A telling dissent

Posted on July 8, 2010. Filed under: Arkansas Democrat-Gazette Columns |

At long last, the debate is settled. On Monday, the U.S. Supreme Court declared that the Second Amendment right to keep and bear arms is an individual right applicable to the cities and states.

So much for decades of legal theorists’ abstract and often arrogant arguments to the contrary. (The high court had never definitively ruled on the matter before.) Perhaps now public safety policy development can shift from gun control to criminal control, where it rightly belongs.

The court’s 5-4 ruling held unconstitutional a Chicago ordinance banning handgun possession. As in the case of the District of Columbia, whose handgun ban was overturned in a more restrictive ruling in 2008, the verdict on gun control in Chicago shouldn’t have to come from the courts. Despite the nation’s strictest handgun ban, ABC News reported, there were more than 50 shootings in Chicago’s poorer neighborhoods over Father’s Day weekend.

The flawed Chicago law is a perfect example of how governments try to tiptoe around rights to avoid challenges. The city ordinance didn’t explicitly ban handguns; rather, it only required registration of them-but then prohibited registration of most handguns.

It’s too bad that all the average person will read or hear about this landmark decision is the news headlines. The opinion itself is all at once instructional, inspiring and insightful, even if it is full of distracting legalese.

With Justice Samuel Alito writing for the majority, the decision includes barbed exchanges from Justice Antonin Scalia (concurring) and retiring Justice John Paul Stevens (dissenting).

There’s a great deal of historical context in Alito’s opinion, which is timely as we head into the Independence Day weekend. He quotes contemporary writings from both the ratification and Reconstruction periods to clarify consensus at the time on what the Second and Fourteenth Amendments were understood to mean.

He first outlines, in several pages, discussions of the Second Amendment during ratification, noting that both Anti-Federalists and Federalists agreed on the fundamental nature of the right to bear arms. The argument was about whether the Constitution already adequately protected the right or whether an amendment was needed.

He then refers specifically to attempts by Southern states, militias and municipalities to disarm newly freed slaves following the Civil War. This led the 39th Congress to take legislative action in which it explicitly named the “constitutional right to bear arms” as among those to be enjoyed by all citizens in the Freedmen’s Bureau Act of 1866.

The more than 20 pages of history lessons would be nutritious for any citizen, but the far more revealing literature in the opinions involves Stevens’ curious arguments in his dissent and Scalia’s surgical dismantling of them.

If there were a Pulitzer for Supreme Court decision-writing, surely Scalia would be a candidate. His flair for simplification is unmatched, and it’s refreshing to see a justice so eloquently capable of cutting through legalistic balderdash and getting to the heart of critical matters of liberty and law.

Scalia makes it clear from the beginning in his concurrence that he is writing primarily to address Stevens’ dissent, in which the latter does seem to revert to the old lawyer adage about only arguing the facts of the case when the law’s against you.

The law, or in this case the constitutional text, gets short shrift from Stevens. Instead, he wanders into a discourse on all the things besides the Constitution that should guide a Supreme Court decision.

One “important tool” used in judicial discretion that Stevens mentions is “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.”

Scalia’s response can be condensed to “Say what?”

“Is it some sixth sense instilled in judges when they ascend to the bench?” he writes. “Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences?”

Likewise, later on when Stevens is explaining that the Second Amendment is “different” from others, he proclaims that “firearms have a fundamentally ambivalent relationship to liberty.”

Scalia’s quick rejoinder: “The source of the rule that only nonambivalent liberties deserve Due Process protection is never explained-proof that judges applying Justice Stevens’ approach can add new elements to the test as they see fit.”

Scalia openly condemns Stevens’ final dissenting argument that the justices should use prudential reasons tomake their decisions.

“The implication of Justice Stevens’ call for abstention is that if We The Court conclude that They The People’s answers to a problem are silly, we are free to ‘interven[e],’” Scalia writes, “but if we too are uncertain of the rightanswer, or merely think the States may be on to something, we can loosen the leash.”

Perhaps Stevens’ retirement is overdue and his comments overly reflect philosophical rather than legal conclusions. But the closeness of this decision shows how perilously close we have been to a court that might openly disrespect the written tenets of our Constitution in lieu of its own “prudence.”

That’s not liberty by any name. And it’s scary.

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