Those who are wondering why exactly they should be alarmed by the prospect of President Obama’s replacing Antonin Scalia with yet another advocate of the “living Constitution” should look no further than the possibility that a post-Scalia Court will overturn D.C. vs. Heller.
I do not issue that warning in my capacity as a champion of the right to keep and bear arms (although I will concede that I am that), but as somebody who believes that history matters a great deal and who does not want to see it rewritten in the name of transient expedience. It is often presumed that my support for Heller is the natural product of my having come around on the question of gun rights per se. This, I’m afraid, is incorrect. Certainly, I have changed my mind as to the wisdom of an armed populace (I used to be vehemently “anti-gun”), but that conversion has had no meaningful bearing on the effects of the Constitution, and nor should it. I also happen to be opposed the death penalty, but this has no more led me to pretend that the Eighth Amendment prohibits capital punishment than my opposition to abortion has pushed me to pretend that the commerce clause would allow a federal ban. The text is the text, whatever I might think of the outcomes it yields, and it must be treated as sacrosanct at all times. The Constitution protects the right to keep and bear arms not because I like the right to keep and bear arms, but because the evidence points overwhelmingly in that direction.
We can, of course, have a legitimate debate as to what limits may be imposed upon the amendment’s scope. Indeed, writing for the majority in Heller, Antonin Scalia did just that, conceding readily that the protection was not infinite. (This concession should not be taken to mean that the right is not robust, merely that Hugo Black-esque, strict-constructionist absolutism is misguided). What we cannot do, however, is pretend that the amendment means what it plainly does not. In order to make the case that the Heller dissenters made, one not only has to ignore the relevant history, commentary, and linguistic norms, but to contend in true “Mad Hatter” fashion that the Founders’ intent in drafting the Second Amendment was to protect the right of individuals to join an organization over which the federal government enjoys plenary power. That is preposterous.
The Second Amendment’s more honest critics (Dershowitz, Levinson, Tribe, etc.) are admirably unwilling to lower themselves to making such a contention, and will thus acknowledge its meaning even as they call for its repeal or its limitation. Alas, at least four members of the Supreme Court — namely: Ginsburg, Breyer, Stevens, and Souter — have shown no such honor, and it is reasonable to assume that if Obama gets his way they will be joined by a fifth. At that point we would be on the verge of a five-judge majority reading one part of the Bill of Rights out of existence completely.