While sitting a few seats away from Vermont Senator Patrick Leahy, Senator Feinstein announced that Vermont and California are not the same. You see Vermonters love guns and Sen. Leahy has an “A” rating with the National Rifle Association. Sen. Feinstein hates that.
Between the lines we know that she wishes the 2nd Amendment didn’t exist. As a result she is troubled that California’s attempts to regulate guns will now be subject to “legal tests.” She wonders how willing Kagan would be to overturn Heller and McDonald, landmark cases on the Second Amendment right to bear arms. (Roe, on the other hand, is apparently super duper duper precedent.) Feinstein probably did not mean to make such a profound statement when she regretted the “legal tests” gun laws would now have to satisfy, but in one sentence she just captured the essence of progressive objections to the U.S. Constitution. What she calls “legal tests” we call the “Second Amendment,” and where she sees inconveniences we see structural restraints on government overreach. On this point, is always worth recalling Woodrow Wilson’s famous words, explaining his own problems with limited Constitutional government:
The makers of our Federal Constitution read Montesquieu with true scientific enthusiasm. They were scientists in their way,—the best way of their age,—those fathers of the nation. Jefferson wrote of “the laws of Nature,”—and then by way of afterthought,—”and of Nature’s God.” And they constructed a government as they would have constructed an orrery,—to display the laws of nature. Politics in their thought was a variety of mechanics. The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of “checks and balances.”
The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other, as checks, and live. On the contrary, its life is dependent upon their quick co-operation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is a body of men, with highly differentiated functions, no doubt, in our modern day, of specialization, with a common task and purpose. Their co-operation is indispensable, their warfare fatal. There can be no successful government without the intimate, instinctive co-ordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop.
All that progressives ask or desire is permission — in an era when “development,” “evolution,” is the scientific word — to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.
– Gary Marx is executive director of the Judicial Crisis Network.