Saturday, January 08, 2011
Judicial Bombs
Jerry Coyne and I are in complete agreement: Antonin Scalia is an ass.Scalia is fiercely intelligent and a respectable jurist ... but that doesn't save him from being an ass.
Jerry quotes a question posed to Scalia in the California Lawyer (
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?Let's rework that a tad:
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.
In 1787, when Congress was debating and ultimately proposing the 2nd Amendment, I don't think anybody would have thought that the right to bear arms applied to AK-47s or certainly not to Saturday Night Specials. So does that mean that we've gone off in error by applying the 2nd Amendment to both?And yet, Scalia (incidentally, the justice who has been there the longest) recently concurred in a (marathon) decision that found that the right to own modern handguns was protected under the 2nd Amendment and applied to state and local governments by the due process clause of the 14th Amendment, with nary a word about the original intent of the Framers, who necessarily were neither contemplating nor voting for the right to own revolvers and semiautomatic and automatic weapons.
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require that you allow anything except muzzle-loading black powder muskets, pistols and cannon. The only issue is whether it prohibits banning modern weapons. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to permit weapons never contemplated by the Framers, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.
But maybe the Framers of the 2nd Amendment were contemplating state-of-the-art personal weapons? Well, not quite! The 2nd Amendment reads:
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."Arms" would seem to be a broader category than "personal weapons" ... along the lines of what our "Armed Services" have access to. In the 1790s, private individuals, such as ship owners, could own and deploy the ultimate "arms" of the day, muzzle-loading cannons.
There are thousands of people in this country alone who could fashion at least crude atomic bombs, if only they had the plutonium or uranium-235. Can the government place limitations on the sale and manufacture of those items?
Can we imagine Scalia voting to make the government give back an atomic bomb to the nice gentleman in the head scarf?
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Comments:
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And today, one of those crazy arm-bearers murdered a US congresswoman--Gabrielle Giffords of Arizona, along with several others including a Federal judge.
I just saw an update saying Giffords was not among the dead, but was seriously wounded an in surgery.
Jared Lee Loughner has been identified as the suspect. The Huffinton Post has some "videos" from someone by the same name. He appears to be a loony.
With all the parsing of the 2nd Amendment, I've often thought too little attention has been paid to "well regulated." Regardless of whether a "militia" is an individual or a collection, the Founders clearly wanted it to be well regulated (which implies that there is such a thing as a poorly regulated or unregulated militia-- what would those look like?). My unschooled lay interpretation is that this would permit rules for inventory control and proficiency requirements, at a minimum. The 2nd Amendment is the only place in the Constitution where the word "regulate" (or any of its forms) actually appears. Given that we have vast regulatory bureaucracies based on the General Welfare and Interstate Commerce clauses, it is odd that there is so much resistance to regulation in an area where the Constitution explicitly requires regulation (and "well regulated" at that!).
[I am aware that "well regulated" may have some historic or arcane meaning specific to the military that is different from its modern meaning that would nullify my point. Can any of the lawyers or historians here help me out?]
[I am aware that "well regulated" may have some historic or arcane meaning specific to the military that is different from its modern meaning that would nullify my point. Can any of the lawyers or historians here help me out?]
# posted by 
: 2:41 PM
: 2:41 PM
Why is Scalia "respectable"? The kind of dishonesty you demonstrate there is nothing new in his record. His originalism is just a fig leaf to cover whatever result he wants or to be forgotten as convenient.
# posted by : 11:21 PM
: 11:21 PM
Chris:
Indeed, there is a school of constitutional interpretation (sometimes adhered to by SCOTUS) that holds that nothing in the Constitution is surplusage ... i.e. that the reference to a "well regulated militia" is a limiting statement on the "right to bear arms". I'm unaware of any historical context that would make that phrase mean anything other than "an officially organized militia with all the command structure that implies". The typical response of people in favor of "gun rights" is to ignore the phrase.
Mike:
Scalia is a "respectable" jurist for the same reason most things are "respectable" ... enough people with enough power do it openly ... and don't scare the horses.
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Indeed, there is a school of constitutional interpretation (sometimes adhered to by SCOTUS) that holds that nothing in the Constitution is surplusage ... i.e. that the reference to a "well regulated militia" is a limiting statement on the "right to bear arms". I'm unaware of any historical context that would make that phrase mean anything other than "an officially organized militia with all the command structure that implies". The typical response of people in favor of "gun rights" is to ignore the phrase.
Mike:
Scalia is a "respectable" jurist for the same reason most things are "respectable" ... enough people with enough power do it openly ... and don't scare the horses.
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