"Welcome to the living Constitution, Justice Scalia"

Jack Balkin, who agrees with yesterday's decision in the Second Amendment case, adds this ironic commentary:

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans' minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.

Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.

Welcome to the living Constitution, Justice Scalia. We couldn't have done it without you.

Elsewhere, Andy Siegel adds: "To a degree that current political and judicial rhetoric masks, all of the current Justices share a conception of the judicial role that gives Courts the right and the obligation to independently assess the meaning of ambiguous constitutional rights guarantees and then follow their own best judgment, letting the chips fall where they may. The Justices have differed on their vision of the society that the Constitution's rights provisions are designed to protect, not on their vision of the judicial role."

In other words, we're all activists now.


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What New Hampshire can teach D.C.

"the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008."

The Supreme Court doesn’t get the easy cases, and people will still disagree about the results. Four justices do not think my right to keep and bear arms is protected by the Second Amendment, but five do agree with me; how can we be sure that is judicial activism, and not just reality in understanding the Amendment?

Are we to believe that in 1791 the capital city of the USA had a law prohibiting possession of handguns? In those days, gun control was known as something that the tyrannical King of England dreamed up to consolidate his control over the colonies, and he had about as much success with that law as the USA has had with its thousands of gun control laws. The ancient language loophole that has allowed otherwise intelligent people to believe - or, claim to believe - that only state military organizations have the right to have firearms only occurred because the issue was so well understood and universally known when the Constitution was written. As noted by some critics of the Second Amendment, there was a proposed version that included a definition of militia as all the people; that was rejected, probably because it was considered non-essential, and perhaps to avoid getting bogged down in details of gender and age. The Amendment as approved says that the right of the people to keep and bear arms shall not be infringed, and the reference to the militia does not materially change that; "We the people of the United States..." have the right to keep and bear arms - we are the same people in the Second Amendment as elsewhere in the Constitution, we had that right before the Constitution was written, and we have it now. Our Supreme Court had an opportunity to take that right away from us, and they wisely chose to let us keep it.

It is of course true that over the last several decades, as anti-gun politicians have sought to blame gun owners for their own failure to protect the people against criminals, and thousands of gun control laws have been enacted to no avail (the values, we might say, of 1975), we gun owners have organized to resist this foolishness, with considerable success. But, despite our numbers and enthusiasm, if the facts did not support our position that gun control is counter-productive, our right to keep and bear arms would have been overridden under the doctrine of clear and present danger. I’m so old I remember the censorship wars of the 50's and 60's, and the argument was over whether there was a "clear and present danger" if we let people look at lurid pictures and read Tropic of Cancer - and if that justified restriction of free speech. When all indications are that crime rates decrease when states pass concealed carry laws, and increase with restrictions on gun ownership, the clear and present danger is clearly in the other direction. We can see right here in our own region that New Hampshire and Vermont (with its "Vermont-style" concealed carry, no permit required) have much lower crime rates than Massachusetts and New York, which still rely on gun control laws despite the results. Further, if the Second Amendment really only protected a collective right, we would not have seen the law review articles, and the conferences of historians (where, I’ve heard, it has been difficult to find competent academics to argue the collective rights side) supporting the individual rights concept. I have read papers by Lott and others, and I would be ashamed to put my name on the papers opposing Lott’s work, full of selected data, and sloppy statements, and wishful thinking, just "say it ain’t so, professor" but it is so; we NRA members are not imposing our will on a subservient population, ignoring their suffering to enable us to have our own way, we are promoting the general welfare for ourselves and our neighbors when we support laws that really reduce crime. Remember, the people who do not own guns are still protected, unless they choose to paint a sign on their home saying that they do not have guns, because otherwise the crooks will not know that.

If the people in DC would like to have low crime rates, as we do have now in New Hampshire, let them send some of their politicians here - temporarily: welcome to New Hampshire now go home - to observe how we do that, and see, if they can see, and learn, if they can learn, and go home and work, if they can work, to make DC more like New Hampshire, instead of lobbying for national laws to perpetrate their failed policies upon the rest of the country.