Tuesday, October 3, 2017

Justice Scalia and A Well Regulated Militia

If ever you need a good laugh, or if ever you need a good cry, or if ever you need something to get your blood boiling and your brain exploding, just to reassure yourself you are actually still alive and capable of outrage, or if you simply want to reassure yourself that mental masturbation was alive and well among the justices of the Supreme Court in June, 2008, go on line and read Justice Scalia's opinion which reversed centuries of Supreme Court precedent and delivered the right of any half witted citizen the right to buy, possess and use firearms in the comfort of his own home. Not just firearms, but specifically hand guns.

The case is "Heller v District of Columbia," and, to Scalia's credit, he begins with the "prefatory phrase" which he agrees is "unique" in the Constitution, in that it is the only place in either the Amendments (Bill of Rights) or the articles where the founders (of whom Scalia is enamored to the point of ancestor worship) actually explain why they are granting and defining a "right."

Scalia has a real problem here and over the next 10 pages or so he tries to wriggle out of his dilemma with allusions to what the country was like in those days when gods in powdered wigs roamed the land and wrote the Constitution, which, next to the Bible, is the holiest book on earth, handed down engraved originalist parchments, which may or may not have been in gold plates, buried and then rediscovered--I'm not sure, I may be mixing up the Bible with the Constitution or the Book of Mormon.

The problem, of course, is that the founding fathers did not always write with the precision and clarity of Madison, but sometimes more in the ornate and blurry style of Hamilton, who may have written like he was running out of time, which is to say, voluminously, but who often could have done us all a favor if he had taken time to edit.  But, in the case of the Second Amendment, they took care to say, okay, this might sound a little crazy, but since we have no standing army and the only way we have of defending our new nation is these local militias made up of men who have a flintlock above their mantle places, we have to assure that no government, like the King's government we knew in the early part of the 18th century, will come by and demand citizens hand over their guns.

After all, we need those militias, as long as they are "well regulated."  The founding fathers, note, did not shrink from that idea of "regulations."  (Donald Trump would not have done well as a founding father. )

Of course, for Justice Scalia, it's always a question of "What would Jesus do?"  or, in the secular case of the Constitution, "What would Jefferson and Madison have said?"
So he gets to arguing with Justices Stewart and Ginsburg over the meaning of to "keep and bear"  arms.  He digs out his 1773 edition of Samuel Johnson's dictionary (you cannot make this stuff up) and after several wearisome paragraphs he grapples with Justice Stevens' observation that James Madison, in his original draft of the Second Amendment adds a conscientious objector clause "but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."

Well, this is a problem for Justice Scalia because it reveals quite clearly what the founding fathers really were talking about--they were talking about arms as a part of an armed service, a regulated militia, not some nutcase who is stocking up his own arsenal hoping to arm all the Indians in a revolt against a whiskey tax.

But Scalia quickly dismisses all this evidence with a breezy well, this was a rough draft, and we can't be imputing motives or causes to rough drafts.

But the deed was done--this was all about military arms, military service not guns for personal use.

Scalia then entertains the folks with the observation that Catholics convicted of not attending service in the Church of England were penalized by losing their "rights to keep arms in their houses."  Scalia is never one to miss the opportunity to talk about Catholics or their history. 

The real question is, of course, do we want to live with what we regard as a living Constitution or with a secular Bible--if we prefer Bible, then we are in pursuit of knowing the mind of God, or in the case of the Constitution, the minds of gods.

It's entertaining, no doubt, for Scalia to skulk around looking for copies of a 1773 dictionary and to speculate about what Madison was really thinking, but the outcome of Scalia's prejudged decision, that he was determined to find a way to allow anyone who likes guns to own and use them, no matter what, is that we are left with a nation in which mass shootings by lunatics are visited upon people at concerts, movie theater goers, elementary school children, people on streets, people in churches and any place of congregation, all because we have some overstuffed Justice of the United States Supreme Court, who doesn't give a damn.

I suspect that when Roger Taney wrote his opinion in the Dred Scott case, he started, as Justice Scalia, with the end point, where he wanted to go--no slave can sue in the Supreme Court for his freedom--and he got there by similar exercises of thought contortion--oh, he cannot sue because animals cannot sue in the Supreme Court, nor can vegetables, only human beings, only men (and, on a generous day, perhaps women) may sue in the Supreme Court. This is called "standing." Slaves, dogs and pigs have no standing to sue in the Court.  Given that pretext, all the rest follows.

And now, given the faces on the current Court, that is where we remain.

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