The term “radical” gets thrown around a lot in politics these days. It’s a warning sign to voters. “Beware this position for it is radical!”
Now, sometimes, it’s accurate. Sometimes, it’s not.
One such time it’s not is when an op-ed tries to argue that the likelihood of the Supreme Court protecting the Constitution of the United States is somehow “radical.” I know, I know, no one’s that dumb, right?
Well, you’d think that. You’d also be wrong.
All that changed in 2008 with the court’s 5-4 decision in District of Columbia v Heller. In striking down a Washington DC ban on handguns in the home, the court’s conservative majority held for the first time that the second amendment “protects an individual right to possess a firearm unconnected with service in a militia”.
Relying on an “originalist” reading of the constitution, Justice Antonin Scalia insisted the supreme court had essentially misread the second amendment for 200 years. Originalists claim that reading the constitution as understood at the time of its adoption makes a judge a more faithful interpreter of constitutional text, although in reality this approach guarantees no such thing. To the contrary, it permits judges to cherry-pick history to reach virtually any outcome, or, as in this case, to radically overturn decades of received wisdom in the name of constitutional “fidelity”.
Not all constitutional rights are created equal. The fifth amendment, for example, guarantees a right to grand jury indictment in federal criminal trials, but the supreme court long ago concluded that because the right was not fundamental, it did not bind state courts. Freedom of speech, by contrast, is a fundamental constitutional right, and so both state and federal governments are limited in their power to regulate speech.
In the wake of Heller, the court left open the question – is the individual right of gun ownership more like the right to a grand jury indictment, or more like the fundamental right to free speech? In McDonald v Chicago (2010), a similarly divided court gave its fateful answer. “It is clear,” Justice Samuel Alito wrote, “that the Framers and ratifiers … counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty”.
In elevating gun ownership into a fundamental individual right, the court has erected a formidable constitutional barrier to shaping a sensible political solution to a horrific national problem.
There are so many problems with this argument it’s not even funny.
The Fifth Amendment, for example, says no person can be held for a “capital, or otherwise infamous crime,” which arguably doesn’t apply to charges in state courts.
But the author continues.
No less troubling is an opinion that Justice Brett Kavanaugh wrote during his tenure as a judge on DC’s federal appellate court. Applying the court’s reasoning in Heller, Kavanaugh argued that any ban on semiautomatic rifles should be struck down as unconstitutional.
That bears repeating: A ban on semiautomatic weapons would be unconstitutional. Using “text, history, and tradition” as his guides, Kavanaugh concluded that semiautomatic rifles “have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses”.
Why does the fact that we’ve permitted such weapons in the past mean that we are constitutionally tethered to them now? The logic again follows straight from the disastrous Heller ruling.
That would be because Heller gave us a test for what weapons can be banned and which can’t. Kavanaugh applied that test to semi-automatic weapons and guess what? He found they couldn’t be banned since they met the criteria.
Honestly, the whole thing is bat-guano stupid, and this is a law professor, for crying out loud.
What it does show, however, is that despite our Founding Fathers best intentions, they didn’t create a system that was fool proof against individuals selectively reading whatever they want into the plain text of the document they built as a foundation for our country. That happened for years, but now we’re seeing the sour grapes of those who found their preferred “interpretation” shut out by Heller.
Doing as the Founding Fathers intended isn’t radical. It’s just right.