Our rulers' whims

Matthew Hoy
By Matthew Hoy on June 27, 2008

The Supreme Court yesterday, thanks to Justice Anthony Kennedy getting up on the right side of the bed, affirmed that the Second Amendment says what it means and means what it says. For some insightful analysis of the case, I refer you to Dave Kopel, who was one of the lawyers sitting at the counsel table when the case was argued before the Supreme Court.

Also, there's this excellent bit of analysis from National Review:

What’s more, the opinion explicitly recognizes the difference between legislating and judging. In the ruling’s final paragraph, Scalia writes that the majority takes “seriously the concerns raised by the amici who believe that prohibition handgun ownership is a solution” to gun violence. However, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Scalia’s opinion, which is in many ways quite narrow, leaves ample room for legislation regulating concealed-carry, the types of firearms that are permissible, and the conditions under which firearms are sold. Scalia reaffirms that the Supreme Court determines not whether policies are good, but whether policies are consistent with the Constitution.

This is exactly why today's opinion is jurisprudence and yesterday's child-molester case was legislating. The constitution specifically addresses gun ownership and recognizes the attendent rights that go along with it. The constitution says nothing about which crimes are death-penalty-worthy and which are not -- that's a public policy decision.

Over at the Volokh Conspiracy, Jim Lindgren refers to Justice Stephen Breyer's dissent as "self-refuting." Breyer suggested the court subject the Second Amendment right to a balancing test. The enumerated right to "keep and bear arms" on one hand would be balanced against the benefits of gun control laws. Lindgren points out that Breyer's balancing of those two positions is incredibly dishonest -- because he gives the right nearly no weight and gives a lot of weight to the perceived (not actual) benefits of gun control.

Breyer's dissent is far more worrying than Lindgren makes it out to be. The mere idea that a justice would advocate a balancing test (as opposed to a standard of strict scrutiny) is outrageous. Read Breyer's dissent and substitute the First Amendment's "freedom of speech" for the Second Amendment and be shocked. Do we really want courts deciding if allowing your speech (political or otherwise) should be balanced against some arbitrary standard of the public good?

Again today, both senators John McCain and Barack Obama were on the same side in their analysis of the court's opinion.

Which presents us with a quandry for both of the candidates.

For Barack Obama, for two days in a row, he has found himself on the opposite side of his "model judges." I'm sure this is part of his march to the middle for the general election, but it would be nice if our mainstream media would ask him how committed he is to the Breyer-Ginsburg-Souter model considering what's happened the past two days.

Sen. John McCain doesn't get a pass here either, because today the same 5-4 majority ruled part of McCain's campaign finance reform legislation -- the so-called "millionaire's amendment" -- was unconstitutional. All four of McCain's models -- Scalia, Thomas, Alito and Roberts -- came down against the campaign finance law.

I predict that Washington Post columnist George Will will make a big deal out of this disconnect on McCain's part in this Sunday's column. (It came over the wire yesterday, so don't be too impressed by my psychic abilities.) I think what it comes down to is who are the people whom each potential president is going to have help with the vetting of Supreme Court nominees. McCain has tapped former solicitor general Theodore Olsen for that role -- a fact that I think conservatives can take a lot of solace in. As far as Obama goes, there is little doubt that he will tap anyone who isn't an ultraliberal to the court -- fully expecting him or her to reverse the Heller decision or act as another vote to further restrict the decisions of the people's representatives when it comes to the use of the death penalty.


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June 2008



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