Judging the judges

Andy Matthews

Proponents of gun rights claimed victory this week as the United States Supreme Court, in the latest of several 5-4 decisions, struck down Washington, D.C.'s ban on handguns. While the news is certainly welcome, the razor-thin margin by which this case was decided ought to be unsettling for those who believe in fidelity to the Constitution. This one was closer than it should have been.

In District of Columbia v. Heller, the Court was tasked with determining whether the right to bear arms recognized in the Second Amendment applies to individuals, rather than to militias only, long a point of contention between those on either side of this debate.

No honest reading of the literal text of the Second Amendment, nor an understanding of the framers' intent in crafting it, should allow for any conclusion other than the one reached by Justice Antonin Scalia in his majority opinion: The right of the individual to bear arms is protected by the Second Amendment.

Yet amazingly, four Supreme Court justices concluded otherwise.

The Second Amendment reads, in full: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Liberals can find within the Constitution a right to an abortion and a right of alien enemy prisoners to petition our federal courts for their release, despite the fact that the Constitution is silent on both of these issues, but they can't find a right of the people to bear arms within the language "the right of the people to keep and bear Arms, shall not be infringed."

Of course, gun control advocates have seized upon the amendment's reference to militias as evidence that the framers' intent never was to extend this right to individuals. But as Scalia explains, the amendment's first (prefatory) clause should not be taken to limit (nor, for that matter, to expand) the second (operative) clause. It is there only to indicate a purpose for the operative clause, which, viewed on its own, is unambiguous: "[T]he right of the people to keep and bear Arms, shall not be infringed." (emphasis added)

Think of it this way: Let's say a father says to his son, "Junior, because you've never been to the Eiffel Tower before, I'm going to let you travel through Europe this summer." The fact that the boy has never been to the Eiffel Tower is the reason he's being allowed to travel through Europe, but that reason does not alter in any way the bottom line of the statement: Junior gets to travel through Europe. There's nothing in the father's statement that suggests the only thing his son is allowed to do while in Europe is visit the Eiffel Tower. There's nothing to suggest, for example, that he couldn't also travel to Naples or Amsterdam while he's over there. Technically speaking, the boy isn't even compelled to go to the Eiffel Tower at all. The "why" of a statement should not be seen to have any effect on the meaning of the "what." The same holds true for the Second Amendment. The reason the amendment gives for why it provides the people a right to bear arms doesn't alter the fact that the amendment does in fact provide that right.

However, even if one were to suspend the rules of both logic and grammar and grant the dissenting justices' argument that the framers intended only to grant the right to bear arms to militia members, an understanding of what the term "militia" meant in 18th Century America (all able-bodied males) – as opposed to what it is more narrowly understood to mean today – is still sufficient to rip the guts out of their conclusion. (Scalia expounds on this point in his majority opinion, available here.)

In sum, only through the combination of distorting the plain language of the Second Amendment and ignoring the historical record could one conclude that the D.C. handgun ban passed constitutional muster. Yet a change in just one vote – by which I mean, of course, had Anthony Kennedy come up tails instead of heads – the Second Amendment would have been rendered effectively obsolete.

Critics of the ruling already are accusing the majority of engaging in the very "judicial activism" that conservatives ordinarily deride, and thus will try to make stick the greater charge of hypocrisy.

But a Supreme Court decision that overturns a legislative body is by no means prima facie evidence of judicial activism. Indeed, the Court has the right – the duty, actually – to strike down laws that violate the Constitution, which the D.C. handgun ban blatantly did.

Real judicial activism occurs when a court strikes down a law that is entirely consistent with the Constitution but carries policy implications that don't jibe with the personal views of, say, John Paul Stevens.

Or when the Nevada Supreme Court, to cite an example closer to home, threatens to toss out a popularly authorized amendment to the state Constitution because it endangers the political objectives of the Court's own members and their political allies.

In response to the ongoing debate over term limits in Nevada – specifically, the date on which the constitutionally imposed term limits are to be effective – the liberal Nevada Supreme Court reportedly has announced it will take up the issue of whether those term limits are even constitutional to begin with. No one asked the Court to consider this question, mind you. But the Court apparently has figured: While we're here, what the heck?

Should the Court remove term limits, it would essentially be ruling that a provision that is now part of the Nevada Constitution somehow violates the Nevada Constitution. In other words, the Constitution would be found … unconstitutional. We're not there yet, of course, but we may be there soon. And Scalia is the judicial activist?

The constant here is that for the Left, even in the supposedly apolitical branch of government, political and policy objectives trump all other concerns.

Only by coming to grips with that reality can one begin to fathom a world in which four justices on the U.S. Supreme Court can conclude that a blatant infringement on the right to bear arms is entirely consistent with the Second Amendment to the U.S. Constitution, while judges in Nevada can entertain the idea that the state Constitution is somehow violated by its own language.

Then again, perhaps we should not be all that surprised. Even the nation's first public officials, noble as they were, recognized the abusive tendencies of government – which, after all, is why they felt the need to write the Second Amendment in the first place.