Saturday, June 28, 2008

The Role of the Court

You can practically see the spittle from the author on this column in the Washington Post about the Heller ruling.  But even with all of its venom, it misses the point entirely.  Here’s the closing:

The court has spoken, but citizens and lawmakers should base future gun-control decisions—both personal and political—on something more substantive than Scalia’s glib opinion.

That “glib opinion” was the opinion of five justices of the Supreme Court and it sets precedent for 2nd Amendment laws across the nation.  The author is saying that people should ignore the Supreme Court and the Constitution and make “both personal and political” decisions based on his opinion. 

While I’m fine with his assertion about personal decisions, political decisions must comply with the Constitution.  I don’t care how much someone might think that a total hand gun ban is a good idea.  Such a ban is unconstitutional.  If the author wants to make such a ban constitutional, then he needs to set about amending the constitution.  We have a process for that. 

This is a point that many of our anti-gun folks seem to be missing.  It is not the role of the Supreme Court to set policies.  Their role is simply to compare a given law to the U.S. Constitution and decide if the law is permissible within the confines of that document.  For example, if the Army decided that it would save a lot of money if we had the soldiers live in the spare rooms of the civilian homes around a base, it doesn’t matter how much the Justices may agree with the idea, it is clearly unconstitutional.

(7) Comments
Posted by Owen at 1001 hrs
Firearms + Law + Politics + Politics - General

  1. I’ll be the first to say it.  Arthur Kellermann makes himself look like a real piece of shit in that opinion article.

    Posted by .(JavaScript must be enabled to view this email address) on June 28, 2008 at 1039 hrs


  2. I’m not taking a side on this, but I do see where the concerns from some anti-gun groups stem from.  Their argument, which is well-articulated in Justice Stevens’ dissenting opinion, is that the Court basically disregarded (or grossly misinterpreted) the Court’s ruling in U.S. v. Miller, and set about on the course of doing its own thing.  Whether one agrees with that argument or not, one can still acknowledge that it is not entirely without merit or foundation.

    Accordingly, I think their surprise that is, from their perspective, a group of people (conservatives) that constantly bitches about judicial activism and how it dishonors precedent is now hailing a decision that could well be construed as both activist and one that dishonors precedent.

    This ruling, while the law of the land, is hardly a slam dunk.  It basically says an absolute ban is unconstitutional and then punts the rest into the court of reasonableness - and as we all know, society’s standard of what is reasonable changes over time, and certainly has shifting in a direction in favor of restrictions on ownership.

    Given the court’s previous ruling in Miller coupled with the dissents of Stevens and Breyer, there’s little reason for conservatives to believe that the Heller ruling could not or would not be overturned at some point in the future.  Just as some would argue that this court blew off Miller, so too could a future court blow off Heller and argue that this court misapplied or ignored earlier precedent.

    Such is the nature with all 5-4 rulings.  If this were an 8-1 or a 9-0 ruling, I think matters might be different.  But no 5-4 ruling will ever be safe from being revisited, especially in an era when both conservative and liberal jurists are so willing to elevate their own opinions above those who have come before them.

    Posted by Recess Supervisor on June 28, 2008 at 1332 hrs


  3. Accordingly, I think their surprise that is, from their perspective, a group of people (conservatives) that constantly bitches about judicial activism and how it dishonors precedent is now hailing a decision that could well be construed as both activist and one that dishonors precedent.

    Here’s where I disagree.  While the progression of common law is important and the body of previous rulings should be taken into account, ultimately the court must reconcile the law against the Constitution.  If the case law has strayed from the Constitution, then it is not activism to ignore it and go back to our founding document.  It is correcting an error.

    Posted by Owen on June 28, 2008 at 1337 hrs


  4. I agree completely.  I think in this case, there’s question about what that occurred or not, and the questions held seem to be related to how one is naturally inclined to view the Second Amendment.  That is precisely why I think this opinion is hardly the sweeping victory (or staggering defeat) that some believe it to be.  Just as this court may have jettisoned some case law to deliver an opinion more in line with its reading of the Constitution, so too could a future court do the same thing - but in the other direction.

    Certainly the majority opinion was a self-absorbed one - they were very interested in spelling out how exactly they chose to read and interpret the Second Amendment, relying less on precedent and more on their own semantic breakdown of the language.  That’s fine and well - it’s their prerogative.  But just as they traversed that path, so too could nine justices a generation from now and reach entirely different conclusions.

    What concerns me about the Heller opinion isn’t the outcome - I’m fine with individual ownership of firearms, and I agree that the D.C. gun law was overly broad.  My concern is the process the court appears to have used to rationalize its position.  Because it seems so unreliant on previous opinions, it may encourage future courts to also walk down that path.

    Posted by Recess Supervisor on June 28, 2008 at 1702 hrs


  5. RS,

    Precedent should not automatically assumed as sacrosanct. If a prior decision is wrong then let it be reversed. Is the court obliged to recognize Dredd Scott as a precedent worth upholding?

    Posted by Marcus Aurelius on June 29, 2008 at 2151 hrs


  6. I agree, Marcus.  But “wrong” is often a very individual matter.  Should a future court overturn this ruling, then let’s both agree that such a ruling is no more or less activist than this one.  It’s simply a new court using its collective judgment to decide that, in its opinion, this ruling was also wrong.

    But something tells me many conservatives wouldn’t respond that way, just as many liberals right now are not.

    Posted by Recess Supervisor on June 30, 2008 at 0325 hrs


  7. very well made it. All information on this blog is represented

    Posted by Kyriakos on July 03, 2008 at 0459 hrs


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