A BAD DAY FOR LIBERALS IN AMERICA
Anthony Joseph Sacco, Sr. © Copyright June 2008
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PINE BLUFFS - Thursday, June 26, 2008, was a very bad day for American liberals.
Ominously, the sun, which had risen as usual over the Nation's capital that morning, quickly disappeared behind thick clouds, and the sultry heat that characterizes the area had settled in by 10:05 a.m. when the nine black-robed Justices filed into the courtroom to announce their eagerly-awaited decision in District of Columbia v. Heller (07-290),
For perhaps 217 years the Supreme Court had not visited the Second Amendment authoritatively. That changed in June 2008 when, in a 5-4 decision, it overturned the District's 29-year old ban on ownership of firearms by individuals. Specifically, the Court found that the Second Amendment protects an individual's right to own a gun, at least in the home.
As many had predicted, the Court split 5-4 on this issue. For sixteen minutes, Justice Antonin Scalia announced from the bench the majority's reasoning. His scholarly in-depth historical analysis was loaded with detail. Scalia's opinion is classic originalism or, as some call it, strict constructionism. In 54 pages, he deployed an overwhelming argument and disposed in detail of the dissenters' "wrong headed" contentions. He was joined in the majority by Chief Justice John G. Roberts, Jr., Justices Samual Alito, and Clarence Thomas. And as has been the case often since the beginning of the Court's 2006 term, Justice Anthony Kennedy supplied the “swing vote” to provide a slim majority. (See my article, Supreme Court's Term Has Begun. What's in Store for Pro-Lifers? October 2006; Special to saccoservices.com, where I said:“CENTRIST ANTHONY KENNEDY?Another fascinating aspect this term is the possible emergence of Justice Anthony Kennedy as a centrist power on the court. If this happens, he could provide the swing vote in key cases.”
When Justice Scalia finished, Justice John Paul Stevens, the oldest member of the Court, followed for seven minutes, summarizing the reasons for two dissenting opinions - his and one written by Clinton appointee Justice Stephen Gerald Breyer. The other dissenters were another Clinton appointee, Justices Ruth Bader Ginsburg and Bush One appointee, David Hackett Souter. It's amazing to me that four Justices of the United States Supreme Court are prepared to rule that the Second Amendment to our Constitution is unconstitutional. If anyone doubts where this country would be headed if the Democrats win the White House in November 2008, let him take a long, hard look at this situation.
After Stevens concluded, the Court began its summer recess, to return on Monday, October 6, but not before Justice Scalia had said, for the majority, “it is not the role of this Court to pronounce the Second Amendment extinct.”
Examining the words of the Amendment, the Court concluded “we find they guarantee the individual right to possess and carry weapons in case of confrontation” - in other words, for self-defense. “The inherent right of self-defense has been central to the Second Amendment right,” it added.
The individual right interpretation, the Court said, “is strongly confirmed by the historical background of the Second Amendment,” going back to 17th Century England, as well as by gun rights laws in the states before and immediately after the Amendment was put into the U.S. Constitution. What Congress did in drafting the Amendment, the Court said, was “to codify a pre-existing right, rather than to fashion a new one.”
Justice Scalia's opinion stressed that the Court was not casting doubt on long-standing bans on carrying concealed weapons or on gun possession by felons or the mentally retarded, on laws barring guns from schools or government buildings, and laws attaching conditions to gun sales.
And the Court took no position on whether the Second Amendment right restricts only federal government powers, or also curbs the power of states to regulate guns. In a footnote, Scalia said that the issue of “incorporating” the Second into the Fourteenth Amendment, thus applying it to the states, was “a question not presented by this case.” But the footnote said decisions in 1886 and 1894 had reaffirmed that the Amendment “applies only to the Federal Government.” Whether or not the Court will reopen that issue will depend upon future cases, which will develop further law on the issue.
Justice Scalia also demolished the most recent precedent on the Second Amendment - the ruling in U.S. v. Miller in 1939, relied upon heavily by advocates of gun control (and by the dissenting Justices on Thursday). The opinion tartly remarked: “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”
