In knocking down the District of Columbia's 32-year ban on handgun possession, the conservatives on the U.S. Supreme Court have shown again their willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political right.
The court's five most conservative members have demonstrated that for all of Justice Antonin Scalia's talk about “originalism” as a coherent constitutional doctrine, the judicial right regularly succumbs to the temptation to legislate from the bench. They fall in line behind whatever fashions political conservatism is promoting.
Conservative justices claim that they defer to local authority. Not in this case. They insist that political questions should be decided by elected officials. Not in this case. They argue that they pay careful attention to the precise words of the Constitution. Not in this case.
The political response to this decision from many liberals and Democrats was relief that the ruling still permits gun regulation, and quiet satisfaction that it will minimize the chances of the gun issue hurting Barack Obama in the presidential campaign. Some will rationalize this view by pointing to maverick liberal constitutional scholars who see a broad right to bear arms in the Second Amendment.
But these pragmatic judgments underestimate how radical this decision is in light of the operating precedents of the last 69 years. The United States and its gun owners have done perfectly well since 1939, when an earlier Supreme Court interpreted the Second Amendment as implying a collective right to bear arms, but not an individual right.
Here is what the Second Amendment says: “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.”
Thursday's narrow majority spent the first 54 pages of its decision, written by Scalia, trying to show that even though the framers inserted 13 important words in front of the assertion of a right to bear arms, those words were essentially meaningless. Does that reflect an honest attempt to determine the “original” intention of the Constitution's framers?
In fact, it was the court's four more liberal justices who favored judicial modesty, deference to democratic decisions, empowerment of local officials and care in examining the Constitution's actual text and the history behind it.
It was telling that while Scalia argued the Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home” – note that the Second Amendment says nothing about “self-defense in the home” – it was Justice John Paul Stevens in dissent who called for judicial restraint. He asked his conservative colleagues where they were able to find an expansive and absolute right for gun possession.
The court majority, Stevens said, “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.” But such evidence, Stevens insisted, “is nowhere to be found” in the decision. Justice Stephen Breyer also defended the rights of democratically elected local officials in a separate dissent, saying the D.C. ban was “a permissible legislative response to a serious, indeed life-threatening, problem.”
In his intemperate dissent in the court's recent Guantanamo decision, Scalia said the defense of constitutional rights embodied in that ruling meant it “will almost certainly cause more Americans to be killed.” That consideration apparently does not apply to a law whose precise purpose was to reduce the number of murders in the District of Columbia.
Advocates of reasonable gun regulations found some silver linings in this decision, and it's true that a court ruling the other way could have strengthened the hand of political opponents of gun control by energizing their movement.
While criticizing the court majority, Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, argued that the majority decision at least “permits restrictions on place, on types of weapons, on conditions of sale and on carrying concealed weapons.”
The decision, he said in an interview, will make gun control less of a “wedge issue” by refuting the claim of gun control opponents that any restrictions on weapons lead down “a slippery slope to gun confiscation.”
I hope Helmke is right. I also hope this decision opens people's eyes to the fact that judicial activism is now a habit of the right, not the left, and that “originalism” is too often a sophisticated cover for ideological decision-making by conservative judges.