Thursday, June 26, 2008

...shall not be infringed.

As a Political Theory/American Government major at Georgetown University I took numerous courses from my mentor, Professor George Carey. Carey is a brilliant mind and one of a few if not the only conservative-leaning professors at the University. Freshman year (fall '89) I somehow lucked into being randomly assigned to his American Government intro course.

Carey is no ideologue but a conservative in the intellectual, libertarian, constitutionalist, and federalist senses. I owe him more than any other teacher I have ever known.

He is one of the foremost authorities on the Federalist Papers and wrote a companion book called The Federalist: Design for a Constitutional Republic.

Anyway, in Fall '94 I was in Carey's colloquium Theories of Judicial Interpretation. One day he announced that an upcoming meeting would be in a different room with a surprise special guest. He had said it over several classes but I had forgotten about the special guest when the day arrived.

In walks Justice Antonin Scalia. He spoke for about 30 minutes and spent the rest of the class answering our questions. He was very down-to-earth, witty, and gracious, even staying past the end time to answer a few more.

My question to Justice Scalia : Will the Supreme Court ever take a case and make a clear ruling affirming the 2nd Amendment as an individual right?

He was very candid about how the issue is divisive and highly politicized (at the time the Clinton gun control push was in full swing). He said the Court has long avoided addressing it directly and that he didn't think this would change in his lifetime, or at least his tenure. It was sort of a "wouldn't touch it with a 10 foot pole" response.

Since that time I have vehemently disagreed with many of Scalia's decisions - in fact, almost all of them since December 2000. But this time he really really got it right.

I am glad the prediction he gave me 14 years ago proved his own hand, no less.

With the recent flow of affirmations of individual rights coming out of 5-4 decisions, I am beginning to think this conservative-liberal majority ping-pong on the Court is working out quite nicely for libertarian jurisprudence.


Brian said...

Dear God I hope so Tyler. For the protection of the people and their liberties (all of them) would be a victory today to rank with the greatest judicial decisions we have ever had.

Delaware Watch said...

I agree w/ the outcome, but the business of treating the militia clause as if it were a throw away line and doesn't impose a limitation on the purpose for owning a gun is transparent bunk in my view.

But I agree w/ the decision for reasons that have nothing to do w/ amendment and the bogus rendering Scalia gave it in his very non-orginalist ruling.

The tradition of owning firearms has gone on too long for any change. And I agree w/ M. Moore, violent crime in the US has nothing to do w/ the number of its guns. And I remember when I used to like to hunt.

So I'm glad for the outcome. But I do get sick when I see Scalia on C-Span getting righteous about keeping faith w/ the original meanings of the founders when he pulls off liberal activist interpretations like this one.

Steve Newton said...

To some extent I agree with you about the militia point, but I take a different tack.

Like the provision against quartering soldiers or the restriction in the main body of the Constitution about forfeiture of blood, or even the debt provision which allowed/required the Federal government to assume the state Rev War debts in order to pay off the speculators at the Convention there are a lot of provisions in the Constitution that explicitly dealt with issues pertinent at the time of the adoption.

As near as I can tell with the militia reference it actually grew out of Shays' rebellion and was a shot (pardon the pun) at the states which had not maintained a "well-ordered militia" to put down that incident.

I have spent a lot of time reading the people who actually were involved in the debate, and Madison in particular argues several times that the yeoman farmer must have the right to his own firearms to secure himself from a government run rampant.

Also, just as trivia, in the next to last draft of the amendment it actually included a provision to prevent Congress from restricting the right to hunt and fish.

On the other hand, while he's right on this issue and the dissents of Breyer and Stevens are simply embarrassing, Scalia usually rubs me the wrong way, too.

Brian said...

I keep thinking of Madison during the War of 1812, and how he had to butt heads with the war department over Andy Jackson's militia. After that war for a time, there was no question about the wisdom of the second amendment- when we were invaded Jefferson's wisdom proved to be correct. That by giving the people guns they could throw off the foreign invader Great Britain, and protect their homes and property. Here in Delaware it is particualrly notable that our merchants along the Delaware bay were often boarded and being taken hostage and we used a peaceful tact, but sent men and guns to Lewes and the Delaware Militia was a potent force in protecting our state; and that McDonough basically founded a blue water navy for this reason. Our pirates down south were also very helpful, one only needs say the name Jean Lafitte and how he brought his artilery to the Battle of Lake Ponchatrain to understand how the second amendment was meant to work. But then again as in the case of defensive warfare, we showed that it is the people who protect and own the nation. A nation is always more than land and cpaital, it is people, and while generals may win battles it is the people who win wars.

Anonymous said...

The first ten amendments were for protections of individual rights.

If the new congress wanted to establish a permanent military, that would have been better suited somewhere else in the founding documents. Where control of the military, its purpose and use, and it's funding would be clear. In the organization of the Government, NOT in the Bill of Rights.

The opening clause, I agree with Scalia, is to draw the parallel between the security of the state ( meaning the nation ) and the security of each and every individual. The right to DEFEND themselves.

The state needs to defend itself, and so does the individual.

And that RIGHT shall not be infringed.

All things being EQUAL " Family; economics; Jobs; Drug buy, sale and use, Educational opportunity; and ACCESS to GUNS; .... Wilmington has a festering problem in certain neighborhoods, THAT conventional WISDOM has NOT been able to recognize.
The problem in WILMINGTON is NOT using WEAPONS for DEFENSE,
but the ABUSE by PARASITES on SOCIETY WITH the OFFENSIVE use of WEAPONS in the commission of CRIMES.

MILITIA has Nothing to do with the second amendment other than to clarify the needs of the individual, as similar to the needs of the country. Each needs to defend itself, independently.

Call a COP, and see how long it takes for them to come to prevent you from being harmed.


Anonymous said...

Many people can not afford Health care or INSURANCE.
How many more can not afford the loss of necessary property for the health, feeding, transportation and care of their family and home?

Crime, even on property, has a COST that eventually becomes a LIFE and DEATH issue for the family.

Anonymous said...

"Crime, even on property, has a COST that eventually becomes a LIFE and DEATH issue for the family."

I agree, loss of property does affect the well being of the family.

Consider this, a one time expense of purchasing a gun and ammunition, amortized over 20 to 50 years IS very cheap SELF insurance.
And at the end of the term, the gun still retains value.