Diary

A Bad Weekend for the Constitution

Two pundits, one on the Left and one on the Right (sorta, kinda, almost), each wrote an attack on the Constitution. If this is what we have to look forward to, the future is pretty dismal from a constitutional perspective.

The leftist, Gail Collins , asks George Bush to resign, and Cheney, too, of course, to allow Nancy Pelosi, and therefore Barak Obama, to assume power before January. Her reason: she wants to usher in Obamanomics as quickly as possible. Since Collins writes for the New York Times, it comes as no surprise that such an idea would make the pages of a once-important news outlet. At least Collins make the Bush resignation optional, which is at least a nod to the constitution.

The pundit on the Right, George Will , is more problematic. Will finds parallels between the recent SCOTUS ruling in District of Columbia v. Heller and Roe v. Wade. According to Will, both rulings represent an overreach of the powers by the Court, and are therefore equally bad.

I think his reasoning can be summed up like this: Heller allowed the Supreme Court to define the Second Amendment for the first time. The ruling, 5-4, said that two groups are mentioned as having the right to possess arms: the states in their militias, and individuals, “the right of the people.” According to Will: “Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right..”

Note the difference between these rulings.

For decades, the states had passed laws regarding abortion, most of them against abortion. For those same decades, it was recognized as the right of the states to pass such laws.

For decades, the people have owned guns. Period. Owned guns. No state had successfully attempted to remove private ownership of guns. Every case prior to Heller had ruled against the abrogation of gun ownership. San Francisco tried it more than once, and each time, their bans had been overruled.

Somehow this precedent was not enough for George Will. No, the ruling in Heller was a “newfound individual right.”

The method of determining Roe is not so direct as the logic that resulted in Heller. In Heller, there had been no precedent of a ban of on gun ownership. The logic of Roe v. Wade is far more circuitous. Due process, a concept that applies to prosecution of crimes, was found to provide an umbrella for abortion. According to SCOTUS, due process “implies a right of privacy” that was fundamental to abortion (and contraception and sodomy), that prevents these issues from being considered criminal, a concept never before encountered in judicial thought. (How many degrees of separation does that decision represent?)

The logic in the Heller ruling is direct. No court had recognized the right of the state to restrict gun ownership. In fact, the courts had ruled against such restrictions multiple times. Scalia defines the issue even more absolutely. In every instance where the Constitution refers to “the people” or “the right of the people”, it is universally accepted that it refers to an individual right. Only the use of the phrase in the Second Amendment is open to questioning by liberals and the anti-gun ownership adherents. Whether they like the ruling or not, the logic is a straight line, with no degree of separation.

Stare decisis is a curious beast for SCOTUS, liberals, and apparently George Will. There was no possibility of stare decisis being a factor in the original Roe v. Wade decision. There was no example of widespread legal abortion in this country, and there was no previous ruling that once legalized abortion. Furthermore, the basis of the ruling is flawed, based on a dubious interpretation of due process newly found by the courts. History is solidly on the side of individual gun ownership. Two centuries of gun ownership AND court rulings are a solid precedent for the Heller ruling.

George Will continues to be a thorn in the side of conservatives. Articles such as this one provide fodder for the ongoing argument liberal control of individual rights. Is there some process for a recall of conservative pundits? Excommunication? Exile? Will no one rid us of this troublesome typist?