History of March 18th, 2008

While others have commented on Senator Obama's speech on race, I would also like to note that, yesterday, the meaning of the Constitution changed when few were looking.

The Supreme Court heard oral arguments in D.C. v. Heller, which discusses whether or the second amendment constitutes a group or individual right and whether or not the District of Columbia's handgun ban was constitutional and. According to Dahlia Lithwick at Slate, it took the Court only eight minutes in the oral arguments to show there were enough votes for an individual right interpretation.

Dellinger opens by whooshing us back in time to the framers, who, he says, used the words "bear arms" to mean "rendering a military service." Chief Justice John Roberts immediately asks why the framers wrote "the right of the people" if they merely meant "the right of the militia." Justice Kennedy spoils any suspense by telling Dellinger, in the form of a question, that he has no problem "de-linking" the two clauses to read the first as "reaffirming" the right to a militia and the second as enshrining a right to bear arms. Justice Antonin Scalia does Kennedy one better and contends that the two phrases "go together beautifully." That's five votes to create a fundamental right to bear arms, only eight minutes into the argument.

All that is left for the Supreme Court is to determine what level of review is necessary for gun bans, if you can have bans on guns in the first place. If you read the Slate article, it is pretty unclear as to what that standard will be. There seems to be an idea that some guns, such as machine guns, may not be allowed and that some measures for safety would be okay (as some children may not be fighting bears or fighting off tyranny) but how you reach that point is a beautifully unanswered epistemological question.

Overall, yesterday's case seems to be the Roe v. Wade for Conservative justices. We now have "new" fundamental rights, established by [conservative] judicial activists while those [liberal] justices in favor of judicial restraint believe is allow local branches of government to decide cases. While I agree that the second amendment relies on an individual right interpretation, I still think that the decision making process on display is quite unique. From Slate:

I sometimes fall for the old line that there's no such thing as politics at the high court; there are merely different interpretational tools. Not today. Today we have four liberals rediscovering the beauty of local government and judicial restraint and five conservatives poised to identify a fundamental personal right that will have judges mucking about in gun cases for years to come. After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right. And while they don't seem much concerned about how the judges will manage it, they've just about ensured that judges around the country will soon be ruling in gun cases the way they used to rule on speeding tickets.

On a side note: I had lunch with colleagues yesterday and the D.C. case come up, quickly. Rather than discuss the facts of the case or the competing interpretations of the second amendment, as well as the other amendments, the conversation ended abruptly as that the decision would be wrong, end of debate as guns are bad. Period.