"A New Constitutional Right"

A lot has been made recently over Slate legal columnist Dahlia Lithwick's characterization of the Supreme Court's Heller arguments as "fall(ing) in love with a new constitutional right." Eugene Volokh and Glenn Reynolds, among others, took exception to her choice of words.

Thomas Girsch, guest-posting at SayUncle (and crossposting at LeanLeft) finds this amusing, apparently, and links to a post at Obsidian Wings on the topic. I read the piece. Written by "Publius," I for one have to take extreme exception. He (or she, you never can really tell on the internet) states:

(T)he meaning of constitutional text isn't self-evident. To be blunt, the Constitution means what the Court ultimately says it means. We can say "First Amendment" all we want, but it's ultimately the Court that defines the scope and meaning of the "freedom of speech" text as applied to various types of circumstances (e.g., Bong Hitz 4 Jesus, crowded theater, libel, etc.). Now maybe you like this, and maybe you don't. But that's the way things have been for some time.

In this sense, the "individual rights" interpretation of the Second Amendment is absolutely a "new" constitutional right. Courts have traditionally adopted a "collective/militia" interpretation. Maybe that's good, maybe it ain't. But that's been the traditional judicial interpretation.

That depends on just how far back you want to go in your research into "judicial interpretation." It would appear that depth of inquiry only goes back as far as you can find (or interpret, or invent) the finding you want. If you go too far, well then, the decisions must have been flawed or otherwise discountable.

I've been through this before with the "honorable opposition."

The earliest case in which the Supreme Court discusses what are our individual rights as citizens is Dred Scott v. Sanford in 1856 - a case in which seven of the nine Justices decided that blacks could not be citizens - slave or free - because citizenship:

"would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

In that I count: freedom of speech, freedom of assembly, freedom from unreasonable search and seizure, and the rights to keep and bear arms outside of any mention of militia service.

This was followed by U.S. v. Cruikshank in 1875, which declared that the right the Second Amendment protected was "that of 'bearing arms for a lawful purpose.' " Not only that, but that right "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." No, in that case the Supreme Court declared that (and Alan Gura made use of) the Second Amendment prevented only the Federal government from passing laws infringing on it.

D.C. is under Federal law, not State.

But Cruikshank made it OK for states to violate this pre-existing right to "bear arms for a lawful purpose." Again, no mention of militia service was made. Apparently the 1875 Supreme Court hadn't yet had a chance to study up on the (1868) 14^th Amendment's first paragraph, the second sentence of which is:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

You know, the "privileges or immunities" listed by the Court in Dred Scott, one of which was "to keep and carry arms" wherever we go?

Third, in Presser v. Illinois of 1886, the Supreme Court found it was acceptable to forbid private militias, using Cruikshank as precedent, but - most fascinating - that court stated not once but twice that:

(I)n view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security.

and:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

Yet, we are to believe, the right to arms is a new right, heretofore undeclared and unrecognized by the Supreme Court?

I was called on this by a commenter, once. He said:

In the Supreme Court cases from which you quote, all individuals who sought protection under the Second Amendment LOST.

Indeed, they did.

I replied:

BINGO! You win the kewpie doll! Let me rephrase your statement a bit more accurately: In the Supreme Court cases from which I quote, the Supreme Court was complicit in violating the right(s) it was tasked to defend.

And the excuse used each and every time? Let me quote Mayor Adrian Fenty:

I want to again emphasize that this case is a public safety case.

"Public Safety." That was the argument the Dred Scott court used to deny citizenship to a whole class of people. Here's the quote again, with one extra line:

(Citizenship) "would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."

Boy, good thing the Court didn't find in favor of Mr. Scott and his entire race. There might have been a Civil War or something!

As I have said before, the history of the Second Amendment is what has made me an advocate for it. Its legislative and legal history illustrates precisely what happens when judges and legislators "constitutionalize their personal preferences" instead of upholding their oaths to "support and defend the Constitution of the United States."

The Supreme Court has the opportunity to correct 151 years of bad precedent and protect the rights of individual citizens whose rights they've folded, spindled, and mutilated in the name of "public safety."

Long ago, Thomas Jefferson found a quote by Cesare, Marquis of Beccaria in his 1764 treatise On Crime and Punishment so profound that he copied it into his own "Commonplace Book":

Laws that forbid the carrying of arms ... disarm only those who are neither inclined nor determined to commit crimes ... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

Here we are, over two hundred and forty years after Beccaria's astute observation, and still we are arguing over whether disarming the law-abiding should be legal, and Fenty is arguing that disarming the law abiding has made them safer.

It's insane, and it needs to stop.