Tag Archives: Supreme Court

The Supreme Court Must Ultimately Save Us From Second Amendment Genocide

gunlawsWe are trapped in a nightmarish, escalating civil war in which gun nuts, bolstered by the otherwise sensible people who support them in this national insanity, battle against those who recognize that we can we never hope to acceptably reduce gun violence until gun ownership is dramatically reduced.

Yes legislative action can blunt the damage a bit. We could and should prohibit semi-automatic weapons, as well as deadly ammunition and large capacity magazines. We could and should improve our mental health testing and strengthen background checks. We should stop shielding gun manufacturers from liability. But honestly, even all of these would not do nearly enough. These sort of legislative actions are merely the band aids we apply since we know we have no chance to obtain the life-saving cure we desperately need. In the case of our gun epidemic, that panacea is a radical gun-ectomy to remove all cancerous firearms from private hands.

Some think that repeal of the Second Amendment is a cure. But the reality is that we are so collectively obsessed with guns that we will never repeal our Second Amendment, no matter what the cost in lives. We could parade piles of bullet-ridden corpses down every American street every day and we would still stubbornly insist that no cost is too high to ensure our god-given right to bear arms. And even if we did, removing this right would do nothing affirmative to limit guns. States would only be free to pass their own similar gun-protection amendments.

But I think there is one slim hope that we are not sufficiently considering. That hope is the Supreme Court. The Supreme Court, with the stroke of one landmark decision, could reinterpret the Second Amendment so as to not only open up legislative options but to force legislators to enact them. Keeping a sensibly interpreted Second Amendment in place would be far more valuable than simply repealing it.

To refresh your memory, the Second Amendment states that “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.” This is an extremely vague statement. Our forefathers made much of their writing intentionally vague so that future courts could reinterpret them in the context of their changing times.

Certainly times have changed with respect to guns. Since this amendment was ratified in 1791, guns have obviously grown in destructive power like the growth of a fire-cracker into a nuclear weapon. The population and our proximity to each other have also grown dramatically. The days of hunting as a necessity are long past. And the number of guns, as well as their destructive power, has grown millions of times over.

Yes, I know that just back in 2008 the Supreme Court ruling in Columbia v. Heller tremendously strengthened Second Amendment protections. Although that ruling was actually very narrow, it has been extended to justify the most generous interpretation. It can be argued that this ruling was as indirectly disastrous for sane gun reform as Citizen’s United was for campaign reform.

But the Supreme Court can, should, and does evolve on important, deeply held issues. It seemed that the Supreme Court had spoken clearly against civil rights in Dred Scott v. Standford and Plessy v. Ferguson. But they did eventually do the right thing in Brown v. Board of Education and Loving v. Virginia.

If our system is to work at all, we must not give up on the Supreme Court. We must hope eternal that at least one conservative member, in light of our exponentially deteriorating situation with regard to guns, might be willing to agree to subtle but dramatically consequential changes in our interpretation of the Second Amendment.

For example, the Supreme Court could rule that the phrase “a well regulated militia” is key and that it requires a far more limited distribution of weaponry. They could rule that the definition of “arms” must be far more restricted than our current interpretation. They could rule that “infringement” does not mean anything close to the current carte blanche in place now. They could clarify that their ruling in Heller does not justify extreme gun protections nor does it speak against sensible gun control.

Is this likely? Of course not. Is it possible? It certainly is and the impact of such a ruling could be huge. What we must do is not give up on this avenue even as we simultaneously pursue others. We must find justifications to bring a never-ending stream of cases before the Supreme Court to give them opportunities to put forth a modern, ethical, and rational interpretation of the Second Amendment. We could ask them, for example, to rule whether our current lack of gun control might actually violate our Second Amendment right to a well-regulated militia. We could ask them to rule whether it is consistent with the Second Amendment to allow certain weapons to be available for sport purposes only when provided at an approved facility.

Who knows, there may be a Justice right now who might now be willing to bend on this issue, if only given one more opportunity to make such a ruling. In any case, the reality is that until they do our Second Amendment genocide will continue to worsen.

Reinterpreting, not repealing, the Second Amendment is our best way out of this gun crisis that we have brought upon ourselves. Neither voters nor the repeal of the Second Amendment will force lawmakers to control gun proliferation. Just as with slavery and segregation, only a Supreme Court ruling can both allow and force them to do so.

 

Consitutution Thumping

scaliaI have a colleague who is really smart. Undeniably smart. He does his complex job extremely well and is deeply conversant in all spheres of intellectual discussion. He is also Bible literalist. He truly believes that he has arrived at all of his religious views through careful reading and unbiased interpretation of the Bible. In the end all he really does is cleverly pick and choose from the Bible to claim external validation of and authority for the beliefs he wants to embrace.

Substitute the word Constitution for Bible here and I could be talking about the late Antonin Scalia.

This is not an uncommon trap that smart people fall into in order to justify their biases and beliefs. Look at Ken Ham (see here). He invokes the Bible to “prove” his truly insane ideas and uses convoluted arguments to dismiss any Bible passages that contradict him. Ham claims that any Bible passages that can be interpreted to agree with him are “literal passages,” and any that do not agree are “historical.”

Just as Ken Ham and my colleague use the Bible as their inviolate source of authority that only they can interpret correctly, so do Conservatives like Scalia attempt to turn the Constitution into a secular Bible to serve their religious and conservative agenda. To them, the Bible and the Constitution are both sources of authority that they can invoke to support their dogmatic views. They claim that any interpretation that supports their views is literal or purist or originalist, while any that disagree are attempts to reinterpret or bastardize these written in stone authorities.

Since secular society does not accept the absolute authority of the Bible, religious fundamentalists seek to transform our Constitution into a secular Bible to serve as a proxy through which they can impose their religious views. Having established themselves as the protectors of the Constitution and as the authoritative interpreters of original intent, they portray the Constitution as infallible and unchangeable, like the Bible. No one is allowed to question its authority or that of those who profess to protect it.

By coopting the Constitution, religious fundamentalists have established an authority structure by which they can mandate and enforce social change according to their religious worldview. All they require is a Supreme Court that will continue to interpret the Constitution so as to maintain and expand their theocratic worldview. Antonin Scalia has been their great champion in this effort.

There is a great deal of manipulative coded language that these religious fundamentalists employ to market their reimagining of the Constitution. Foremost, they preach the absolutism of original intent. This is actually a phrase first adopted by Bible literalists to justify their interpretation of the Bible in the same way that religious fundamentalists seek to own the Constitution.

Even if it were possible to interpret original intent, this is neither practical nor desirable. The very idea is antithetical to what was almost certainly the clearest original intent of the founders that the Constitution remain a fluid and responsive document that can be continually reinterpreted to best meet the needs of a growing and changing nation. This view has actually gained widespread acceptance in Canada and formalized as their “living tree doctrine” which mandates that their constitution remain organic and be progressively reinterpreted to adapt to changing times. However, in America fundamentalists continue to try to reshape the Constitution into their own likeness and then cast it in stone.

Ironically, those who seek to control us incessantly warn about “activist judges who reinterpret the Constitution.” They tout the intellectual purity of Supreme Court justices like Scalia who “uphold the Constitution” according to “first principles.” In short, if you hear people invoking the Constitution and ranting about Constitutional first principles, be very wary.

Supreme Court judges like Scalia who claim to rule according to original intent are as deluded or as deluding as Ken Ham. Every interpretation of the Constitution is unavoidably colored by current culture. Every ruling is necessarily constrained and shaped by the many rulings that form a chain of precedent reaching back eventually to the Constitution. But that chain of legislative rulings may have drifted far, far away from original intent, as we saw most recently in the long, twisted chain of rulings that have taken us to Citizens United, a ruling so completely in contradiction to “first principles” as to be considered almost comical. I call this process of judicial drift from one precedent to the next until it has drifted far out to sea, “judicial brainwashing.”

Ironically, these same patriots who are overwhelmingly concerned with upholding the purity of original intent when interpreted according to their religious ideals are the first to push for Constitutional changes when they find the Constitution insufficient to their ends, as in pushing for a Constitutional Right to Life amendment.

Does this mean that original intent does not matter? It certainly does. As Garrett Epps pointed out in his excellent article “Stealing the Constitution” published in the February 7, 2011 edition of The Nation magazine:

“Serious originalist scholarship is very useful as one way of learning more about the Constitution. But in the hands of judges like Antonin Scalia or demagogues like Glenn Beck, it is really a kind of intellectual weapon…”

Antonin Scalia was the Ken Ham of the Supreme Court. If he truly cared about original intent, he would have acknowledged, for example, that our forefathers could never have imagined let alone intended to protect modern weaponry. The most they might have known was that this new innovation called the “flint-lock” was soon to appear. They could never have imagined or factored in the horrific killing-power of modern weaponry. But instead, what Antonin Scalia did was focus on the word “the” in “the right to bear arms” as the key concept in his extremist interpretation. Antonin Scalia, like Ken Ham, was a deeply self-deluded individual.

Our Constitution is a tremendously important statement of principles. However, in truth there are many countries with similarly admirable Constitutions. It is only the high court system of a nation, and how it interprets and enforces that Constitution, that makes it a great nation or a poor one.

The Constitution might just as well be a Rorschach drawing or Simon and Garfunkel lyrics for that matter. Either of these alternatives might be just as good in the hands of wise men or just as abused in the hands of ideologues.  Antonin Scalia may have been smart, but he was not wise. We can only hope his successor will not be so susceptible to Justice Scalia’s insanely flawed moral and intellectual reasoning.