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Bench Memos

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Waiting for Godot



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Breathlessly anticipating Tuesday’s oral argument in D.C. v. Heller, the gun-rights case, today’s Washington Post features a front-page story by the ordinarily sober Robert Barnes, who tells us that the Second Amendment “has existed without a definitive interpretation for more than 200 years” (my emphasis).  Is that what the Supreme Court is for?  To provide “definitive interpretations” of the Constitution?

Barnes goes on to say that the Court’s decision could (again my emphasis) “finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.”  Oh, so that’s what all this business is about definitive interpretations.  The Court’s role is to “finally settle” questions of interpretation!

Never mind that the Court has many times overruled its own precedents.  Journalism like this reinforces the anti-republican, anti-constitutional idea that the Constitution means whatever the judges say it means, and the rest of us must simply tug our forelocks and say “sorry, squire” when we have strayed from the Court’s approved meaning.

(An aside: the Second Amendment’s “antiquated punctuation” consists of one comma we would consider superfluous today, and the “odd structure” only starts to appear odd as soon as one begins to torture the text with an interpretive end in view.)



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