Saturday, June 28, 2008

This decision will cost American lives

Is that what you think about the Heller decision, Spot?

Well yes, grasshopper, but it's not a quote from Spot.

Who then?

It's Justice Scalia, quoted in his dissent in the Boumediene decision of a week or so ago.

That's the case that decided that the system set up by the Military Commissions Act for detainees was not an adequate substitute for the writ of habeas corpus. Right?

That is so grasshopper. Just so all the boys and girls are up to speed, grasshopper, Spot will say that Heller is the decision from the U.S. Supreme Court this week holding that individuals have, well, let's let Linda Greenhouse tell us:

The Supreme Court on Thursday embraced the long-disputed view that the Second Amendment protects an individual right to own a gun for personal use, ruling 5 to 4 that there is a constitutional right to keep a loaded handgun at home for self-defense.

Spot predicts that history will judge Tony Scalia the same way it has judged Roger Taney and Henry Brown.

Who are they, Spotty?

They are the authors of Dred Scott v. Sanford and Plessy v. Ferguson, respectively.

They aren't held in much esteem, are they Spotty?

No grasshopper, they are not. The cases involve different issues and "rights" under consideration, but they all share a disingenuousness and intellectual cowardice.

There are better places to go than here for an in-depth discussion of the Heller opinion, but here's where you are, so you'll have to indulge Spot a little.

Some of you boys and girls will remember that the Bill of Rights, when first written, was only applicable to the the federal government. That's right, the states could establish a religion even if it wasn't yours, search your house without probable cause, didn't need to give you a jury trial, et cetera and et cetera.

It was only after the Civil War, and the adoption of the Fourteenth Amendment, that the Supreme Court began to "incorporate" the rights of the Bill of Rights into that Amendment and apply them as prohibitions against the states. After a time, really all of the individual rights of the Bills of Rights had been held to apply to the action of states.

But the so-called individual right to bear arms never was.

Spotty! That's not fair!

Grasshopper, it's onions and petunias, or apples and oranges. Unlike the other rights that had been incorporated into the Fourteenth Amendment and were intended as protection of individuals against the government, the Second Amendment was intended to protect the right of the states themselves to organize militias to suppress their own insurrections, and given the sentiment of the times, to protect themselves from the federal government.

The very language of the Second Amendment makes that clear:

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.

Now, to get from this to saying that the individual has the right to keep a loaded .357 under his (it is almost always his, as Sigmund Spot will likely reflect on later) pillow to keep the bad guys away (to paraphrase Linda Greenhouse) is difficult.

Unless you are Nino Scalia.

If you're Nino, you just ignore the opening phrase.

Which is especially annoying when coming from the original originalist. Nino always makes a big show of conducting a seance with the Founders before making a pronouncement about the meaning of the Constitution. Nino likes to say that the words in the Constitution mean something. Apparently except when they don't!

Actually, Nino has shed his street cred on originalism before, most recently last week with his dissent in the habeas corpus decision linked above. Nino is clearly ready to suspend the writ of habeas corpus in situations far beyond those contemplated in the Constitution.

Spot expresses no opinion, as a policy matter, whether we should allow people to put loaded guns under their pillow. Most places, including Minnesota, you could before the Heller decision. In a few places, like DC, you could not. But to raise that policy discussion to the level of a constitutional argument? Shame on you, Nino.

One last point. Some people, and you know who you are, have expelled great volumes of hot and noxious gas about MNO's remark about the Heller decision perhaps being limited to muzzle-loading flintlock pistols.

Spot regrets to say that these people are far too thick to understand an originalist joke.


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