By Dennis Henigan
I’m all for kicking off the new Congress with a reading of the Constitution. I also think it’s a great idea to include a statement of Constitutional authority in every piece of federal legislation.
Our elected representatives should, of course, make a good faith effort to pass only legislation that honors our founding document. What bothers me is the barely-disguised claim of the House Republican leadership to a special and infallible knowledge of the Constitution’s meaning. For Speaker Boehner and his new Tea Party friends, to simply read the words of the Constitution is to transport us into the minds of the Framers (and into the collective consciousness of the founding generation) where the unconstitutionality of vast swaths of the U.S. Code immediately becomes clear.
Few would contend that the original meaning of the text is irrelevant to constitutional interpretation. In opposing Scalia-style originalism, Justice Stephen Breyer, in his new book, Making our Democracy Work, and in a fascinating interview with Fox News, explains that even if certain enduring values can be located in the original meaning of the constitutional text, originalism simply does not supply answers to questions about applying those values to specific modern circumstances. A second, and even more fundamental, problem is that originalism, in practice, has been manipulated by the right to mask its own plainly ideological approach to determining the values enforced by the Constitution.
The best contemporary example is the Supreme Court’s reading of the Second Amendment in its landmark 2008 ruling in District of Columbia v. Heller striking down the District’s handgun ban. Here was a case where the central task was identifying the value sought to be protected by the Second Amendment. Was it the defense of the individual against criminal attack in the home? Or was it society’s interest in a well-armed state militia system, protected against destruction by federal authorities?
This was necessarily a debate about original meaning. It was, therefore, destined to be a debate about history. What is striking about Heller is that Justice Scalia’s majority view that the Second Amendment is about the value of individual self-defense has received virtually no support from professional historians. Characteristically understating the matter, Justice Breyer told Fox News that “more of the historians were with us,” referring to the four Heller dissenters. In fact, of the sixteen academic historians who joined “friend of the court” briefs in Heller, fifteen argued that the Second Amendment was entirely about the protection of state militias, not individual self-defense. Unlike Justice Scalia, the historians thought it important that the Second Amendment is the only provision in the Bill of Rights in which the core value to be protected actually appears in the text – “A well regulated Militia, being necessary to the security of a free State . . .”
The historians’ attack on the self-defense view has continued after Heller, with twenty-four professional historians joining briefs criticizing the self-defense view in last year’s McDonald v. City of Chicago case, in which the same 5-4 majority extended the Second Amendment to apply to the states through the Fourteenth Amendment. The remarkable scholarly consensus that the Court had gotten the history wrong in Heller led Justice Breyer to pose this question in his dissent in McDonald: “If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views?”
Justice Breyer’s obviously tongue-in-cheek question supplies its own answer. Justice Scalia’s Heller originalism is not really about history. It’s about ideology. Indeed, when it was necessary to reach his desired result, Justice Scalia abandoned originalism in the Heller opinion itself, when he found that handguns are constitutionally protected because they are in common use now, not in 1791. As historian Saul Cornell has written, “Justice Scalia’s brand of plain-meaning originalism is little more than a smoke screen for his own political agenda.”
As I have written elsewhere, apart from its manipulation of history, there is much reassuring language in Heller (reaffirmed in McDonald) that may serve to protect strong gun regulations from constitutional attack, an optimistic prognosis so far borne out by lower court decisions since Heller. I suspect that, over time, Heller will prove far more destructive to originalism than it will be to gun laws.
In the meantime, when the Second Amendment is read to the House of Representatives, the language about the “well regulated Militia” will still be there. The originalists of the right are entitled to their own opinions, but not to their own text, and not to their own history.
http://sipseystreetirregulars.blogspot.com/2011/01/atf-execs-ululations-of-agony-not-so.html
Prolific Progressive critic of constitutionalists objects to being pwned by TSA.
The kind of thing opposed by Beck, Limbaugh and the Tea Party he says are a threat to the nation. Imagine.
http://www.opposingviews.com/i/video-david-pakman-gets-porno-patdown-at-airport
I do not need a gaggle of socialist 'historians' to 'interpret' the meaning of the Second Ammendment. The Federalist Papers and countless other documents have the framers own words written down.
You ask Sir, 'What is the Militia? The Militia ARE the people'
The Militia refers to our armed forces and not the average citizen. Although the 2nd amendment also gives the same right to the people.
Shouldn't be so sure of yourself when you are actually WRONG!
ddelwood51
Here is one source for you to ponder - - http://en.wikipedia.org/wiki/Militia
Unfortunately, the “well regulated Militia” is missing in some states that have a "may issue" or "no issue" concealed carry permit process. If you don't trust that a citizen can be trained to carry a gun, how do you ever cross the street in front of a car at a stop light.
Any shooting, even a defensive one, is a tragedy. But, for good to prevail, good people need to have the option to be armed.
I was referring to constituional language and if it talks of both the militia and the people obviously they were talking about military in the constitution as well as the people.
I am not worried that a citizen can be trained to carry a gun I am worried that a mentally unstable person can carry a gun!
I also strongly disagree with your logic! "For good to prevail, good people need to have the option to be armed." I do not own a weapon simply because I do NOT wish to harm anyone. Ever think of that logic?
Of course you will counter with self defense or a home invasion. I do not wish to ever encounter such a thing but if I do I hope to handle it without harming someone even if it is their intent to harm me. Paranoia runs rampant in this country and it is killing innocent people!
Dawn
is your choice. I honor and respect that decision. I have read early versions of the second amendment exempting "conscientious objectors". Eventually, the wording was considered unnecessary because no one would be forced to act against their beliefs.
I do not wish to harm anyone either. But, for myself, guile and wit will only go so far. The defensive purpose of a gun is to stop anyone trying to harm me or some close to me.
So the real issue is not about guns , but rather, about how to revamp our mental health system. This far more difficult a task, but should yield far greater benefits in the long run.
It's called "gettin' a lick" in street language. Could refer to theft, robbery, rape, vandalism, on up to multiple murder. For fun and profit. It's a participatory sport for them. A competition.
I desperately don't want to hurt anyone either. They count on it. Individual criminals as well as governments. If EVERY person were the WRONG person to atack, if EVERY home were the WRONG home to invade..
I've owned guns for almost 30 years, interrupted a rape and prevented a car burglary, without having to hurt anyone. No one wants to get shot.
A neighbor says she would never have a gun in her house. She keeps the kitchen knives out of sight so an intruder wouldn't be tempted to use one on her.
Maybe he already has one..?
Then in discussing her financial situation, she says she has many thousands of dollars in jewelry at home.
She trusts me, and deservedly so, but what if the wrong person overheard? She at least has the RIGHT to own a gun, if only for brandishing.
I think crime is as low as it is because criminals know they could get an instant death penalty from about half the population. It's as high as it is because people are worried about appearing NICE and law-abiding and think guns are NOT nice and don't have them everywhere at all times.
Actually Dawn there are two militias: The organized militia, State National Guards and State militias; and the unorganized militia, which is every other citizen capable of bearing a military arm. This includes you.
I sincerely hope that your desire not to harm others is never tested, but I consider being completely unprepared for the possibility is between foolhardy and negligent.
Best regards,
-James
P.S. Lunatics and criminals are killing people.
Professor Joyce Lee Malcom says her colleagues suggested she not study this topic lest she discover facts that could be used by the opponents of gun control.
The fact is, lots of university professors in the social sciences are New Left Marxists who are quite happy to prostitute their professions and corrupt their disciplines for the sake of their politics.