Setting the Record Straight

June 26, 2008

Scalia’s Pretzels for Guns

 Scalia’s Gun-Control Vote

          The next time you hear Justice Antonin Scalia call himself a constitutional “originalist,” laugh out loud. As we suggested in the previous piece he might, Scalia tortured the words, twisting them this way and that to make them support an ideologue’s view of the Second Amendment. That four others followed him down that road is a shame that has resulted in nothing but turning the Constitution into a pretzel.
          The nation’s gun nuts, and their few rational supporters, are celebrating the decision, but they don’t realize that lower courts are going to be hard put to make any sense of it. Those courts’ conclusions are likely to be in such disagreement with each other, the issue may be back before the Supreme Court in much less than the nearly 70 years it took to review the issue this time.

          One of the first such questions raised by the ruling is its application beyond the District of Columbia, whose laws are within federal grounds, not a state’s. On its face, the ruling applies only there and nowhere else, but similar laws exist in other cities. Does the tortured Scalia explanation justifying the ruling actually have any impact on other jurisdictions? The lower courts will have to sort that out. 
          An originalist view, as we said earlier, would read the same nexus between a right to bear arms and a state-run militia, as all the court’s precedents have read. An originalist view would hold the Constitution to mean only what it meant to the authors at the time they wrote it, with any other interpretation to be embodied only in changes in constitutionally allowed law or changes in the Constitution itself.
          In his majority opinion, as we suggested he might, Scalia has thrown all of that out the window, or as in today’s tabloid-cable vernacular, under the bus. And, as we suggested he might, Scalia has twisted words into pretzels to make them fit his ideology.
          He refers to the opening clause of the Second Amendment as “prefatory” and then ignores its existence, leaving an unrestricted right to bear arms. But with his pretzel words, he then suggests that well, this isn’t actually an unlimited right, that governments can still restrict some gun ownership, but not others, with no support for that conclusion, leaving it to the lower courts to figure out, court by court by court.
This is the muddied opinion.  For better writing and better judgment on this issue, we recommend the dissenting opinions of Justices Stevens and Breyer at the end.

Scalia: Activist Justice

          Antonin Scalia calls himself an originalist to explain the reasoning behind his Supreme Court votes. In truth, Scalia is one of the most activist of the justices, a term applied to justices they don’t like by most originalists.
          Being an originalist would be consistent with being a political conservative. Both ideologies reflect a preference that time never change, that everything stay the same, like the Amish attempt to freeze time at the end of the 1600s. Similarly, a U.S. Constitution originalist would freeze time to a point a few decades later, to 1787.
          That view of the Constitution says the document refers only to the situation that existed at the time it was written, 1787. Whatever the Constitution says, it means only what it meant to the authors at the time and has no application to anything that comes later. If society changes after that and changes in law need to be made, then the Constitution needs to be changed to apply to that new situation, and the Constitution itself says how that is to be done.
          That interpretation is somewhat weird, because why would the Constitution have been written in the manner than it was, without references to the present, i.e., 1787 or the situation that was in place at that time. Everything about the Constitution suggests it was intended to be relevant forever, or at least forever as it applies to the existence of the nascent nation.
          Activists are considered those with an opposite view of the Constitution, that the Constitution itself established the Supreme Court to interpret the laws and actions of American governments and whether they comply with the restrictions or powers granted by the Constitution. The term “activists” applies to conservative as well as liberals, but it most often is intended by conservatives as a scurrilous description of a liberal.
          The most activist a justice can be is in overturning a precedent of the court, as in overturning the court’s long-held decision in 1939 interpreting the 2nd Amendment’s right to bear arms as meaning that right exists as part of a militia and that state and local governments are free to control or ban any other type of gun use.
          But let us let Scalia have his weird originalist view of the Constitution and assume it is a reasonable one. If one has a philosophy as well thought out as Scalia at least pretends his to be, then one would expect him to be consistent about it and to take that view down the line.
          Anyone who has watched Scalia during dozens of
oral arguments before the court or has read dozens of his opinions for the court, his agreements with the majority and his dissents with the majority, one knows Scalia is anything but consistent. Where he is consistent is in his arrogance, in hogging the hour-long proceeding, sometimes interrupting his fellow justices, and often bullying the lawyers before him.
          His inconsistency is in his choice of words. He twists them like pretzels to make them appear to mean what he would prefer them to mean so they can support the viewpoint he wants to make fit into his originalist theory. He did the same in the oral arguments in D.C. vs. Heller, probably the most important 2nd amendment case to be decided by the court in more than half a century.
          It is not a stretch to say the justices should, in interpreting a part of the Constitution, should see it only as a part and should interpret that part in relationship to the rest of what the Constitution says.
          The 2nd Amendment at the core of the gun-control issue states: “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.”
          The 10th Amendment has a bearing because it says that whatever is not restricted by the Constitution, a state is free to restrict if it wishes and if it does not, the people are free to do whatever is not restricted, the idea at the very core of democracy: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
          The militia also comes up early on in the Constitution, in Article I laying out the powers of the legislative branch. It says Congress has the power “to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; to pro- vide for organizing, arming and disciplining the militia and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress.”
          Anyone who has read a newspaper or caught broadcast news has seen all of those actions carried out by an armed force controlled by the states. Those armed entities are universally called the National Guard.
          Since those opposed to gun control do so by rejecting the need, or even the existence of a militia these modern days, another section of the main body of the Constitution, the part laying out the powers of the executive branch, i.e., the president is relevant.
          Article II, Section 2: “The president shall be commander-in- chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.”
          The current president relied on that specific provision to order the various National Guards of the states to the war in Iraq, sealing the fact state militias do exist today in the form of the National Guard.
          Thus, Scalia brought his originalist view to bear in the oral arguments in D.C. v Heller when he said to one of the lawyers he did not believe there was a contradiction between the personal guarantee of the 2nd amendment and its reference to a militia. But then he ignores the reference in Article II, Section 2 by saying, “not necessarily a state-managed militia because the militia that resisted the British was not state-managed.”
          In his pretzel-word way, Scalia then adds, “But why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons—that was the way militias were destroyed. The two clauses go together beautifully: since we need a militia, the right of the people to keep and bear arms shall not be infringed.” He’s trying to say it is not the militia’s needs that guarantees the right to bear arms, but the need of someone who might have to be a member of a militia even if one does not exist.
          Elsewhere in the argument, Scalia said, “The principal purpose here is the militia, but the—but the second clause goes beyond the militia and says the right of the people to keep and bear arms.” He then suggests the second clause is broader than the first.
          In truth, the sentence that is the 2nd Amendment is not written that way. Any grammarian can tell you the clauses are tied and are not separate, that the second one relies on the first. The first clause sets up the second and is not even a complete sentence on its own.
          Thus, Scalia faced a conundrum of his own making when he voted in the D.C. v Heller gun-control case. As an originalist, he had to vote for the ability of a government to restrict gun possession, but as a right-wing conservative, he had to vote against any bans on the individual right to bear arms.
          Thus, Scalia faced a conundrum of his own making when he voted in the D.C. v Heller gun-control case. As an originalist, he had to vote for the ability of a government to restrict gun possession, but as a right-wing conservative, he had to vote against any bans on the individual right to bear arms.




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