The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

A Member of the Law Professor Blogs Network

Saturday, June 28, 2008

The astonishing Justice Stevens
Tom Smith

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.

| Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference The astonishing Justice Stevens
Tom Smith


I get the same reaction when I read anything by Justice Stevens. It is the same logic Stevens used in the regulatory takings cases,e.g., Tahoe-Sierra Pres Council v Tahoe Regional Planning. By his thinking, the Constitution cannot possible be intended to obstruct the government from anything he deems good policy. That is just the imperial, condescending thinking the Framers sought to guard against.

Heller and the 2nd Amend illustrate a key contribution the Framers had and their greatest contribution to mankind: elected legislatures fall prey to the same arbitrary thinking that monarchs do. The English Bill of Rights protected the right to bear arms only against encroachment by the Crown. Parliament had no limits.* In fact, the English Bill of Rights preserves the rights of Parliament, not the individual. The Framers very clearly described who the sovereign is ("the people") and made clear that rights are personal to the individual. Stevens, along with Breyer, are very bright and well-meaning. They are also condescending bien pensants who do not respect democracy or consensual government. To them, the Constitution empowers goverment, not limit it.

You can bet that Stevens and Breyer will find almost any regulation of firearms to be "reasonable." The right to bear arms is a Constitutional right. How is it most people need a "license" to bear arms?

* As we should all note, almost all the liberties stated in the English Bill of Rights have since been abrogated by Parliament -- including the right to bear arms.

Posted by: GySgtDad | Jun 28, 2008 1:38:09 PM

I will say that I was quite surprised to read that Barack Obama believes (now, anyway) that firearm possession is an individual right protected by the U.S. Constitution. That he felt compelled to say that is a testament to the success the NRA and other pro-gun groups have had in turning that debate around in the past 15 years or so. Of course, the remainder of Sen. Obama's statement, which focused on expanding possession restrictions, belies his true thinking on such matters. So, it's a right but one that provides no check on policy. Funny kind of right, that.

Posted by: jeff | Jun 28, 2008 5:46:07 PM

To get a sense of the absurdity of the dissenters' positions, try taking the positions set forth in what they wrote and applying them to the First Amendment.

Posted by: krome | Jun 30, 2008 8:59:12 AM