The Corner

Kmiec vs. Scalia

Douglas Kmiec thinks that the gun-rights decision was an act of judicial activism from the Right. Fine; that’s what Matt Franck thinks too, and I respect Franck’s opinion. But it would be nice if the good professor would actually offer an argument for his position. Here is the entirety of the constitutional analysis he offers in his article:

I am a lawyer — a constitutional lawyer — and the words “a well regulated militia, etc.” have an obvious meaning. The history reveals an individual right to possess a gun for the purpose of joining with the other members of one’s state in a militia to protect against external threat and the internal risk of tyranny from one’s own government.

Case closed, I guess.

Kmiec goes on to note that Scalia’s opinion “also disregards the long-standing teaching of the American Catholic bishops that ‘handguns be effectively controlled and eventually eliminated from our society.’” Referring to the policy positions of the bishops as “teachings” risks being misleading, since they clearly do not have the status of, say, a Magisterial teaching. American Catholics are not bound in conscience to agree with the bishops. So what exactly does it mean to say that Scalia “disregard[ed]” the bishops rather than merely disagreed with them? Moreover, the bishops’ statement as presented has nothing to do with constitutional interpretation (and it would be remarkable if it did have something to do with it). A justice who agreed with the bishops might favor a constitutional amendment to ban handguns while recognizing that he is bound by the Constitution we have. The justice is not supposed to be acting as a policymaker, and in judging him as though he were one it is Kmiec who is showing the mindset of an activist.

(Via Cato Unbound

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

Most Popular

Education

Husband of Sen. Dianne Feinstein Admits to Helping Well-Connected Applicants Gain Admission to University of California: ‘No One Ever Told Me It Was Wrong’

The husband of Senator Dianne Feinstein (D., Calif.) admitted on Thursday to sending an inappropriate letter identified in a state audit that appeared to help an applicant to the University of California, Berkeley, get accepted to the school. The California State Auditor issued a scathing report on Tuesday ... Read More
Education

Husband of Sen. Dianne Feinstein Admits to Helping Well-Connected Applicants Gain Admission to University of California: ‘No One Ever Told Me It Was Wrong’

The husband of Senator Dianne Feinstein (D., Calif.) admitted on Thursday to sending an inappropriate letter identified in a state audit that appeared to help an applicant to the University of California, Berkeley, get accepted to the school. The California State Auditor issued a scathing report on Tuesday ... Read More

The Arson Party

About that peaceful transfer of power . . . I do not have access to my friend Mario Loyola’s Donald J. Trump super-secret decoder ring, but I am inclined to accept Loyola’s explanation that what President Trump was trying to say, but couldn’t quite manage to say, was the usual witless Trump trolling -- ... Read More

The Arson Party

About that peaceful transfer of power . . . I do not have access to my friend Mario Loyola’s Donald J. Trump super-secret decoder ring, but I am inclined to accept Loyola’s explanation that what President Trump was trying to say, but couldn’t quite manage to say, was the usual witless Trump trolling -- ... Read More
Law & the Courts

No, the Democrats Won’t Pack the Court

For many progressive opinion-makers, the only way to save the Supreme Court is to destroy it.   They believe the best response to the Republican-held Senate confirming a Trump nominee to fill Ruth Bader Ginsburg's seat on the Supreme Court is to pack the Court if Democrats win in November. Holding out the ... Read More
Law & the Courts

No, the Democrats Won’t Pack the Court

For many progressive opinion-makers, the only way to save the Supreme Court is to destroy it.   They believe the best response to the Republican-held Senate confirming a Trump nominee to fill Ruth Bader Ginsburg's seat on the Supreme Court is to pack the Court if Democrats win in November. Holding out the ... Read More
Politics & Policy

Do You Want 51 or 52 States Next Year?

“The prospects of statehood for Puerto Rico and Washington, D.C., have never been greater, but many significant obstacles loom,” The Hill declares. The Constitution declares, “new States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction ... Read More
Politics & Policy

Do You Want 51 or 52 States Next Year?

“The prospects of statehood for Puerto Rico and Washington, D.C., have never been greater, but many significant obstacles loom,” The Hill declares. The Constitution declares, “new States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction ... Read More