Saturday, June 28, 2008
Is this as dumb as it sounds?
The Court properly disclaims any interest in evaluating
the wisdom of the specific policy choice challenged in this
case, but it fails to pay heed to a far more important policy
choice—the choice made by the Framers themselves. The
Court would have us believe that over 200 years ago, the
Framers made a choice to limit the tools available to
elected officials wishing to regulate civilian uses of weapons,
and to authorize this Court to use the common-law
process of case-by-case judicial lawmaking to define the
contours of acceptable gun control policy. Absent compelling
evidence that is nowhere to be found in the Court’s
opinion, I could not possibly conclude that the Framers
made such a choice.
This is from Stevens's dissent in Heller at 46. Can he really be so far from getting it? Is he not aware that that is what constitutions do, limit the "policy choices" that can be made by legislators (and one hopes by judges as well)? You can imagine making the policy choice that criminals should just be imprisoned without a trial, or to dispense with that pesky passed by both houses and signed by the President thing, but you don't because the Constitution says you shall not. No doubt many sensible policy choices are not allowed by the Constitution, and uncontroversially many unspeakably stupid choices are allowed by the Constitution. That's all the Constitution does, year in and year out -- allow some policy choices and not others! Not only would the majority "have us believe" that the Constitution "limits policy choices." One would have thought the majority quite took it for granted one already knew that!
I confess I did not make it through Steven's dissent. The part of my brain that suffers when the intelligence is insulted was whimpering so pathetically, I just had to stop. The faux-originalism of the dissent was too much for me. I am quite ready to reach a counter-intuitive conclusion if logic and/or even history supports it. But when an argument feels like bounding from one cloud to the next, with lots of arm-waving, self-congratulation and conclusory language all there is for support, I think you've just got to take mercy on yourself and stop reading. It would be a lot more honest just to say, look, the Second Amendment may have meant an individual right back in the day of the Minuteman, but now in the day of gangstas and nines, it has evolved (and if it hasn't we are evolving it) to mean something else. Then the debate is about whether that sort of interpretation is legitimate. Instead, we get cruel and unusual punishment of logic and the brains of readers. I suppose it says something for the victory of originalism that even Stevens feels he must try his hand at it. Perhaps it is as Ken Starr has said, We are all originalists now.