Elections Have Consequences: UPDATED 10-16-12
With the election only about a month away, it may be instructive to contemplate the likely consequences of an extension of the Obama era, particularly regarding American’s fundamental freedom that enables the preservation of life itself: the Second Amendment.
In a July 6, 2011 PJ Media article titled The Future of Obama’s Stealth Gun Control, I catalogued Mr. Obama’s unswerving past and present support for every gun control measure imaginable. I also suggested that if reelected, Mr. Obama would attack the Second Amendment through public persuasion, legislation, the administrative state, environmentalists and similar pressure groups, the imperial courts and the international community. To date, he has used all of those methods, but to relatively little effect, unless one considers the Fast and Furious debacle, with its hundreds of victims on both sides of the border to be effective, as Mr. Obama and the Legacy media surely do not.
There remains one sure method by which Mr. Obama can essentially obliterate the Second Amendment: Supreme Court appointments. There is little doubt in a second term Mr. Obama could appoint multiple justices, and almost certainly overturn the current narrow balance for freedom in Second Amendment jurisprudence. That such a reversal would occur is unmistakable to those aware of the reasoning—such as it is—of the progressive wing of the Supreme Court.
In a December 14, 2010 PJ Media article titled On The Court: Leftist Justice vs. The Rule of Law, I wrote of a then-current interview of Justice Stephen Breyer, noting:
“Elections have consequences,” said Barack Obama upon becoming president. Among those consequences is the ability of any president to appoint justices of the Supreme Court, as well as a great many other federal judges, based on criteria rational or irrational, honorable or dishonorable, or no criteria other than flipping a coin or tossing a dart at a board festooned with the names of candidates.
On Dec. 12, the consequences of the election of Mr. Obama were illuminated in stark relief on Fox News Sunday during Chris Wallace’s interview of Supreme Court Justice Stephen Breyer, currently hawking his book Making Our Democracy Work. Wallace wisely questioned Justice Breyer on the Second Amendment. His answers and evasions were illuminating — and frightening.”
That article reflected Justice Breyer’s beliefs as expressed in his dissenting opinion in the Heller Decision, wherein a 5 to 4 majority of the Court affirmed the Second Amendment as a fundamental right applying to individuals. While many Americans understand Heller confirmed that individual right, they know little of the reasoning behind it, and particularly, the reasoning opposing it, which, considering the very real possibility of a second term for a Mr. Obama unrestrained by any need to earn voter approval, could prove a destructive lack of information.
The first dissent in the case was written by Justice Stevens and joined by Justices Souter, Ginsburg and Breyer. Justice Stevens begins by acknowledging the Second Amendment “…protects a right that can be enforced by individuals,” but proceeds to render that “right” utterly meaningless in application. He writes, with an Obamaesque twist of logic:
“The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question. The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.”
Justice Stevens further argues that the majority, in affirming the individual right to keep and bear arms, engaged in a “dramatic upheaval in the law,” invoking Justice Cardozo who wrote the
“labor of judges would be increased almost to the breaking point if every past decision could be re-opened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”
One might be misled into thinking Justice Stevens was arguing for stare decisis—respect for precedent—but this is as much a misunderstanding of his reasoning and purpose as is taking Mr. Obama’s rhetoric for the plain meaning of his words. Affirming the plain language of the Second Amendment thus becomes judicial activism. Assailing the majority’s understanding of ‘the people” as referring to individuals, he engages in truly tortured reasoning, suggesting conflict where none exists:
“The centerpiece of the Court’s textual argument is its insistence that the words ‘the people’ as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments. According to the Court, in all three provisions—as well as the Constitution’s preamble, section 2 of Article I, and the Tenth Amendment—’the term unambiguously refers to all members of the political community, not an unspecified sub-set.’ Ante, at 6. But the Court itself reads the Second Amendment to protect a ’subset’ significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to ‘law-abiding, responsible citizens,’ ante, at 63. But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements.”
This is a straw man that might make even Mr. Obama blush with embarrassment, for the majority opinion makes clear that no right is absolute, which is a well-settled principle of constitutional law. Yet starting from this shaky platform, Justice Stevens argues the collective right interpretation:
“In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of ‘the people.’ These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.”
Therefore, the previously acknowledged individual right has disappeared and the Justice’s true values are revealed:
“When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms.”
Obviously unsatisfied, Justice Breyer authored his own dissent (joined by Stevens, Souter and Ginsburg), but in more down-to-earth, and scornful, terms. He too grudgingly acknowledges the Second Amendment says something or other about an individual right, but attacks it with more condescension than Justice Stevens.
“Although I adopt for present purposes the majority’s position that the Second Amendment embodies a general concern about self-defense, I shall not assume that the Amendment contains a specific untouchable right to keep guns in the house to shoot burglars. The majority, which presents evidence in favor of the former proposition, does not, because it cannot, convincingly show that the Second Amendment seeks to maintain the latter in pristine, un- regulated form.”
Even though he admits that the District of Columbia’s gun laws essentially outlawed handguns and made it all but impossible for any gun to be used for self defense, even in the home, he spends much of his dissent downplaying the need for self-defense and the utility of firearms—particularly handguns—in that pursuit. His reasoning utterly defies logic:
“I conclude that the District’s law burdens the Second Amendment’s primary objective little, or not at all.”
As he did in his Fox News Sunday interview, Justice Breyer thought requiring gun owners to travel to nearby or distant states to exercise a fundamental right was not in any way a burden. He could see no practical, moral or salutary use for handguns:
“That they are small and light makes them easy to steal… This symmetry suggests that any measure less restrictive in respect to the use of handguns for self-defense will, to that same extent, prove less effective in preventing the use of handguns for illicit purposes. If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence.”
One might expect a member in good standing of the progressive wing of a court more than capable of discovering “emanations” within “penumbras” of being somewhat liberal in interpretation, but not where the fundament right of self-defense is concerned:
“...the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that the Second Amendment seeks to serve. The Second Amendment’s language, while speaking of a ‘Militia,’ says nothing of ’self-defense.’”
Justice Breyer’s conclusion makes clear his beliefs, and those of the Progressive wing of the Court:
“The argument about method, however, is by far the less important argument surrounding today’s decision. Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launch-ing the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”
In the McDonald Case, following on June 28, 2010, Justice Stevens again dissented in much the same terms as those employed in Heller. In addition, Justice Breyer filed a second dissent, joined by Justices Ginsburg and Sotomayor. This despite the fact the “wise Latina woman” claimed to support the Second Amendment during her confirmation hearing. This was an approach also taken by Elena Kagan when she said the Second Amendment was settled law during her confirmation hearing, yet there is little doubt of her true anti-gun sentiments.
A second Obama term would almost certainly provide the opportunity to tip the balance on freedom on the Supreme Court. Despite Justice Steven’s rhetorical support for the restraint of judicial activism and honoring the “settled law” ala Justice Kagan, the intent of the progressive wing of the court is clear.
They need not utterly invalidate the Second Amendment. Their dissents in Heller and McDonald make clear they would likely pay lip service to a nebulous individual right, yet legislate it–from the bench–utterly out of existence, rendering it a fundamental right nebulously floating in the legal ether without any application in the real world of individual Americans.
It is ultimately the Second Amendment that secures all rights. The bloody path of history makes this clear. Despite his frequent historical gaffes, one may be certain that Mr. Obama and his supporters have well learned this ugly, fundamental lesson of history. On November 6, the stakes—for individual freedom and the survival of western civilization—could scarcely be higher.
Those of us who write regularly know that every piece we produce might be outmoded—or in some cases, confirmed—even as we post them. As it turns out, confirmation has arrived.
UPDATE, 10-16-12, 2000, CST: Joel Gehrke, writing in The Washington Examiner reported on a October 15th speech by retired Supreme Court Justice John Paul Stevens with the Brady Center to Prevent Gun Violence and its Legal Action Project. Despite the Heller and McDonald decisions, Mr. Stevens sees no obstacles to gun bans.
“[Miller] was generally understood to limiting the scope of the Second Amendment to the uses of arms that were related to military activities. The Court did not overrule Miller [in Heller]. Instead it ‘read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns . . . Thus, the Second Amendment provides no obstacle to regulations permitting the ownership or the use of the sorts of the automatic weapons used in the tragic multiple killings in Virginia, Colorado, or Arizona in recent years.”
Mr. Stevens is quite incorrect regarding the types of weapons involved. The weapons used at Virginia Tech and in Arizona were common semi-automatic handguns, and the weapons used in Colorado—long gun and handgun–were also unremarkable semiautomatics. There were no “automatic weapons” used in those, or in any other mass shooting in memory. Does Mr. Stevens really know so little about the technology involved in the exercise of a fundamental right, or is he, like gun banners everywhere, conflating actual automatic weapons with common semiautomatic handguns and rifles? He also misstates Miller—a very limited decision that did not in any way define Second Amendment law—which suggests strongly that of all weapons, actual military weapons may be given the greatest Second Amendment protection.
Mr. Stevens was critical of Congress:
“The fact that Congress doesn’t address it, I find mind-boggling, to tell you the truth.”
This is hardly surprising. The Progressive wing of the Court has never been shy about usurping the legislative powers of Congress. There is every reason to believe that if given the chance, they would legislate from the bench to correct what they see as legislative deficiencies. He also indicated his preferences regarding allowing citizens to actually carry weapons outside their homes:
“There’s a very powerful argument for saying it does not extend to disagreeing with local communities about decisions about which public places they should not be permitted to be carried [in].”
In other words, if DC or Chicago wish to disarm citizens who dare to venture from their homes, the Supreme Court should, at the least, allow them to limit their Second Amendment rights. Mr. Stevens also demonstrated a rather odd idea of the effectiveness of cell phones when compared with firearms in the home:
“Maybe you have some kind of constitutional right to have a cell phone with a pre-dialed 911 in the number at your bedside and that might provide you with a little better protection than a gun which you’re not used to using.”
One might assert that Mr. Stevens is retired and therefore can have no real effect on the current court. This is so, however, Steven’s writings, and the concurrence of the current progressive members of the court in his opinions touching on firearms freedom provide a very clear window into the future of Second Amendment decisions if the majority of the court is shifted by Obama appointments toward judicial activism rather than a faithful application of original intent and the Constitution.
The ability of Americans to protect the lives of those they love and themselves continues to hang on the 5 to 4 majority of Heller and McDonald.
Mike’s home blog is Stately McDaniel Manor.