Friday, June 27, 2008

The New York Times on Heller 

The editors of the New York Times predictably editorialize against yesterday's Supreme Court decision (District of Columbia v. Heller) overturning D.C.'s ban of handguns on the grounds that the Second Amendment describes an individual right. The editorial not only misstates the decisional history in this area, but it is astonishingly unprincipled in its reasoning:

Thirty-thousand Americans are killed by guns every year — on the job, walking to school, at the shopping mall. The Supreme Court on Thursday all but ensured that even more Americans will die senselessly with its wrongheaded and dangerous ruling striking down key parts of the District of Columbia’s gun-control law.

In a radical break from 70 years of Supreme Court precedent, Justice Antonin Scalia, writing for the majority, declared that the Second Amendment guarantees individuals the right to bear arms for nonmilitary uses, even though the amendment clearly links the right to service in a “militia.” The ruling will give gun-rights advocates a powerful new legal tool to try to strike down gun-control laws across the nation.

This is a decision that will cost innocent lives, cause immeasurable pain and suffering and turn America into a more dangerous country. It will also diminish our standing in the world, sending yet another message that the United States values gun rights over human life.

Of course, all the same things might be said about Roe v. Wade, a decision that the New York Times defends passionately and obsessively, with the obvious difference that there was no actual Constitutional provision articulating anything approximating a right to abortion. Indeed, notwithstanding a rational textual basis for the Heller decision (as opposed to Roe), Heller was substantially less sweeping than the abortion decision, leaving plenty of room for the nuanced regulation of guns. Put differently, even if one were to concede that Heller overreaches in the recognition of an individual Constitutional right to bear arms (and I do not so concede), it does so far less intrusively than Roe v. Wade's construction of a right to abortion. If the editors of the Times were even remotely principled they would admit this much.

There are plenty of Constitutional rights that drive inefficient, inconvenient, or even unwise public policy. One can recognize that a right exists and deplore the consequences of the right. Law-and-order types do not like the exclusionary rule, yet it seems to be the only way to give effect to the Fourth Amendment. Consumer advocates might deplore pharmaceutical advertising, but hey, the First Amendment is always bothersome when it protects speech that we do not like. Well, so it is for people who want to ban handguns. The question is, what stops the editors from saying as much in this case: "We regret the impact of the Heller case and advocate the repeal of the Second Amendment, but Constitutional rights are rarely convenient or even popular in their actual application. Otherwise, they would not need to be rights." The answer, no doubt, is their intellectual dishonesty.


By Anonymous Anonymous, at Fri Jun 27, 06:35:00 AM:

For journalists, their command of English is quite shoddy if they honestly think that "the amendment clearly links the right to service in a militia". Surely the distinction between prefatory and limiting clauses in English sentences would not be lost on such august persons.  

By Blogger davod, at Fri Jun 27, 07:08:00 AM:

"Thirty-thousand Americans are killed by guns every year — on the job, walking to school, at the shopping mall. The Supreme Court on Thursday all but ensured that even more Americans will die senselessly with its wrongheaded and dangerous ruling striking down key parts of the District of Columbia’s gun-control law."

I read the other day that the statistics show(and what the Brady campaign conveniently omits) is that the majority of deaths in the workplace are a result of a hold-up.

Randian: WRT to shoddy language skills. Glen Beck, on his CNN TV show, gave a simple explanation of why the commas matter. If you did the same as people want to do with the second amendment and dismiss the purpose of the comma between militia and the right of the people, then some of the other amendments would not make any sense.  

By Blogger davod, at Fri Jun 27, 07:13:00 AM:

PS: On a further reflection, the newspaper aricle can be read both ways. In every case the proper use of a weapon culd save lives.

Rather like Mayor Daly of Chicago saying (Paraphrasing) that its allright for the SCOTUS they have weapons all around them.

Well not everyone can afforvd a security detail. Why cannot the man in the street have some protection as well.  

By Anonymous Anonymous, at Fri Jun 27, 10:29:00 AM:

SOMEONE START A LOG!!! The lefty media (NYT, NBC, etc.) and, especially, the AP and the fifth column dems from 6/27/08 will try to hang every shooting in the country oh the Heller decision.
The next 100 killings in Philadelphia will be blamed, not on young, black killers and inept city government, but on the "easy availability of "hand carried automatic, terror weapons of immense firepower since Heller."
Let's keep a record of what happens to be compared to the record when all citizens complied with the gun bans!  

By Blogger Andrewdb, at Fri Jun 27, 11:17:00 AM:

"New York times editorializes....misstates the decisional history in this area, but it is astonishingly unprincipled in its reasoning"

That seems redundant to me.  

By Anonymous Anonymous, at Fri Jun 27, 12:09:00 PM:

One of the more hysterical editorials from the NYT in recent memory, and that's saying something.

The insular cluelessness of the final sentence is appalling:

"If the court is allowed to tip even further to the far right, there will be even more damage done to the rights and the safety of Americans."

This in an op-ed about gun rights, in which they *oppose* said rights. This thing could be fisked not just by the sentence, but by the paragraph.  

By Anonymous Anonymous, at Fri Jun 27, 12:13:00 PM:

This too:

"It will also diminish our standing in the world"

Beyond being merely predictable, the NYT is now a parody of a left-wing editorial board.  

By Blogger Escort81, at Fri Jun 27, 12:41:00 PM:

The Heller decision is worth reading, even for a non-lawyer (or perhaps especially for a non-lawyer) like me. Scalia is a bit of a hard ass in dismissing Stevens' contrary arguments, but that's just Scalia being Scalia. There is extensive dissection of the preferatory clause of the Second Amendment and how it connects to the operative clause (which the NYT argues is a limit to the right to bear arms). There's even a discussion of why the Second Amendment doesn't say "to keep and to bear" and simply "to keep and bear," in the sense of whether there is an 18th century term of art involved.

There are two distinct and opposing views expressed in the opinion, and Stevens' dissent states: "Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution," which might come as a surprise to many Americans who kind of like the idea of being able to defend themselves and still be within the bounds of the law.

I don't own a gun, and have no problems with laws requiring background checks and a waiting period. It should be at least as hard to be licensed to own a gun as it is to drive a car. I live less than 10 minutes from the shooting gallery that North Philly has become, but most of the shootings there are from illegal and unregistered guns, and are generally drug-related. If someone wants to own a handgun for home defense and keep it and a loaded clip in the night table drawer, why should that be illegal?

The NYT should start trying to seduce Justice Kennedy so that all of the 5-4 rulings are to their liking (as Andy McCarthy blogged at NRO's Corner yesterday, "It's Justice Kennedy's World ... we're just living in it. Sure, we protect child-rapists and you may even run into the occasional jihadist on the courthouse steps, but — at least for now — we get to own guns to protect ourselves from them. There's got to be a better metric of how much say we have over our own lives than what side of the bed a justice happens to get up on that day, no?"). Which is kind of funny, but one Supreme Court Justice vote either way apparently matters a great deal. Kennedy might be more important and powerful than a lame duck president at this point.  

By Anonymous Anonymous, at Fri Jun 27, 02:12:00 PM:

Several commenters at various places have mentioned just how close this vote was. They expected at least 6-3 if not 7-2. However, I believe that we got as strong a ruling as we did because the fab four of Scalia, Roberts, Alito and Thomas shaved just enough to lasso in Kennedy. Think of what else they might have had to give up in the decision to rope in two more justices. I think, "Nicely played."

There is something else that is good about this decision; it upholds and properly interprets Miller. In Miller there is no doubt that Miller is a member of the unorganized militia. If we remember that Miller and the late Lawton were exonerated at the appellate level and the case was taken to the supremes solely by the Justice Dept. and that since Miller was free and couldn't be re-convicted on double jeopardy grounds, no one represented him. The case against the sawed-off shotgun went something like this: "It is not within judicial notice that a shotgun with a barrel of less that 18" is of use in the militia." Or somesuch wording. I'd think that you could use these two decisions together to get NFA '34 and NFA '68 knocked down just by showing the utility of various banned weapons for militia use. Our tunnel rats used them in Viet Nam.


By Blogger Assistant Village Idiot, at Sat Jun 28, 11:17:00 AM:

In general, the anti-gun crowd seems to think that less gun control will mean more gun deaths. So they panic and stop thinking or listening.  

By Blogger davod, at Sun Jun 29, 09:25:00 AM:

I like this response on the Armchair Generalist blog:.

To J, Ann Gaothin and others, this is from Federalist #46, written by "Publius" (James Madison):

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it."

James Madison was, in case anyone's forgotten, the principal author of the Constitution. Note how he is specifically addressing the possession of firearms by the citizenry and how that might be handy in dealing with a central government. Yes, he discusses the "militia" and its officers, but, as has been previously noted, this wasn't today's National Guard. The militia was you and me, residents of our towns, who then selected our officers. Remember, this was a much smaller America, not the bureaucratic nightmare at all levels that it is today. And where did the arms come from? Did the state issue them? Did Connecticut or Virginia maintain armories from which they could issue weapons in the event they decided to march on Washington? No, they didn't.

The arms were already there. In the hands of the citizens. And you know that. If you don't, learn your nation's history. Our Founders taught us that if we didn't like the direction our central government was taking, it was our duty to overthrow it. They did and they left us the means to do so as well.

You know, you're all kind of right about the whole collective argument, but the problem with the system our Founders put together is that because government wasn't to be trusted, the weapons couldn't be under government control. That's the real problem with the "militia" argument. The militia was everybody—not just guys who signed an oath and wore uniform—and they owned their weapons, which weren't under the control of any governmental body.

Posted by: Publius | 29 June 2008 at 12:16 AM  

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