Gun Shy: Four Supreme Court Justices Make Case Against Constitutional Rights

· Wednesday, June 30, 2010

On Monday, the Supreme Court ruled that the Second Amendment applies to states and cities as well as the federal government. Judging from their objections, the four dissenters were still reeling from the court's landmark 2008 decision recognizing that the amendment protects an individual right to keep and bear arms.

In their dissenting opinions, Justices John Paul Stevens and Stephen Breyer (joined by Ruth Bader Ginsburg and Sonia Sotomayor) worry that overturning gun control laws undermines democracy. If "the people" want to ban handguns, they say, "the people" should be allowed to implement that desire through their elected representatives.

What if the people want to ban books that offend them, establish an official church or authorize police to conduct warrantless searches at will? Those options are also foreclosed by constitutional provisions that apply to the states by way of the 14th Amendment. The crucial difference between a pure democracy and a constitutional democracy like ours is that sometimes the majority does not decide.

Likewise, Stevens defends "state and local legislatures' right to experiment," while Breyer is loath to interfere with "the ability of states to reflect local preferences and conditions -- both key virtues of federalism." Coming from justices who think Congress can disregard state decisions about the medical use of marijuana because a plant on the windowsill of a cancer patient qualifies as interstate commerce, this sudden concern about federalism is hard to take seriously.

Another reason to doubt the dissenters' sincerity: They would never accept federalism as a rationale for letting states "experiment" with freedom of speech, freedom of religion or due process protections. Much of their job, as they themselves see it, involves overriding "local preferences" that give short shrift to constitutional rights.

Second Amendment rights are different, Breyer says, because "determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions." So does weighing the claims in favor of banning child pornography or depictions of animal cruelty, relaxing the Miranda rule, admitting illegally obtained evidence or allowing warrantless pat-downs, dog sniffs or infrared surveillance.

When they decide whether a law or practice violates a constitutional right, courts cannot avoid empirical questions. In cases involving racial discrimination or content-based speech restrictions, for example, they ask whether the challenged law is "narrowly tailored to serve a compelling state interest" and is the "least restrictive means" of doing so.

But unlike equal protection or freedom of speech, Stevens says, "firearms have a fundamentally ambivalent relationship to liberty." How so? "Just as they can help homeowners defend their families and property from intruders," he explains, "they can help thugs and insurrectionists murder innocent victims."

Every right can be abused, with results that are immoral, illegal or both. Freedom of speech can be used to spread hateful ideas, promote pernicious political philosophies, slander the innocent or engage in criminal conspiracies. If there were no potential for harm from exercising a right, there would be no need to protect it, because no one would try to restrict it.

The dissenters' most frivolous objection is that making states obey the Second Amendment "invites an avalanche of litigation," as Stevens puts it. Every day we hear about cases in which people argue that the government has violated their rights under the First, Fourth, Fifth, Sixth or Eighth amendment. Neither Stevens nor Breyer wants to stop this "avalanche." Only when the Second Amendment is added to the mix do they recoil in horror at the prospect that Americans will use the courts to vindicate their rights.

Stevens warns that "the practical significance of the proposition that 'the Second Amendment right is fully applicable to the states' remains to be worked out by this court over many, many years." But that's because the court for many, many years ignored the Second Amendment while gradually defining the contours of its neighbors in the Bill of Rights. There is a lot of catching up to do.

COPYRIGHT 2010 CREATORS.COM


Third-party content does not necessarily reflect the opinions of The Patriot Post.


Comments

kevin

Stevens comment, "Just as they can help homeowners defend their families and property from intruders," he explains, "they can help thugs and insurrectionists murder innocent victims.", shows just how far out of touch he and other liberals are - gun laws are proven to take guns from law-abiding citizesn, leaving only the 'thugs' with them.

Posted June 30, 2010 at 10:29:25 AM


Joe

Sadly, Stevens' comments don't just reflect being "out of touch", but, in that sense that seems to overwhelm many lifelong progressives, including all four dissenting on this opinion, being in a different world. The Stevens dissent read more like a break from reality that any kind of valid argument.

Posted June 30, 2010 at 12:00:40 PM


cretinissimo

Dissenters shot themselves in the left leg of doctrinaire liberalism.

The only substantive finding of both the DC and Chicago cases is that absolutge prohibition violates the Second Amendment.

Law suits contesting present and subsequent regulations will probably number in the dozens.

How many states will enact a constitutional amend-

ment stating in substance

No legislative nor executive authority shall

enact unreasonable regulations relative to

the acquision, ownership, use and transfer

of non-military weapons

Posted June 30, 2010 at 12:28:27 PM


Marcus

the government doesn't care one wit about families and properties. all it cares about is the potential for revolt and the power that revolt may have.

kevin's comment is a good one because it points out that the good justice stevens is reduced formulating argument based on opinion. the facts are too difficult to deal with. as in, what is the answer to the question, "which racial group(s)from which populated regions are statistically most likely to commit crimes with firearms?" the factual answers to that question are irrelevant to the liberal legal discussion, because enforcement of current and relevant pistol carrying laws might involve so-called profiling in certain urban regions of the country.

Posted June 30, 2010 at 12:33:11 PM


pete

Heard a comment on TV the other day about the Second Amendment being expressly enacted for Militias, but not for individual citizens.

If that is the case, MS-13, Crips, Bloods, Hell's Angels, and other organized/semi-organized gangs and "clubs" have more rights to have arms than I and my unaffiliated elderly neighbors.

I cannot believe that is what the founders had in mind when they argued the positive/negatives of enacting the second amendment.

Posted June 30, 2010 at 2:09:07 PM


Jon Savage

Excuse me,please? Am I to understand that it is o.k. to murder a living human being, defensless, just emerging from the Mother, with a scalpel---but it is 'contrary to good order' for me to disable, or kill,with a firearm a criminal attacking me? The vote in the SCOTUS should have been 9-0.

Posted June 30, 2010 at 3:44:44 PM


BJ

Jon, you said the vote should have been 9-0. No, there shouldn't be a vote at all. The very reason we have a "right" to keep and bear arms according to the founders has more to do with rising up against a despotic govt. Why then would we let that very govt have any say in our ability to keep and bear? Bill Orrielly said it was OK when they took the guns away during Katrina. Let me understand this-the very people we need the firearms to defend ourselves against can dictate gun policy?

The below list indicates the American values liberals stand for:

Late term/partial birth abortion

abortion with tax payer funding

larger govt

smaller less effective and weakened military

higher taxes

homosexual marriage

letting the greenie wackjobs influence legislation

amnesty for those that break into our country (as a voting base_

giving condoms to 9 year olds

etc, etc, etc

and of course they are also anti gun

all special agendas, all at an enormous price to society.

My only special agenda is that we need to live by the Constitution

The scum from obama down to our well meaning but ignorant liberal neighbors are well on the way to accomplishing their goal-the destruction of real America

Posted June 30, 2010 at 6:00:11 PM


James J. Bilenki Jr. (USN. RET.)

It the Bill of RIGHTS!!! - RIGHTS!!!

That's why it's called "The Bill of RIGHTS" in the first place!

..."the RIGHT...the RIGHT of the PEOPLE...the PEOPLE to Keep and Bear arms shall NOT be Infringed!"

There is no planer language.

Posted June 30, 2010 at 7:49:55 PM


Colorado Pete

Piss off a liberal, buy a gun.

In fact, buy a RIFLE and become thoroughly expert in its use. That not only pisses them off, it scares them enough to wet their diapers. The more of us doing that the better.

Posted June 30, 2010 at 10:27:39 PM


Rod

Kevin: You are right. When we outlaw guns, only the lawless will possess them because they will find a way and they will not respect the gun law any more than the other laws they violate with reckless abandon. That leaves the law-abiding citizenry to be ... SHEEP.

The Supreme Court is amazingly prejudiced and activist. I thank the Author (Mr. Sullom) for an excellent article on the hypocrisy of the leftist members of the court.

PS: Is anyone surprised that the "wise Latina woman" justice dissented in this?

Posted July 1, 2010 at 11:24:58 AM


Rod

Jon: GREAT point, well said.

BJ: Thanks for the(partial) list of liberal offenses against a) God, b) common sense, c) we the people, d) the very Constitution of the United States....

Liberals truly don't reason with logic because they lack vritical thinking skills. They are also fixated on pretending that marxist/communist philosophies can work if we just give them a chance! Rubbish.

Posted July 1, 2010 at 11:29:48 AM


GMButler

Thomas Jefferson knew the propensity of man to crave and ultimately abuse power. The Second Amendment was put in place as a mechanism for the People to overthrow an illegitimate government as we have today. My ballots will be my bullets in November and on the 3rd we shall begin the long journey back to limited government, but I have been known to be overly optimistic ;-)

Posted July 1, 2010 at 12:04:49 PM


Mike McGinn

If "the people" want to ban handguns, they say, "the people" should be allowed to implement that desire through their elected representatives.

...and they can, through a process called an ammendment to our Constitution. Maybe the justices should read Article V of the Constitution.

Posted July 1, 2010 at 12:51:50 PM


Howard Last

A correction to your statement, "The crucial difference between a pure democracy and a constitutional democracy like ours is that sometimes the majority does not decide." We are a Constitutional Republic, see Article 4, Section 4. In a democracy 51% of the people can vote to kill the remaining 49% and it is all democratically done. BTW, Adolph was democratically elected.

When someone says we are a democracy it is like chalk rubbing on a blackboard.

Posted July 1, 2010 at 2:07:04 PM


Hard Thought

As a retired US Army Cavalry Scout with sniper training, I have done as Colorado Pete suggested.

Owning and using firearms has been a way of life for me and my family.

There should have been NO debate and there wasn't even a need to vote. The Second Amendment uses plain language that anyone can understand. "The right of the People to keep and bear arms shall not be infringed."

What could be clearer? "Joe, you can own a gun."

Armed people are citizens, disarmed people are slaves. How do you choose to live your life?

Posted July 1, 2010 at 2:46:59 PM


Abu Nudnik

Invites an avalanche of litigation? Oh. I see. He wants to sit on the Supreme Court. Just sit. Not work. I get it. That's some admission.

Posted July 1, 2010 at 4:33:37 PM


jimzgotdemzunderhizskinz

"Just as they can help homeowners defend their families and property from intruders," he explains, "they can help thugs and insurrectionists murder innocent victims."

Steven's comment negates itself regarding the duality of gun ownership. So Steven's is saying that on one hand the legal gunowner should be able to defend family & property(defense), while on the other hand thugs use guns to murder (offense). So his dissent is a vote for the thug?

At first, I was happy to hear the court's decision, but then became immediately concerned with the split being so close...shouldn't have any dissenters at all!

Libs want Pro Choice to murder unborn, or partial birth babies but don't want to give anyone the choice to own firearms or defend persons and property.

Posted July 1, 2010 at 5:47:58 PM


Art C

Didn't Sotomayor in her recent confirmation hearings express her belief that the Second Amendment was an individual right. It's amazing how fast she has changed her mind.

Posted July 1, 2010 at 6:58:40 PM


Cylar

It is frightening to me that the four justices who voted in the minority (to say nothing of the inexperienced nitwit that Obama has nominated as a replacement jurist) are part of a body that has the final word on my rights under the Constitution. But for Anthony Kennedy, this easily could have gone the other way. Like many, I am wondering why this A) wasn't 9-0 or B) why it was appealed all the way to the SCOTUS in the first place. The first judge to take the case should have ruled against Chicago, and the first appellate court should have refused to hear the case.

Posted July 5, 2010 at 3:10:18 AM


Post a Comment

Please keep comments civil and brief. Obscene, profane, abusive and off-topic comments will be deleted. Repeat offenders will be blocked.

(required, displayed)
(required, not displayed)
Facebook Twitter YouTube RSS Connect with The Patriot Post






Our Mission

To Support and Defend -- Read The Patriot Post -- It's Right. It's Free. -- www.patriotpost.us

"The Patriot's mission is to advocate for Essential Liberty, the restoration of constitutional limits on government and the judiciary, and to promote free enterprise, national defense and traditional American values. Our objective is to provide Patriots across our nation with a touchstone of First Principles through brief, informative and entertaining analyses of relevant news, policy and opinion from reputable research, advocacy and media organizations, so they may better support and defend those Principles, and enlist others to join our ranks." —Mark Alexander, Publisher


The Patriot Post is not sustained by any political, special interest or parent organization, and we accept no advertising. Our mission and operations are funded entirely by the voluntary financial support of Patriots like you!

Support The 2012 Patriot Fund