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The DC Gun Ban

3 July 2008

The pacifists are going histrionic over what one person called Scalia’s “glib” opinion.  (Sometimes glibness is precisely what we need to yank us out of our careless flaccidity about the Constitution.)  Let’s take a deep breath and a closer look.

Even if we stipulate (I don’t, but if we did) that comprehensive gun bans should be allowed to stand and that the 2nd Amendment should be set aside, the key question that Scalia helped us answer is this one: IS IT THE PROVINCE OF THE SCOTUS to make it happen?

No. A thousand times, NO.  Here is Justice Scalia at his most winsomely direct:

“Undoubtedly, some think the Second Amendment is outmoded in our 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.”

Justice Kennedy has made a habit of citing “emerging awareness,” or more precisely his reading of same, as a proper basis for SCOTUS decisions. In doing so, he ignores the inconvenient fact that the Constitution has prescribed a straightforward means of expressing public consensus before any portion of the Constitution can be set aside.  It is not SCOTUS’ prerogative to ascertain public consensus outside the parameters that the Constitution has already set forth for measuring it.

If we want to set the 2nd Amendment aside to achieve what the pacifists desire, let the process begin, and let us do it right: get the states to vote, and get 3/4 in both houses of Congress to agree. But don’t eviscerate the Bill of Rights by simply turning it over to the discretion of one undisciplined Associate Justice, Kennedy, who is trying – in vain, we think – to look like King Solomon. Doing so puts all of the other provisions of the Constitution in equal jeopardy of being set aside as a result of one swing vote arrogating to himself the right to define the terms of public consensus.  

(We must have judges with more self-restraint than that.  It should be obvious to anyone that a President Obama will not give them to us.  It would not surprise me to find Hillary on the Court after Obama is elected.)

So, gentle reader who thinks the DC gun ban should stand, let’s say you are convinced that the SCOTUS decision is a disaster. If you are, then get 3/4 of the states and the elected representatives to vote with you, and amend the Constitution. That is the sum total of what Scalia has said: it is not within SCOTUS’ prerogative to substitute someone’s reading of “emerging national consensus” for the very simple, very concrete, and entirely objective means of measuring national consensus that we already have laid out for ourselves. There is a way to achieve what you want done, but relying on unelected justices to do it for you is an illegal shortcut that undermines the Constitution as a whole.

That you might believe the bar is set too high does not justify going around the procedures we already have in place, procedures that have been successfully used a couple of dozen times. The bar may be high – as it should be – but it is not impossibly so.


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