The supreme court's pro-gun radicalism puts us all in the crosshairs
The supreme court's pro-gun radicalism puts us all in the crosshairs
The court has made it harder for Americans to forge a sensible political solution to a horrific national problem
https://www.theguardian.com/commentisfree/2019/aug/20/the-supreme-courts-pro-gun-radicalism-puts-us-all-in-the-crosshairs?utm_term=RWRpdG9yaWFsX0d1YXJkaWFuVG9kYXlVUy0xOTA4MjA%3D&utm_source=esp&utm_medium=Email&utm_campaign=GuardianTodayUS&CMP=GTUS_email
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From 1791 until 2008, the supreme court refused to touch gun-control laws. True, the second amendment spoke of a right to bear arms, but it did so in conditional fashion: “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.” The roundabout formulation was striking: the constitution does not limit other rights – such as freedom of speech – to any particular purpose or function.
Attentive to this language, the supreme court long interpreted the second amendment as protecting a collective right to participate in a militia. In 1939, the court unanimously upheld a congressional ban on sawed-off shotguns, arguing such weapons lack “any reasonable relation to the preservation or efficiency of a well-regulated militia.”
All that changed in 2008 with the court’s 5-4 decision in District of Columbia v Heller. In striking down a Washington DC ban on handguns in the home, the court’s conservative majority held for the first time that the second amendment “protects an individual right to possess a firearm unconnected with service in a militia.”
Relying on an “originalist” reading of the constitution, Justice Scalia insisted the supreme court had essentially misread the Second Amendment for 200 years. Originalists claim that reading the Constitution as understood at the time of its adoption makes a judge a more faithful interpreter of constitutional text, although in reality this approach guarantees no such thing. To the contrary, it permits judges to cherry-pick history to reach virtually any outcome, or, as in this case, to radically overturn decades of received wisdom in the name of constitutional “fidelity.”
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No less troubling is an opinion that Justice Kavanaugh wrote during his tenure as a judge on DC’s federal appellate court. Applying the Court’s reasoning in Heller, Kavanaugh argued that any ban on semiautomatic rifles should be struck down as unconstitutional.
That bears repeating: A ban on semiautomatic weapons would be unconstitutional. Using “text, history, and tradition” as his guides, Kavanaugh concluded that semiautomatic rifles “have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses.”
Why does the fact that we’ve permitted such weapons in the past mean that we are constitutionally tethered to them now? The logic again follows straight from the disastrous Heller ruling.
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