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SCOTUS, guns, the ACLU and stuff

Conservatives and liberals both found plenty of stuff to bitch about, but I actually thought this Supreme Court term was a pretty good one. I found myself agreeing with their decisions more often than not. (Hey, does that mean I think like Anthony Kennedy? It certainly doesn't seem so. Oh well.)

The biggie for me of course was Thursday's decision in the Heller case striking down D.C.'s gun ban. Believe it or not, this case represented the first time in the republic's history that the Supreme Court has unambiguously weighed in on the question of whether the right protected by the Second Amendment is an individual right. I suspect one of the reasons this has only been addressed in the 21st century is that earlier in our history, folks would have thought the question ludicrous. An individual right to bear arms was taken for granted by our founders, as well as by generations to follow.

I've always found this "collective" right theory to run afoul not only of the framers' intent, but also of plain common sense, and it seems that in recent years, the consensus of legal thought has turned against it as well. Needless to say, I'm glad to see this bogosity finally put to rest. The Heller decision didn't go as far as I might like in my wildest fantasies, but it's certainly more than I realistically expected.

One thing I have to wonder is whether this ruling will have any impact on the ACLU's ridiculous and senseless official position (if indeed such it can be called) on the Second Amendment. I like the ACLU on balance, and am a dues-paying member. But I'm also a member of the NRA, because I think the ACLU dropped the ball on this very important right, and their statement on the matter to be asinine and downright embarrassing.

Their whole raison d’être (a little Mexican lingo there for diversity's sake) is to zealously safeguard the Bill of Rights -- the first ten amendments to the Constitution. Oddly, however, one of the ten gets handled a whole lot less expansively than the others, to say the least.

We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government.

I truly don't understand how an intellectually honest reading of the Second Amendment, taken together with the writings of the founding fathers, including the Federalist Papers and the other contemporary influential works on democratic theory, can support such a view. Anyway, I guess it's a moot point from now on. The supreme judicial body in the land has ruled that an individual right to bear arms does exist, so will the ACLU amend its position? Is it really in their nature to take a narrower and more constricted view of civil liberties than the Supreme Court? And if so, who needs 'em?

Even more ludicrous is the following argument:

Most opponents of gun control concede that the Second Amendment certainly does not guarantee an individual's right to own bazookas, missiles or nuclear warheads. Yet these, like rifles, pistols and even submachine guns, are arms.

The question therefore is not whether to restrict arms ownership, but how much to restrict it. If that is a question left open by the Constitution, then it is a question for Congress to decide.

Christ, aren't they embarrassed to write this kind of crap? I know full well they have some pretty heavyweight legal minds within their ranks. Is this the best they can come up with? Or is their position so inherently weak and hard to justify that anyone attempting to do so would sound foolish?

The problem with the above argument should be obvious. Allow me to illustrate:

Most proponents of free speech concede that libel, slander and perjury should not be allowed, so the question becomes not whether to regulate speech, but rather how much. Therefore, the ACLU is staying out of it, and will allow Congress to decide the proper amount of regulation, even if it means that residents of D.C. live under an effective total ban against criticizing the government.

Different amendment, same argument. Pathetic. One can hope that today's ruling might prompt the ACLU to genuinely rethink their stand on gun control, and hopefully come up with a position that's less, well... retarded. Probably too much to ask for, though. My prediction? Their already dismally weak argument will simply become weaker still, now that the thin, fictitious fig leaf of "collective rights" has been taken from them.

As for other implications, hopefully we'll start to see some lawsuits challenging prohibitive gun regulations in the handful of states (including my own) that still lack liberalized firearm laws.

And what about the upcoming election? Well, a Republican friend of mine had a surprising opinion. He was hoping for the D.C. ban to be upheld today. Why? His reasoning was that a repudiation of an individual interpretation to Amendment II would energize a powerful yet complacent gun lobby to turn out in force and sweep the GOP back into power.

I have to say, I'm glad he was disappointed. I wouldn't give 20 bucks to see the Republicans back in Congress, much less a constitutional right. But he does have a point, though. I think the gun lobby played a huge role in the GOP tsunami of 1994, but that they've been fairly complacent ever since. I wonder whether the fact that this ruling was so close (5-4) will help motivate the NRA crowd to turn out for McCain? We'll see, I guess.

Meanwhile? Drinks are one me.

UPDATE: Looks like the dissent comprised some awfully shoddy legal work. Really, it's astonishing this case was as close as it was, if this is the best they can do.

MORE UPDATE: I love this post. Maybe the 5-4 split will resonate after all.

How could four of our top justices feel obligated to gut not the Third or the Twentieth but the Second Amendment of our Constitution? How could they believe it wise to insert the State into every home, every dark alley, every dangerous situation by removing the basic human right of protection from us? We’re Americans; we don’t lose rights we gain them and extend them to others. Heck. the same SCOTUS in its wisdom decided to give our rights to al-Qaeda this term. The least it could have done is allowed Americans to have the rights embedded in their own Constitution.

At least 6-3 could have been written off by saying that 3 of the old coots had forgotten what it’s like not to be protected day and night by Secret Service details - luxuries that most of us don’t have. But there is no excuse for 4.

EVEN MORE UPDATE: Good point from Patterico:

If the Democrats had appointed just one more Justice to the U.S. Supreme Court, there would be no individual right to possess firearms in the United States of America.


I have them at TWO and TWO in their most recent four decisions - Heller (gun rights) and slashing Exxon-Mobil's punitive damages in the Exxon Valdez disaster were GOOD, The Kennedy vs Louissiana (nixing the death penalty for child rapers) and Boumediene v Bush (granting foreign terror suspects access to U.S. courts) BOTH very BAD.

The Boumediene decision especailly puts Americans at risk.

I´m very curious about Obama´s attitude towards gun possession when he becomes president. Now he makes concessions, but what he´ll do after elections is written on an other paper.

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