Thursday, September 04, 2008

All Hail Democracy! Hmm...maybe not...

Oh, now this is a new one on me -- a law professor using the First Amendment to shit on not only the Second, but in effect all the rest as well...
(h/t Armed and Safe)

In striking down the District of Columbia's gun control law, the U.S. Supreme Court raised the question whether constitutional rights are necessarily good ideas. The court, in a 5-4 vote, invalidated the Washington, D.C., law because it violates the Second Amendment right to "keep and bear arms." Whatever else that may be said about the case, it illustrates Thomas Jefferson's observation that by trumping policy choices, constitutional rights amount to rule of the living by the dead.
Whatever the merits of gun control today, researching the history of the Second Amendment in a bid to determine the view of the people who adopted it in 1791, hardly seems a sensible way of deciding the issue. It is arguable — as the 5-4 split on the Supreme Court indicates — that the Second Amendment does not guarantee an individual right to possess guns; "bear arms" has a military ring.
If democracy is the norm, only policy choices clearly precluded by the Constitution should be struck down by the courts. The view of elected legislators should prevail in cases of doubt. The court might well, therefore, have refrained from taking the gun control issue out of the political process.
...Though the Constitution wisely precludes very few policy choices, even those few can create serious and unneeded problems, pointlessly frustrating democracy....

Once again, before we go on, a definition:
democracy [di-mok-ruh-see] n. -- system of government more accurately known as the "tyranny of the majority" whose doctrine says that if 51 percent of the people vote to strip the other 49 percent of their God-given rights then that's just too bad for them.
All righty then. He might as well just have said the Supreme Court's decision in Heller "raised the question whether God-given (or natural) rights are necessarily good ideas." After all, the Bill of Rights more or less codified in that document protections of rights that were bestowed upon humans by virtue of humans' very existence -- those of life, liberty and property, as laid out by philosopher John Locke, who was a tremendous influence on the Founding Fathers. Now, I understand that people are going to have different ideas of what rights are and which rights should be protected, but for once I'd like for these statist tools to explain to me why something like Lockean philosophy is such a bad thing. I'm getting the idea that Lino Graglia and his anti-liberty ilk would say "because 51 percent of the people say it is." Question is, though, could even 51 percent of that 51 percent put forth even a semi-cogent argument (NOT grounded in "social utility") detailing why the Lockean concept of natural rights -- or those rights not being subject to a vote -- is such a bad thing and should be scrapped in favor of what basically amounts to majority rule? I'd bet the contents of my gun safe that the answer is "No." If indeed that's the case -- and again, I am betting it is -- then why in the hell should I or anyone else give a flying rat's ass what they think? And why should mine or anyone else's rights be dependent on a vote of these ignorant clods?! I bet they couldn't come up with a semi-cogent answer to THAT, either.
Graglia goes on to bemoan the makeup of the current Supreme Court and the fact that so many cases hinge on the swing vote of Anthony Kennedy:
In a nation of more than 300 million people with elected national and state legislatures and executives, the final decision on such fundamental policy issues as gun control, punishment for child rape, consideration of race to increase school integration and the legal rights of alien enemy combatants held overseas rests on the views of a single unelected official.

A nation willing to go to war to spread democracy elsewhere should have more faith, it would seem, in democracy at home.
It might well be the case that those fundamental issues rest on the vote of one justice, but sometimes that's what it comes down to. Sometimes that's all that protects our rights. I do wonder what Graglia and his ilk would say if the Presidential election all came down to one person's vote as so many Supreme Court cases do. After all, that'd be democracy, too. (And I might have more faith in democracy if it brought better people to power than, say, Barack Obama, Charles Schumer, Sheila Jackson-Lee or Howard Metzenbaum.) Basically, what Graglia is advocating is one form of usurpation (legislative) over another (judicial). And as far as I'm concerned that makes his position no more tenable than the situation he derides. As the old saying goes, "There are four boxes to be used in defense of liberty: soap, ballot, jury, and ammo." And it would seem that we have a law professor at a top-tier university advocating that three of those boxes be taken away. I don't know about you, but to me that's just scary as all hell.