne thinks it's telling -- telling of dishonesty -- that Scalia spent the first 54 pages of the majority opinion explaining away the first 13 words 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"). Dionne seems to have spent more time counting than reading. Would he have found the decision more compelling if Scalia had spent 25, 12 or no pages? Or would he have criticized it for not exploring the contemporaneous meaning and relevance of those (13) prefatory words and the (14) words that follow? Somehow I doubt he would have found any number of pages satisfactory, because he disagrees with the result. But what those 54 pages contain is honest, old-fashioned constitutional analysis -- a look at the text and context of the Second Amendment before, during and after the Framing.

But doesn't the "judicial right" favor local decision-making? Shouldn't elected city officials be able to craft policies (handgun bans) to deal with gun violence in their crime-ridden community? Not if they trample on the Constitution in the process. They cannot abrogate the First Amendment's assembly protections or the Fourth's search-and-seizure safeguards because a community wants to deal with gang violence or any other local problem. A due regard for states and local governments in our federal system and a proper judicial deference to the legislative and executive branches on political questions doesn't allow elected officials or unelected judges to ignore the Bill of Rights, and nobody on Dionne's "judicial right" has ever said otherwise.

Dionne and the Heller minority think the Second Amendment recognizes a collective right tied to "a well-regulated Militia," not any individual's right to keep and bear arms. They cite the 1939 "precedent" of United States v. Miller, which upheld two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce. They think this shows the majority's contempt for precedents anathema to conservatives.

Scalia argues, however, that Miller is no precedent at all for their view. He notes that Miller did not center on the fact that the two individuals were not bearing arms for military purposes. In Miller, the court ruled only that the weapon was not eligible for Second Amendment protection, since sawed-off shotguns had no relationship to the "preservation or efficiency of a well regulated militia." As Scalia wrote for the majority, "Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen." Bingo.

Noting Scalia's 54 pages on the 27 words of the Second Amendment, the page-counting Dionne wrote last week. "Does that reflect an honest attempt to determine the 'original' intention of the framers?"

Actually, it does. Majestically so.

David Reinhard, associate editor, can be reached at 503-221-8152 or davidreinhard@news.oregonian.com

[blackie]

Ted Nugent is way too conservative for McAmnesty!!

[absalom01]

They didn't do their homework, whether Miller had an attorney present or not, and they screwed up.

Got it...I didn't quite understand your point. Just to flog this dead horse one more time, though, when the court said "it is not within judicial notice....", what that means is "Look, we (personally, not as judges) know guys used sawed-off shotguns as personal defense weapons in the last war, but you have to present that evidence to us. We're the court. We don't go do research on that sort of thing (in later years this would be called a form of judicial activism).)

My point is that it wasn't the court's job to go out and figure out whether a sawed-off shotgun was "...part of the military equipment...", in fact, you don't want courts doing that.

Now, this issue will be brought up again, and who knows what the results wil be. We'll find out. At least the door is open now, and we're on the offensive, which is much better than the endless rear-guard actions of the past 70 years.

[Dead Corpse]

Exactly so. Scalia even points it out in one of those 57 pages...

[publiusF27]

That's true, but AR-15s are common in civilian hands, and the price of a legal happy switch demonstrates that they would be common if not for the ban.

I think the ban on full autos is much more vulnerable than is commonly believed. Consider what the Appeals Court ruling, just affirmed by the Supreme Court, had to say:

Once it is determined—as we have done—that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them.

Scalia spoke directly of the issue, and wound up saying this:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause..... But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

He was talking about other modern weapons, but the only "modern development" which causes gun shops to sell AR-15's to us and full auto versions of the same gun to the government is the ban on post '86 machine guns.

[willgolfforfood]

Thanks for that info. Like I said, I’m no lawyer. But now I know why many of those who are can say, “The law is an ass.”

[Smokin' Joe]

I know your heart is in the right place, but please don't claim that full autos are common because of state militias, even if they are, in fact, common there.

How common is common?

If every legally available one is in private hands, with the exception of relatively small dealer inventories which sell at prices vastly above the world market, solely because of regulation, the argumant can be made that they are as common as is possible under current regulations, and that demand exceeds supply.

The very (inflated) sale price of a currently transferrable arm makes the case that they would be more common were they available, and especially if the price were lower.

As you state: "If there was no NFA and no '86 ban, there'd be at least 5 million full autos (or select fire weapons, which amounts to the same thing in a legal sense) in civilian hands, maybe more."

[neverdem]

http://www.freerepublic.com/tag/by:robertpaulsen/index?brevity=full;tab=comments

Look who's been missing for 2 months. AxelPaulsenJr, are you related to Robert? If so, what happened?

[publiusF27]

Miller was alive but absent when the case was heard. He was killed before it could be heard again by the lower court. His partner, Frank Layton, copped a plea.

[publiusF27]

So if you notice someone blasting away with a trench gun, and then you later become a SC Justice, it’s not within judicial notice? LOL! Good points re “common” and “unusual” weapons above, btw.

[Squantos]

?

[publiusF27]

It’s too bad robertpaulsen is not around. He had dire warnings of what might happen if an individual, fundamental (as in incorporated) right were found by the SC, so he’d be arguing furiously that this whole thing only applies to the feds. It would be great entertainment, and I usually learned a few things.

[mvpel]

That's true, but AR-15s are common in civilian hands, and the price of a legal happy switch demonstrates that they would be common if not for the ban.

One such "happy switch:"

[mvpel]

So if you notice someone blasting away with a trench gun, and then you later become a SC Justice, it’s not within judicial notice? LOL! Good points re “common” and “unusual” weapons above, btw.

Just to clarify, in case someone doesn't understand, the term "judicial notice" is a term of legal art. It means that the court accepts a given fact as true even though there's been no sworn testimony or evidence presented to prove it.

Typically it's applied to stuff like "July 4, 1984 fell on a Wednesday," and so on. Stuff that's widely known or can be determined using widely-known, universally-accepted methods.

[Blood of Tyrants]

Activism by conservative judges - taking the Constitution at it’s plainly worded face value as explained by those who wrote and argued it.

[ninenot]

Well, perhaps he should be reminded that the BoR doesn't "grant" anything; it merely enumerates pre-existing, natural rights

FWIW, Scalia emphasized that in his decision--that it is an a priori right, not granted by anyone but God.

[semantic]

it is an a priori right, not granted by anyone but God

Well, I tend to leave God out of it and focus on natural rights, but the end result is the same.

As a matter of course, it doesn't whether someone is lib/con, their entire thesis is immediately discredited upon any mention of 'grant', 'gives', etc in reference to the BoR.

As many of Framers well recognized, an enumeration of natural rights could give the impression that there may be some limit and/or gov't acquiescence, when neither is the case.

The ultimate manifestation of this corrupted understanding of natural rights is where we find ourselves 225 years later waiting with bated breath as we are judged by 9.

[publiusF27]

Stuff that's widely known or can be determined using widely-known, universally-accepted methods.

But the use of trench brooms was widely known, and asking any soldier would have to qualify as a universally accepted method of determining whether he could name a military use for a short shotgun. I guess it depends upon what the meaning of "widely" is, which is somewhat less clear than the word "is" is. ;) But doesn't it seem that the Supremes at the time of the Miller decision could easily have said that it was well known that short shotguns had military utility?

[wastedyears]

I’m not reading past the first paragraph.

What a load of BS.

[Darren McCarty]

I think you’re referring to Stephen Reinhardt of the 9th circuit (and Jimmy Carter appointee).

[wastedyears]

Excellent piece by Ted, and I’m glad to call him a fellow guitar player.