June 30, 2008
Column: The highest political bearpit in the land
When the US Supreme Court makes important rulings, discussion ensues on the intent of the constitution’s draughtsmen and how far their purposes should guide the court more than 200 years later. The designers of this miraculously durable constitution would have wished there to be such debate. But I do not think they would be impressed by much else they see. In fact I am sure they would be dismayed and even disgusted by what the court has become.
Its handling of Bush v Gore in 2000 marked a dangerous low, whether you see that as reckless bungling (as I do) or an outright power-grab. But it was no isolated instance. Despite learned claims to the contrary from all its members, the Supreme Court has become an intensely political body. It is a squabbling panel of legislators in robes – partisan and unelected, selected for their politics and appointed for life.
The court is as polarised as the branches of government it oversees. Far from standing above day-to-day politics and defending the system’s integrity, the justices are down in the dirt throwing punches with the rest, pausing now and then to wipe themselves down, write an opinion and reflect on their dignity.
The remainder of this column can be read here. Please post comments below.
“…and I will tell you how eight of the nine justices will rule (legal reasoning to follow).” — Clive Crook
Dear Mr Crook,
Your apotheosis of Mr Obama has strayed too far. Seems he can never err: his apologists will philosophise a way out of any of his waffles. They will embellish every mundane statement, just like the acolytes of a prophet find shades of meaning in every banal deed or saying.
Mr Crook, please be transparent with your readers and admit you have already decided a priori to endorse Mr Obama (reasoning to follow).
Posted by: RCS | June 30th, 2008 at 8:59 am | Report this commentPerhaps all of us, myself included, have been a little too quick to jump to the conclusion that the legal reasoning on both sides in the gun case (and other Supreme Court cases) is just a smokescreen for ideological bias.
I have just read through Justice Scalia’s opinion, and have begun reading Justice Stevens’ dissent. This is enough to convince me as a lawyer that there are powerful arguments on both sides of the question whether the second amendment right to bear arms is an individual or a collective right.
Just to mention two of the points involved, Justice Scalia shows convincingly that the individual right to bear arms in self defence was regarded as an important protection against state tyranny in England, and again during the Reconstruction period in the US, when the Southern states tried to ban blacks from bearing arms. He also points out that, at the time the Second Amendment was adopted, many state constitutions also guaranteed the right to bear arms, without limiting it to service in a miltitia.
Justice Stevens, on the other hand, argues, based on well accepted canons of legal interpretation, that the fact that the Second Amendment, unlike some of the state constitutions, ties in the right to bear arms with service in a militia means that this limitaton was central to the purpose of the Amendment.
So far as I have been able to gather, neither opinion went very far into the composition of 18th century militias themselves, but it would be reasonable to assume that they were made up of men who brought their own personal weapons with them in order to form the militias (as in the unfortunate case of Iraq today, for example). Therefore, no such thing as a militia could have existed without an individual right to bear arms. At least one could make a convincing argument to this effect.
My point is not that Justice Scalia is necessarily right and Justice Stevens wrong, but simply that there are important and genuine issues of legal interpretation involved. I therefore retract my own comments, posted on Clive Crooks’ previous blog on this subject, to the effect that the majority opinion, at least in this case, is nothing more than sophistry designed to conceal a right wing, pro-gun bias. If it is, one has to say that Justice Scalia has done a very good job of it.
Clive Crook also commends Barack Obama for a preference for “judicial modesty”, based on his reaction to the decision. Perhaps this is reading too much into whatever it is that the Senator may have said. As is well known, Barack Obama is a graduate of Harvard Law School (of which I also happen to be an alumnus). More than that, he was a member of the Law Review (a claim that, unfortunately, I cannot make myself).
Therefore, Senator Obama can be presumed to have an ingrained respect for the fact that, just as there can be two sides on political issues, there are almost always two quite legitimate sides on legal ones. Indeed, if Barack Obama were not running for president and had more time, I am sure he would be able to write an incisive law review article on this case. Many such articles will doubtless be written in the future by serious scholars on both sides.
Roger Algase
Posted by: algasema | June 30th, 2008 at 2:16 pm | Report this commentFurther in support of Justice Scalia’s interpretation of the right to bear arms as an individual, not merely collective, right, one could argue that the Second Amendment’s reference to a “well regulated militia” could mean a well armed militia. “Regulated”, for example, has the same meaning as “ordered”, which is in turn related to “ordnance”, i.e. arms. If individuals were deprived of the right to own arms, a “well regulated”, i.e. well equipped, militia would have been impossible.
It would be interesting to do more research into the composition of militias in the time of the founders, both from the point of view of manpower and weapons. Certainly, prior English history would seem to indicate that the existence of militias depended on the right of individuals to keep arms. My understanding is that, at one time, English subjects were actually required by the Crown to keep arms as individuals, so a militia could quickly be formed at a time when there was no standing army.
Of course, now, the US is not exactly without a standing army, so it can be argued that militias are entirely unnecessary. But that would still not overcome the argument that arms ownership was originally intended to be an individual right when the Second Amendment was framed.
Since this amendment has not been repealed, Justice Scalia’s argument that it should not be treated as a dead letter certainly has to be taken seriously, even by those of us who are strongly opposed to the gun lobby and everything that it stands for.
Posted by: algasema | June 30th, 2008 at 3:36 pm | Report this commentThe foregoing notwithstanding, I do not want to give the false impression that I agree with Justice Scalia’s ultimate conclusion. Even though I think that he has the better argument about the right to bear arms being individual, not collective, he is less convincing in trying to “decouple” the existence of this individual right from its dependence on the need for a militia in order to defend freedom, a need that clearly no longer exists.
Essentially, Justice Scalia looks at the notion of a militia as a metaphor for the right of self-defense in general, something that the Second Amendment does not mention at all. Where is the much vaunted conservative “strict constructionist” doctine in this?
Posted by: algasema | June 30th, 2008 at 5:32 pm | Report this commentalgasema and Justice Scalia,
The right to bear arms was intended as a protection of STATE’S rights, not individual rights. It was intended to allow for the quick formation of state militias, as a counterweight to the power of the federal government. This is the same model of a popular army still practised in Switzerland, where civilians buy their own assault rifles and keep them locked in their safes until called to reserve duty.
Since the United States is no longer a de jure federal, de facto confederate, union of free states, their is no longer any use for the second amendment, which is causing constitutional appendicitis. It can indeed be argued, as Justice Scalia has done, that the individual right to bear arms follows from the need to protect collective states’ rights (ie, the need to form popular militias). However, since those states rights — which amount to the right to uphold state sovereignty — are no longer valid, the individual right which follows from them is thereby nullified. QED
Posted by: RCS | June 30th, 2008 at 7:09 pm | Report this commentI apologize for so many posts. But the true meaning of the Second Amendment can be summed up very simply. It guarantees the right of each individual to join a militia. Nothing more, nothing less.
Without individuals having the right to bear arms, i.e. own a gun, it would evidently have been difficult or impossible to form a militia or participate in one at the time the amendment was adopted.
But the amendment mentions no other reason to bear arms or own a gun, and it was wrong for the Supreme Court majority to invent one, no matter how much of a tradition there may have been at the time of equating arms ownership with the right to self defense, or with freedom in general, and no matter how much gun owners may believe this now.
Posted by: algasema | June 30th, 2008 at 7:10 pm | Report this commentThe fact remains that the underlying circumstances that drove the creation of the 2nd amendment are now utterly absent. The very fact that militias were a central part of its framing demonstrates the anachronism.
It seems clear to me that this really is a case of finding arguments to fit the bias. With a plethora of arguments to be found on both sides, one can just (de)emphasise them accordingly.
Posted by: DKM | July 1st, 2008 at 10:42 pm | Report this commentThe Supreme Court has always been political, look at Dredd Scott, a decision which help start a civil war or Plessy vs Ferguson which solidified segregation for another 70 years. It reflects the dynamic nature of our society and also the fact that the consitution is a living document which has been amended 27 times. The 2nd amendment might have been a right for states to have armed militias, the 14th amendment(often called the incorporation amendment) made the first 10 amendments(The Bill of Rights) personal rights. While it has not been fully implemented, the doctrine of Incorporation has thus been used to ensure, through the unwieldy and unexpected means of the Due Process Clause instead of the Privileges or Immunities Clause, the application of nearly all of the rights explicitly enumerated in the Bill of Rights to the states. All the Supreme Court has done in this most recent ruling is continue the process of Incorporation.
Posted by: Russell Welch | July 3rd, 2008 at 6:26 pm | Report this commentWhile I share Mr. Crook’s concern that the “educational quality of the [U.S.]’s workers is starting to decline,” and thus appreciated his well articulated piece in the July 7 FT, “America’s human capital is tested,” he left out one important factor that may be contributing to the “tailing off” of the quantity of America’s college educated workers. The cost of attending a four year college has skyrocketed in the past 15 years, pricing many of America’s middle- and lower-class families out of sending their children to college. Even with a wealth of government-backed student loan programs in the U.S., the daunting post graduation repayment periods just do not fit the budget constraints of many American families, especially if they planned to put more than one child through college.
Posted by: Halsey Lea | July 9th, 2008 at 2:22 pm | Report this comment