...or, One more reason intellectualism seems to get such a bad rap on the right these days...
Of conservatives' few victories this year, the most cherished came when the Supreme Court, in District of Columbia v. Heller, held for the first time that the Second Amendment protects an individual right to bear arms. Now, however, a distinguished conservative jurist argues that the court's ruling was mistaken and had the principal flaws of Roe v. Wade, the 1973 abortion ruling that conservatives execrate as judicial overreaching. Both rulings, says J. Harvie Wilkinson, suddenly recognized a judicially enforceable right grounded in "an ambiguous constitutional text."
Writing for the Virginia Law Review, Judge Wilkinson of the 4th U.S. Circuit Court of Appeals says Heller, like Roe, was disrespectful of legislative judgments, has hurled courts into a political thicket of fine-tuning policy in interminable litigation and traduced federalism. Furthermore, Heller exposed "originalism" — the doctrine that the Constitution's text means precisely what those who wrote its words meant by them — as no barrier to "judicial subjectivity."
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Since 1973, the court has been entangled in the legislative function of adumbrating an abortion code, the details of which are, Wilkinson says, "not even remotely suggested by the text or history of the 14th Amendment." Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.
Conservatives are correct: The court, having asserted a right on which the Constitution is silent, has been writing rules that are detailed, debatable, inescapably arbitrary and irreducibly political. But now, Wilkinson says, conservatives are delighted that Heller has put the court on a similar path.
In Heller, the court was at least dealing with a right the Constitution actually mentions. But the majority and minority justices demonstrated that there are powerful, detailed, historically grounded "originalist" arguments for opposite understandings of what the Framers intended with that right to "keep and bear arms."
Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right. What trigger locks or other safety requirements impermissibly burden the exercise of this right? What registration requirements, background checks, waiting periods for purchasers, ballistic identifications? What restrictions on ammunition? On places where guns may be purchased or carried? On the kinds of people (e.g., those with domestic violence records) who may own guns? On the number of gun purchases in a month?
Judicial conservatism requires judges to justify their decisions with reference to several restraining principles, including deference to the democratic branches of government, and to states' responsibilities under federalism. But, Wilkinson writes, Heller proves that when the only principle is originalism, and when conscientious people come to different conclusions about the Framers' intentions, originalist judges must resolve the conflict by voting their preferences.
Hoo-boy, where do we even begin?
I fail to see how anyone with a shred of intellectual integrity could say with a straight face that the Second Amendment is "ambiguous constitutional text." Taken all by itself it might be, but taken in tandem with the Founding Fathers' commentary on an armed citizenry, it gets to be as clear as a freshly-washed window — that is to say, the Second Amendment clearly and unambiguously protects the individual right to keep and bear arms. Why is this part of the debate still even stirring, let alone fully alive?
As for the court having to "slog through an utterly predictable torrent of litigation," well, so the hell what? It deserves to be asked why all those laws were passed in the first place and whether or not they amount to a violation of the Second Amendment. It would seem to me that things like gun registration and licensing run afoul of the Fourth Amendment by undermining the right to privacy enumerated therein. Those two measures have already been ruled to violate the Fifth Amendment in certain instances. In Haynes v. U.S., the Supreme Court ruled a felon cannot be forced to register or license a firearm because in doing so, it's basically forcing that felon to admit his crime — which, therefore, makes it a violation of the Fifth Amendment. I don't see why it couldn't be argued that licensing and registration would violate the Fourth Amendment due to a compromising of a "reasonable expectation of privacy" as defined by Justice John Marshall Harlan in Katz v. United States. After all, once those license & registration records are out there, likely as not they're going to be made public record, which leaves the door open for — you guessed it! — wholesale violations of privacy from sea to shining sea at the hands of anti-gun public officials such as, say, Dick Daley or Mike Bloomberg, through their willing accomplices in the mainstream media.
As far as deference to the democratic branches of government...all righty then, what if those democratic branches of government were engaging in widespread violations of natural rights, sort of like they were in D.C. and continue to be in Chicago and New York City? What then? Will throws out all this mumbo-jumbo and expects folks like me to just lap it up, but he makes it all out to be way the hell more complicated than it really is. The term "idiot savant" and the phrase "missing the forest for the trees" come to mind, because that seems to be exactly what George Will is and exactly what he is doing here.
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