Heller Opens the Door For Extra-Judicial Authority?
June 27, 2008 – 1:15 pmYesterday, the Second Amendment was preserved. At least it was somewhat preserved. The Supreme Court decided in District of Columbia v. Heller (PDF) that it was the right of individuals to “keep and bear arms” individually. SCOTUS had never decided on this aspect of the Second Amendment and I think it’s safe to say that precedent was set.
Adam Liptak at New York Times indicates that potential lawsuits will follow challenging gun laws in other cities but notes the caveat that the Court decided on a law in the District of Columbia making the decision applicable to federal law only and not necessarily state and local law.
What is interesting to me about the decision is not the gun aspect of this law. Somewhat of a pragmatic realist and a natural cynic, I see the decision (which I commend) as fraught with the possibility of other problems.
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
The decision, in essence says that no public policy may supersede that which is established in Constitutional law, a thesis that is somewhat vague. And therein lies our problem. By setting this precedent, we have to ask, “Hasn’t this always been the case? Haven’t we relied on the courts to tell us if a law passed by the legislature and signed by the executive branch was Constitutional or not? What is the Court saying here?”
My feeling is that this decision sets up extra-Constitutional authority to the Judiciary to also have to sign a bill into law. Congress passes. Thee Court rubber-stamps. The President signs.
This is not what our forefathers had in mind when they established a system of checks and balances.
Some might think I’m smoking crack. I just generally believe that where there is smoke, there is fire.
11 Responses to “Heller Opens the Door For Extra-Judicial Authority?”
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.
There were not any well-trained police forces in New Orleans in the aftermath of Hurricane Katrina.
By Michael Ejercito on Jun 27, 2008
The only remedy that is completely outside of the Court’s authority would be to repeal the Second Amendment (which will never happen). I don’t think the Court is giving itself more power, but merely saying that DC overstepped its authority when it enacted this statute.
It is an interesting case and definitely will not be the last (and first) word on the subject considering DC’s unique situation of not being a part of any state. There is a large federalism issue that still needs to be resolved which the Court took great pains to avoid.
By Joshua Rosenstock on Jun 27, 2008
This is a wrong-headed decision that will cost innocent lives, cause immeasurable pain and suffering and make America a more dangerous country.
It is also an arrogant re-writing of the Second Amendment. In a particular irony, Justice Scalia, the ultimate “Originalist”, trashes that Amendment by declaring that it guarantees individuals the right to bear arms for nonmilitary uses, even though the amendment clearly links that right to service in a “militia.”
But there is even more to be disturbed about. Senator John McCain has said he would appoint justices like Chief Justice John Roberts and Justice Samuel Alito — both of whom supported this decision.
So here’s another powerful reminder of why voters need to have the Supreme Court firmly in mind when they vote for the president this fall.
By Steve Levine on Jun 27, 2008
Steve,
Unfortunately, 95% of the American public knows nothing about the Supreme Court nor can name even one justice. I agree it is one of the most important criteria when considering which presidential candidate to vote for, but almost no one else cares. They are much more interested in who they would rather have a beer with.
Senator Obama has said almost nothing about what types of Supreme Court justices he would appoint if he is elected. In the wake of this decision, I would like to hear him raise the issue much more frequently.
By Joshua Rosenstock on Jun 27, 2008
Unfortunately, 95% of the American public knows nothing about the Supreme Court nor can name even one justice.
Then those yahoos shouldn’t be allowed to vote.
By Steve Levine on Jun 27, 2008
I agree but poll tests are considered to be discriminatory.
By Joshua Rosenstock on Jun 27, 2008
rofl. If you guys think this is controversial, wait until I really get rolling. I’ve got some things up my sleeve that are going to blow your mind.
By Aaron Brazell on Jun 27, 2008
Bring it on big boy!
By Joshua Rosenstock on Jun 27, 2008
I agree but poll tests are considered to be discriminatory.
I’m less concerned with being politically correct than I am with making sure that ignorant, uninformed citizens are kept out of the voting booth.
By Steve Levine on Jun 27, 2008
Bring it on, Aaron. I can’t wait.
I say that where there is fire, there generally is smoke– I thought you were smoking marijuana rather than crack.;-)
I didn’t read in District of Columbia v. Heller that the Supreme Court was reserving “extra-Constitutional authority to the Judiciary to also have to sign a bill into law.”
How did you derive your interpretation of the court’s possible motives, which strikes me as paranoid, rather than cynical? Not to say that a right-leaning court padded with McCain-approved nominees might not give us reason to be very paranoid indeed.
I’ve always thought the doctrine of strict construction of the Constitution was a chimera flaunted by the right when it was serviceable, and discarded forthwith when it wasn’t.
It seems that Scalia in rendering his opinion has abandoned his usual textualist inclination (summed up in his Tanner lectures at Princeton: “…it is the law that governs, not the intent of the lawgiver.”), especially when he delimits the prefatory clause of the Second Amendment, and relies on the buttressing arguments of individual-rights provisions of
state constitutions from the founding era.
And, yeah, whatever happened to Civics classes in public schools? I think most of the kids in my seventh-grade history class emerged knowing who John Marshall and Thurgood Marshall were.
By Vince Williams on Jun 27, 2008
“I’ve always thought the doctrine of strict construction of the Constitution was a chimera flaunted by the right when it was serviceable, and discarded forthwith when it wasn’t.”
I agree with this 100%. Conservative judges pretend to care about original intent until they don’t like the way the ruling comes out, which is a cardinal sin in the judiciary. Judges are supposed to weigh the facts on both sides before they arrive at their decision, not the other way around. It reminds me of Bush-Cheney foreign policy…
By Joshua Rosenstock on Jun 27, 2008