The Living Constitution And Second Amendment Alarmism


With the death of Supreme Court Justice Antonin Scalia, the American philosophical divide has been thrown wide open, particularly on the issue of gun control. One side that believes the Constitution means what it says and can be readily understood by the common man, warns that if the ideological balance on the Court could shift from a bare majority that usually interprets the Constitution based on its text and the clear intentions of the founders, to the current minority that would regularly make law based on progressive desires alone. The other side is warning that establishing a larger constitutional majority on the Court would result in the Court deciding cases more regularly on the text of the Constitution and the intent of the Founders.

The horror.

To that end, Democrats that have regularly obstructed the Supreme Court nominations of Republican presidents are now screaming that the Senate must immediately confirm whomever the President nominates, or be in violation of the Constitution for doing what they have regularly done. It is no small irony that the President will surely nominate someone dedicated to the ideology of a “living Constitution,” which can best be understood as a Constitution that has no fixed, understandable meaning or intent. It means whatever Progressives want it to mean for their transitory political purposes.

Of one thing, however, we can be absolutely sure: if the living Constitution ideology ever gains a majority of the Court, the Second Amendment is dead. How can we know this with certainty? Isn’t the Heller decision (2008) the law of the land? Didn’t it, once and for all and finally, acknowledge the Second Amendment does indeed affirm an individual right to keep and bear arms? It does, but that means nothing. The Supreme Court may choose to uphold precedent, or obliterate it, as the majority desires.

Heller failed to delineate the full scope of the right. Take, for example, concealed carry. A number of lower courts have ruled that the Second Amendment does acknowledge a right to carry concealed weapons, under the general logic that what good is the right if one can’t carry firearms wherever they might be? The right to self-defense is essentially meaningless if one is not allowed to carry the means outside of the boundaries of their home or property.

As compelling as this reasoning might be, the Court could easily rule that while the Second Amendment does acknowledge an individual right to keep and bear arms, that right does not encompass concealed carry; or semiautomatic handguns; or open carry; or hollow point ammunition; or magazines of more than 5 round capacity; or loaded handguns; or “assault weapons”; or ammunition containing lead; and the list is essentially endless.

Some will surely say this is alarmism. It would never happen. Remember that one of the primary tactics of the anti-liberty, anti- Second Amendment movement is denying their true intentions until they think they have an opportunity to get their way. Even then, they often deny that what they are trying to force into law is what they are trying to force into law. Anti-liberty forces have tried to enact all of these restrictions–and more–into law, and thus far, and in most places, failed.

It must also be distinctly understood that Progressives take the long view. They never give up. They worked for a century to enact Obamacare, and they would like to go even further, imposing a single payer scheme on America. They will do no less in their desire to destroy the Second Amendment, even if it takes three centuries.

But no one needs to embrace my words, my analysis. The best source for understanding what the living Constitution activists of the Supreme Court would do to the Second Amendment is readily available for all to read: Justice Breyer’s minority dissent in District of Columbia v. Heller (2008).  The dissent was written by Justice Breyer and joined by justices Stevens, Souter and Ginsburg. The replacements of Justices Stevens and Souter, Sonia Sotomayor and Elena Kagan, have already voted against the Second Amendment at every opportunity; they are reliable votes against the Constitution. Breyer began:

Justice Steven Breyer credit:
Justice Steven Breyer

“We must decide whether a District of Columbia law that prohibits the possession of handguns in the home violates the Second Amendment . The majority, relying upon its view that the Second Amendment seeks to protect a right of personal self-defense, holds that this law violates that Amendment. In my view, it does not.”

The DC law under review made it essentially impossible for the law- abiding citizen to keep and bear arms or to use them for self-defense. Concealed carry was reserved for the politically connected, rich and powerful–and few of them–and storage requirements in the home made it virtually impossible to use guns for self-defense even there. Breyer continued:

“The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.”

In this single paragraph, we see the heart and soul of the anti-liberty argument: the Second Amendment confers only the right to keep and bear arms if one is a member of a government militia, and self-defense is no justification for keeping and bearing arms. Once one accepts these two tyrannical principles, the Second Amendment becomes meaningless and has no utility, no effect in the lives of individual Americans. Individual lives have no value, except in their obedience and utility to the state. Breyer makes this clear in the next paragraph:

“The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are—whether they do or do not include an independent interest in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.”

This is the principle to which I earlier referred. The Court need not abolish the Second Amendment entirely. By relying on the principle that no right is absolute and “reasonable” restrictions may be imposed on any right by government, there is no need to entirely overturn the Second Amendment. It may continue to exist in the fading ink written on the yellowing parchment of the Constitution. However, there is no restriction the court will find unreasonable, and Breyer argues that the most minor scrutiny is appropriate for Second Amendment challenges. If the government wants any Second Amendment restriction, the living Constitution Supreme Court will hold it needs no greater justification than that it wants it.

Even the fact that firearms in the hands of the law-abiding save innumerable lives doesn’t move Breyer:

“No one doubts the constitutional importance of the statute’s basic objective, saving lives. See, e.g., Salerno, 481 U. S., at 755. But there is considerable debate about whether the District’s statute helps to achieve that objective.”

Here he is defending the DC law, which, according to him, saves lives–and prevents crime–by depriving the law-abiding of the means to protect themselves. I need not recount Washington DC’s well-deserved reputation as a violent, crime-ridden city. Apparently the DC law was somewhat less effective then Breyer was willing to admit. Breyer takes pains to quote misleading and false statistics, obviously provided by anti-liberty organizations. He was, however, willing to consider the legitimate needs of the law-abiding (I’m removing only lengthy case citations):

“The District’s law does prevent a resident from keeping a loaded handgun in his home. And it consequently makes it more difficult for the householder to use the handgun for self-defense in the home against intruders, such as burglars. As the Court of Appeals noted, statistics suggest that handguns are the most popular weapon for self defense… And there are some legitimate reasons why that would be the case: Amici suggest (with some empirical support) that handguns are easier to hold and control (particularly for persons with physical infirmities), easier to carry, easier to maneuver in enclosed spaces, and that a person using one will still have a hand free to dial 911… To that extent the law burdens to some degree an interest in self-defense that for present purposes I have assumed the Amendment seeks to further.”

Breyer’s further analysis concludes that these reasons are insufficient, and not protected by the Second Amendment. The burdens the law placed on the law-abiding were reasonable. Making it a crime for citizens to keep loaded firearms in their homes to repel armed, violent intruders bent or robbery, rape or worse is perfectly constitutional for Justice Breyer. Note his concluding paragraph:

“The argument about method, however, is by far the less important argument surrounding today’s decision. Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”

Are living Constitution activists the least bit shy about sweeping away, with the stroke of a pen, innumerable laws with which they disagree? Of course not. Thus Justice Breyer’s supposed worry about anti-gun laws being ruled unconstitutional is not only disingenuous, but blatantly hypocritical. Notice too, that Americans have no right to keep loaded guns in their homes; forget the “bear” part of the Second Amendment.

Justice Stevens’ separate but concurring dissent give no more comfort for those sworn to uphold and defend the Constitution:

“The question presented by this case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.”

For Justice Stevens, there is an individual right. However, what he gives with his right hand, he takes away with his left. In other words, the Second Amendment refers to a fundamental, unalienable right, but the government may regulate it out of practical existence. There is no restriction on that right that Justice Stevens and his living Constitution fellows would find in violation of an “on paper only” Second Amendment.

Are those that claim a “living Constitution” Supreme Court majority would eliminate the Second Amendment engaging in deceptive alarmism? The words and writings of the living Constitution faction make clear they would do exactly that, and at their first opportunity. Another source of this reality is an article I wrote for PJ Media in 2010, about an appearance by Justice Breyer on Fox News Sunday.

It’s unlikely such a majority would declare the Second Amendment unconstitutional. More likely is the approach suggested by Justices Breyer and Stevens: unlimited restrictions on a limited right. Would an absolute ban on gun and/or ammunition ownership be permissible? Of course. Seizure of all guns and ammunition? Certainly. A living Constitution court could and would fundamentally change the relationship between government and the citizenry. Americans often take solace in the idea that government gets its limited power from them; they are the masters, elected representatives the servants. Without the Second Amendment, without a Second Amendment that recognizes a fundamental, unalienable right, saying such a thing could be deadly. The power relationship between government and Americans would utterly change.

And that’s the point, isn’t it?