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439. Armed incoherence watch

The Chicago gun control decision was a great liberal triumph, the culmination of nearly 50 years of such triumphs.  It shows the wonderful influence William Brennan continues to exert beyond the grave.  (See post 365.)  

Justice Brennan spent much of the 1960s and 1970s voting to make this or that portion of the Bill of Rights "applicable to the states."  Sadly, he died with his great work unfinished.  Now soulmate Samuel Alito has picked up the torch.  Brings a tear to the ol' liberal eye, doesn't it?

Just look at the glee with which Alito rubs liberals' noses in it:

Third, JUSTICE BREYER (he means "Justce Breyer") is correct that incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporatingvirtually every other provision of the Bill of Rights. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U. S., at __ (slip op., at 64). This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution.

Sad to say, the hack is right.

The point of the decision isn't that citizens have an unrestricted right to bear arms, but only that limitations on the right to bear arms must be imposed or approved by judges rather than through democratic means. 

Justice Scalia had said just that very thing in the earlier decision striking down gun control legislation in that notably firearm-starved zone, the District of Columbia.  In typical Scalian fashion, he said it twice, first in positive terms, then by bombastically refuting himself:

First the positive statement of the point: "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

Then the belligerent reversal: "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon."

Can't you just hear Scalia explaining why that's not a self-contradiction?  Judges don't have the power to decide on a case by case basis whether the right is really worth insisting on, but only to decide whether the weapons at issue are of the sort "typically" possessed by, etc.  Which is an entirely different thing in every way ... except in the one way that matters.  Under either formulation, judges have the final say.  On a case-by-case basis. 

I love Scalia's string of weasel words.  How does a judge access the data necessary to determine what weapons citizens "typically" keep?  They do so the old-fashioned judicial way: they make it up.

The really cute thing is the "law-abiding" and "lawful," since almost by definition the Supreme Court's second amendment rulings will benefit only those citizens who don't abide by gun-control laws.  So a "law-abiding citizen" is, it would seem, one who decides which laws to obey.  And suddenly we're playing footsie with the sovereign individuals.

Professors David S. Cohen and Maxwell Stearns, writing in The National Law Journal, point out that the city of Chicago actually won both of its constitutional arguments and still lost the case.  The lesson they draw? 

What the Court needs is someone who can forge consensus, not only by uniting with her natural allies but also by occasionally persuading those on the other side. An effective coalition builder might have avoided the McDonald outcome by convincing at least one conservative member of the Court of the importance of an agreed-upon rationale as a precondition to upsetting long-standing urban policies throughout the United States concerning gun control.

The assumption from which the professors proceed is that the justices make up constitutional rationales as they go along, and have absolute freedom to adopt or discard constitutional principles as the most persuasive of their colleagues urges them.  The source of constitutional authority is the "coalition."

In other words, the justices aren't enforcing a written Constitution.  They're writing it.

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This post is a pointed criticism of the Supreme Court's modus operandi. Many of the court's critics describe the way the Court comes to an agreement is wrong and should be changed. Many of the times its one swing judge looking to be convinced which ultimately puts all the power of the Court in one person's hand.
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