He Needs a Constitutional

Even though I hold forth, from time to time, on legal issues, I would never claim to know as much about the law -- particularly Constitutional law -- as, say, the [cue fanfare] dean of the University of California, Irvine, School of Law. Well... actually, I would. At least in this case. Because the dean, Erwin Chemerinsky, has accused the majority on the Supreme Court, in its recent Second Amendment decision, of "conservative activism". He sees the decision as giving the lie to the court's conservatives' ongoing pleas for judicial restraint. What is the basis for his accusation? Why, the "fact" that restrictions on private gun ownership, i.e. gun ownership not under the umbrella of "a well-regulated militia" -- and when's the last time you saw one of those, except maybe in a "re-enactment" battle in some park? -- constitute "precedent". He says, "If the terms 'judicial activism' and 'judicial restraint' have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent and restrained when deferring to popularly elected legislatures and following previous decisions." Very interesting. To begin with, he seems to forget that the sole mission of the Supreme Court is to defend -- and interpret, as need be -- the Constitution. So if "laws" and "precedent" are in blatant violation of the Constitution, can it really be considered "activist" to nullify those laws and ignore those precedents? And if "popularly elected legislatures" -- on the federal or state level, or even below, pass laws that are blatantly unconstitutional, can it be considered "activist" to nullify those laws? And if "previous decisions" serve to bend, fold, spindle, and mutilate the Constitution, can it be considered "activist" to declare those decisions null and void? That's what he seems to be saying. Which is, in effect, saying that the Constitution has no bearing on the matter -- it's all a matter of what various courts, at various levels, some full of hacks and fools, some clearly smoking their socks, come up with in the name of the state, county, city -- whatever -- which they are supposed to represent. When it comes to interpreting the Constitution, there is, in fact, more than one approach. But no approach that is truly faithful to the Constitution will accept mere "laws" and "precedents" as compelling reasons to go against what is seen as the original intent.

Chemerinsky's argument in this case is that "never before had the Supreme Court found that the Second Amendment bestows on individuals the right to have guns." Well, that may be true, but it's also true that the Court never before found that the Second Amendment _prohibited_ individuals from having guns. The issue was in a gray area from the ratification of the Constitution up to the recent decision. It's not as if the Court turned 180 degrees and said, forget all we've said before, and all prior decisions -- we have now decided that guns are groovy. What they did do is begin (emphasis on "begin") to clairify the issue. The decision did not specify, for every single make and model of firearm, whether it came under the umbrella of Second Amendment rights. There is still plenty of work to be done at the state and local level -- and no, all gun-control regulations are not now null and void. The only thing that is, in fact, null and void under this decision is that the District of Columbia, which is not even a state (for which we can all be thankful), cannot have a blanket prohibition on handguns. As a turning of the tide, this is a remarkably low-impact decision... but it will have (we hope!) far-reaching consequences.

In any case, the decision will nicely survive the quibblings of the like of Mr. Chemerinsky. And -- my guess is -- our cities will not morph into re-enactments of Dodge City at high noon, except with real bullets. I understand that Mayor Daley of Chicago, e.g., is worried that more guns will now, as a result of this decision, find their way into the hands of criminals. He clearly underestimates the cleverness of criminals when it comes to getting hold of as many guns of any type as they want, at any time. Is he, then, really worried about guns getting into the hands of law-abiding citizens, who want nothing more than to defend their lives, homes, and property? In that case, let him worry. And let the dean of Irvine continue to stew.