The New York Times & The Subversion of Democracy

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

- - - - 2nd Am., U.S. Const.

The NYT does not care what the people who drafted our Constitution intended it to mean. Nor does the NYT want to go through the trouble of using the process provided in the Constitution to amend it. Such an amendment would express the clear and democratic will of the nation. What the New York Times wants is for our judicial branch to advance the neo-liberal agenda, irrespective of all. This subverts democracy. It is the type of judicial activism embodied in the theory of a “Living Constitution.”

This today from the editorial board of the NYT on the Supreme Court’s decision to take up the case of District of Columbia v. Heller.

By agreeing yesterday to rule on whether provisions of the District of Columbia’s stringent gun control law violate the Second Amendment to the Constitution, the Supreme Court has inserted itself into a roiling public controversy with large ramifications for public safety.

.. . The hope, which we share, is that the court will rise above the hard-right ideology of some justices to render a decision respectful of the Constitution’s text and the violent consequences of denying government broad room to regulate guns. The fear is that it will not.

Posing this as a neo-liberal / conservative issue always amazes me. Contrary to what the NYT asserts, the division on the Supreme Court is between originalists and judicial activists. It is not a liberal / conservative divide. It’s the difference between originalists, justices who believe that they are constrained to decide Constitutional issues within the framework of what they believe was the intent of the drafters, and judicial activists who act as unelected supra-legislators, sometimes with decidedly non-liberal results.

To continue with the NYT's argument for judicial activism:

At issue is a 2-to-1 ruling last March by the United States Court of Appeals for the District of Columbia Circuit that found unconstitutional a law barring handguns in homes and requiring that shotguns and rifles be stored with trigger locks or disassembled. The ruling upheld a radical decision by a federal trial judge, who struck down the 31-year-old gun control law on spurious grounds that conform with the agenda of the anti-gun control lobby but cry out for rejection by the Supreme Court.

. . . Opponents of gun control sometimes claim a constitutional prohibition on any serious regulation of individual gun ownership. The court last weighed in on the amendment in 1939, concluding, correctly in our view, that the only absolute right conferred on individuals is for the private ownership of guns that has “some reasonable relationship to the preservation of efficiency of a well-regulated militia.” The federal, state and local governments may impose restrictions on other uses — like the trigger guards — or outright bans on types of weapons. Appellate courts followed that interpretation, until last spring’s departure.

Leave it to the NYT to misstate the law. The 1939 case to which they refer is U.S. v. Miller, 307 U.S. 174 (1939). You can find it here. Miller concerned whether the Second Amendment prevented the U.S. government from delaring illegal the possession of a sawed off shot-gun. The Court did not address the scope of an individual right to keep and bear arms beyond saying that a sawed off shotgun is not a weapon normally associated with a militia and, thus, fell outside the scope of Second Amendment protections. That’s it. The NYT grossly overstates the scope of the Court’s holding as to the Second Amendment.

And as to the D.C. Circuit case that is now on appeal, that case is Heller v. District of Columbia. You can find the Circuit Court opinion here. The “spurious grounds” upon which the Justices decided the case were nothing more nor less than what they saw as the original intent of the people who drafted the Second Amendment. And it is of some interest to note that the Court relied in part on the Constituional treatise of law professor Laurence Tribe, a man who is nothing if not an old school liberal liberal.

Here is what the “radical” D.C. Court considered to arrive at its conclusion in Heller. Focusing first on the operative clause of the Second Amendment, that “the right of the people to keep and bear arms shall not be infringed,” the Court reasoned

1. The language used by the drafters to define to whom the right belonged - i.e., “the people” - was the same language used by the drafters to grant individual rights throughout the Bill of Rights.

2. The history of the Second Amendment shows that it was not a right created by the drafters. Rather it was the memorialization of the established English common law right of an individual to bear arms for self defense.

3. Considering the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature. The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment’s inclusion therein strongly indicates that it, too, was intended to protect personal liberty.

4. The term “bear arms” can be construed to refer to the military, but a fair reading of that term does not exclude individuals. This finding was based in part on a dissent in a prior case written by Justice Ginsberg and joined by Justices Scalia and Souter.

5. The proposition that the language “bear arms” creates an individual right becomes clearer when considering the preceding language, “to keep.” “Keep” is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use.

The "radicals" of the D.C. Circuit Court then turned towards the prefatory language of the Second Amendment, that “A well regulated Militia, being necessary to the security of a free State:”

1. The term “militia” at the time that the Constitution was drafted meant all able bodied men. It was well established in the law of the time that all such men were to be enrolled in the states' “militias.”

2. All men were required by law to arm themselves at their own expense and to bring their weapons with them to military service.

3. Documents of the era indicate that the Federalists who dominated the First Congress offered the Second Amendment’s preamble to palliate Antifederalist concerns about the continued existence of the militias. But neither the Federalists nor the Antifederalists thought the federal government had the power to disarm the people.

4. Documents of the era show that Antifederalists insisted that an armed populace was not enough, and that the existence of a popular militia should also be guaranteed. This fully explains the prefatory language and the individual right to keep and bear arms by the people.

On the basis of these findings, the District Court held that the Second Amendment confers an individual right to all Americans to "keep and bear" arms. They also concluded that such a right can be subject to reasonable restriction, but that the D.C. laws were unreasonable as written. Accordingly, the Court held that the D.C. ban on handguns was unconstitutional, as was the requirement that any firearms kept in the home be unloaded and disassembled or fitted with a trigger-lock.

The NYT views this case a popular political issue rather than an issue of Constitutional interpretation. Politics is the province of the legislature, not the Courts. The Times wants the Court to legislates its the outcome that will advance their own social(ist) agenda, presumably on some “penumbra of rights” not apparent anywhere but in the minds of activist Judges and the neo-liberals of today’s left. That is why the neo-liberals of today have turned the selection of Circuit Court judges and Supreme Court justices into a political war. They do not want intellectual honesty from the courts, they want activists willing to interpret the Constitution to satisfy their “progressive agenda.”

Lest there be any doubt about that, the NYT concludes

A lot has changed since the nation’s founding, when people kept muskets to be ready for militia service. What has not changed is the actual language of the Constitution. To get past the first limiting clauses of the Second Amendment to find an unalienable individual right to bear arms seems to require creative editing.

Beyond grappling with fairly esoteric arguments about the Second Amendment, the justices need to responsibly confront modern-day reality. A decision that upends needed gun controls currently in place around the country would imperil the lives of Americans.

I rest my “fairly esoteric” case.