The D.C. Gun Ban and The Founding Fathers – Did They Care?

Now that the nominations of this country’s two major political parties have been determined, the policy debate may begin in earnest. But don’t get too excited yet. That “great debate” has so far been characterized at best by stops and starts caused by “late breaking news” and the need of both presidential candidates to get back to the center of the country’s voter preference scale before the other one gets there. This has impeded and at times interrupted the discussion of issues as well as the choice of which issues to discuss.

            June is probably not a good time for presidential candidates racing to the center of the political spectrum to try to have a “respectful” debate on the issues. June is the month when the closely divided U.S. Supreme Court issues its opinions on some of the most difficult political and cultural issues facing our country, which is itself closely divided.
            Witness the issue of the constitutionality of the District of Columbia’s ban on handguns. That statute is now by a 5-4 ruling of the U.S. Supreme Court constitutionally extinct. The Court in a majority opinion by Justice Scalia, arguably the most articulate and forceful voice of the court’s conservative block (if Justice Thomas isn’t), stated confidently and with complete certainty that The Constitution does not permit “the absolute prohibition of handguns held and used for self-defense at home.” In doing so, Justice Scalia claimed as all “Originalists” always do to be able to discern the intent of the authors of the Second Amendment. He and his fellow “Originalists” believe that they can determine the “collective intent” of the founders by examining not only the exact words of the Amendment, but also the history of the Second Amendment. He was joined in his majority opinion by Chief Justice Roberts, Justice Thomas, Justice Alito and the swing vote as usual, Justice Kennedy, for a variety of reasons that would fall into the category of “Legal Process” jurisprudence more than the “Originalism” of Scalia and Thomas.
            Scalia’s and Thomas’s “Originalism” as it was rolled out to justify the opinion in this case while appearing classical in its application to the 27 words of the Second Amendment belies the traditional justification for “Originalism” put forward by its academic adherents and other legal writers who subscribe to the doctrine and promote it in their writings. Former D.C. Court of Appeals Judge and rejected U.S. Supreme Court Justice Nominee, Robert Bork, has suggested that it is necessary for all judges to subscribe to this philosophy “in order to keep unelected judges from seizing power from the peoples’ elected representatives.” In this case, in the name of the “Founding Fathers,” The Supreme Court’s majority of unelected judges rejected the will of the people of the District of Columbia’s elected representatives and concluded from their reading of history that the interpretation of the Second Amendment by the large number of the lower courts and even their own prior reading of those 27 words in the United States v. Miller was “mistaken.”
            Justice Stevens, in his decent, is equally unequivocal. Joined by Justice’s Suiter, Ginsburg, and Breyer, he opines without verbal restraint that the majority’s understanding of the Miller decision is not only “simply wrong,” but also reflects a lack of “respect for the well-settled views of all of our predecessors on the court and for the rule of law itself.” In a further attempt to point out how absurd it is to base a decision involving the interpretation and application of the constitution to life in 2008 on “how the words used in the Constitution would have been understood at the time of enactment,” Stevens points out that the majority “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” in 2008.
            What do the presidential candidates have to say about this decision which reflects the deep divisions of The Supreme Court and our Society? Senator Barack Obama, former Professor of Constitutional Law and pragmatic politician in hot pursuit of what former President Bill Clinton described as “the vital center” declared that “I have always believed that The Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common sense, effective safety measure….The Supreme Court has now endorsed that view.” Funny, I read the Supreme Court Decision and I don’t recall seeing that.
            Senator John McCain unfortunately couched his endorsement of the decision in now after forty years of hearing it, the almost banal right wing rhetoric about how he would pick judges who would not “legislate” from the Bench and who would defer to the will of the people and their elected representatives. I guess Senator McCain at least until this election is over, has convinced himself that he subscribes to this rhetorical simplification except if “the will of the people and their elected representatives” conflicts with the preference and the strong feelings of the Republican Party’s conservative political base. In any case the D.C. Handgun Ban decision could not be a more awkward and inapposite judicial vehicle in which to emphasize Senator John McCain’s recently stated belief that it is necessary for judges to wholesale subscribe to “Originalism” in order curb judicial discretion which naturally seizes power from elected representatives if it is not limited by the appointment of “strict constructionist” judges.
            This belies his previous courageous and admirable involvement with “The Gang of 14.” That group consisted of a bipartisan group of senators who agreed to work together to reduce the partisanship involved in the nomination and confirmation of Federal Judges. It also ignores the research and findings of Judge Richard Posner and legal commentator Ronald Dworkin who point out that “there is no legal experience or evidence that this is the choice.” – “The question posed by an originalist versus an activist or a pragmatic judiciary is not one of democracy, or no democracy, but of the kind of democracy we want.”

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