Posted by Peter W. Schramm
The Supreme Court struck down the District of Columbia’s ban on handgun ownership in what appears to be a significant victory for gun rights advocates.
Given public opinion, and the belief that the constitution ought to reflect evolving standards, on what grounds do the 4 dissenters dissent from the majority opinion? Do community standards not apply when the Justices disagree?
Couple of immediate thoughts on this, and will confess that I've not read Scalia's opinion as of yet.
1. When the ban was enacted in DC, there were 135 gun-related homicides. Last year: 143. Real effective ban.
2. Don Surber at the Charleston (WVA) Daily Mail pushes for a Heller litmus test for judicial appointments. I concur completely.
3. Mayor Daley is in an absolute
tizzy over this decision. Chicago has a gun ban very similar to DC's, and Da Mayor has vowed to fight the already launched attacks against it.
The defense used by the Daley Administration is actually somewhat sound, although mostly disingenuous. Recognizing that Washington D.C. is actually federal property, Chicago City attorneys are relying on federalism to give them legal standing to maintain the ban.
This, to me, will be the true Constitutional test. Basically, Chicago is arguing that the 14th Amendment does not oblige Illinois to honor the 2nd Amendment, going so far as to claim un-cited court cases support their argument. Now, I'm no Constitutional Law Professor, nor was I ever head of the Law Review at Harvard - but I'm not clear on how the Supremes could stipulate that the 14th incorporates all of the Bill of Right Amendments (as they've practically done) except the 2nd, without applying undo weight to the "well-regulated militia" section of the amendment.
And if they grant extra weight and emphasis to the "well-regulated militia" portion of the amendment - that would seem to fly in the face of an unequivocal right for personal firearm ownership without undo restraint.
Note: I was unable to post an outside link in my comments - as they kept resolving to a "page not found" error at NLT itself. Google the stuff, I guess....
A central constitutional right survives by one vote. Had Kerry been elected, there would be two more liberals on the Court instead of Roberts and Alito. Meaning that the Second Amendment would be a dead letter. "Civil libertarians" on the left should think about this. So should soreheads on the right who think there is no difference between the parties anymore.
RA: Of course those "community standards" don't apply . . . you never really believed that old saw, did you? The elite justices and the likes of smarty pants "community organizers" like Barack Obama will be the ones to point us in the politically correct direction to evolve. They'll have help from their intelligent friends in media and academia serving as intellectual weed-wackers to mow down recalcitrants like us. We're just a bunch of dumb peasants clinging to our guns and God . . . or did you forget? Like Frisk reminds us, we're just a presidential election and a retirement (or death) away from a very different result.
But according to John Eastman, dean of Chapman University Law School, and a leading expert on the constitutional law in this case, there is a ray of hope in the language of this decision in that AT LEAST it appeared that both the majority and the dissent were arguing over the same thing here: the original intent of the 2nd Amendment. Which is weird, he noted, since just yesterday the Court (through Kennedy) argued that there was no need to search for original intent because the standards are not fixed, etc. I wonder if the other side likes to stick to "original intent" in 2nd Amendment cases because they still cling to the notion that the amendment is really just about militias and they still think they can hock that discredited idea. It is interesting to note, however, this "cafeteria originalism" of theirs.
I hope that Eastman is right, but unfortunately, I think that the decision probably means less for Originalism than we would like it to. The dissent had to focus on original meaning because its usual tool, precedent built on precedent, was not available in this case. The court had not ruled on the issue before, so the liberals justices did not have the usual line of cases gradually chipping away at the actual text of the Second Amendment. They were originalist because they had to be. That probably won't happen again any time soon.
Ashbrook Center at Ashland University | 401 College Avenue | Ashland, Ohio 44805 | (419) 289-5411 | (877) 289-5411 (Toll Free)