Judges, Guns and Money: Part III

by Josie Wales

How was I to know [he] was with the Russians, too?

Justice Stevens’ opinion leaves him on the wrong side of history regarding the importance of the 2nd Amendment.

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Part III deals with Justice Stevens’ dissenting opinion in McDonald v. Chicago, Justice Scalia’s responsive concurrence, and a general summary of the issues.  Part I dealt with the plurality decision written by Justice Alito, the dissenting opinion of Justice Breyer, and is relevant to a discussion on the doctrine of incorporation.  Part II dealt with Justice Thomas’ brilliant concurrence, rejecting the doctrine of incorporation for the “privileges and immunities” clause of the 14th Amendment.

You may recall that we addressed the legacy of Justice Stevens’ in a previous article:

Justice Stevens, a member of the Court since 1975, displayed distrust for freedom and voted on the wrong side of many significant constitutional issues.  He willingly eroded individual rights in favor of intrusive government policy.  Stevens’ uneasiness with freedom and individual rights led him to substitute textually sound, constitutional arguments with “intangibles” and fearful hypotheticals involving individuals abusing their rights at the expense of others.

Sure enough, he is up to the same shenanigans in what will be one of his last opinions.  To our benefit, Justice Scalia makes sure that Stevens leaves SCOTUS with a swift kick in the pants.

I would like to say I read through Stevens’ opinion as thoroughly as those written by Thomas, Alito, or even Breyer, but I would be lying.  Alito had a set of facts, applied the facts to the present understanding of the doctrine of incorporation, and produced a result.  Thomas went down the road less traveled and developed a whole new paradigm in constitutional jurisprudence.  Breyer’s dissent was amusing in its poorly veiled attempts to promote progressive policies.  Stevens is tedious, boring and, quite frankly, dead wrong in his approach to the Constitution.  Thank goodness for Scalia.  One can get the gist of Stevens’ ends justify the means in bizarro world analysis through Scalia’s amusing narrative.

Scalia starts with an examination of Stevens’ new approach to incorporation jurisprudence:

The subjective nature of Justice Stevens ’ standard is also apparent from his claim that it is the courts’ prerogative—indeed their duty —to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine.

If anyone doubted that progressives have sought to infiltrate all branches of the government, here is sure-fire truth.  Apparently, judges have a duty to re-write the Constitution.  The most fundamentally flawed aspect of this approach to a “living” Constitution (what progressives call “constitutional fidelity“) is that judicial precedent plays a more important role than the actual Constitution, with the exception that conservative judicial precedent is excluded from the conversation.  This is nothing more than an attempt to hijack the court for the purposes of progressive policy.

To begin his “objective” approach to incorporation, Stevens renames the “due process clause” the “liberty clause,” and then proceeds to deny the liberty for self-defense with a straight face.  He eschews the current standard for incorporation because he deems it subjective.  In turn, he argues the lack of a standard will somehow encourage objectivity.  As Scalia points out:

The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason. Indeterminacy means opportunity for courts to impose whatever rule they like; it is the problem, not the solution. The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd. If there are no right answers, there are no wrong answers either.

In reality, Stevens’ seeks to justify upholding bad precedent through phony standards.  As I pointed out in Part II, Stevens would uphold Cruikshank, a decision in which blacks were denied federal protection of their 2nd Amendment privilege at the cost of harassment from white supremacist groups run by members of the Democratic Party (though they only joined because they needed to get elected).  This is the judicial precedent that Stevens deems objectively stronger than the Constitution.

Stevens continues with a discussion of “fundamental” rights.  He reiterates progressive boiler-plate rhetoric in suggesting that guns only serve to deny liberty and that they are not “critical to leading a life of autonomy, dignity, or political equality.”  This is followed by an examination of how other countries view the “right of the people to keep and bear arms,” to which Scalia writes (with extreme sarcasm):

No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do.

The fallacy in this approach lies with the fact that there are many rights which Stevens’ deems “fundamental,” but which other “civilized” nations do not recognize.  Scalia goes on to write:

A judge applying Justice Stevens’ approach must either throw all of those rights overboard or, as cases Justice Stevens approves have done in considering unenumerated rights, simply ignore foreign law when it undermines the desired conclusion.

Examining the rights of what one justice subjectively considers “civilized” is nothing more than an “ends justifies the means” approach.  This exemplifies the flaw in Stevens’ approach to the Constitution, and the danger in allowing progressive judges to infiltrate our legal system.  One could waste their time by reading the entirety of Stevens’ opinion, but it is nothing more than an attempt to establish the pre-eminence of judges within our Republic.  As Scalia concludes:

Justice Stevens abhors a system in which “majorities or powerful interest groups always get their way,” but replaces it with a system in which unelected and life-tenured judges always get their way. That such usurpation is effected unabashedly—with “the judge’s cards … laid on the table,” —makes it even worse. In a vibrant democracy, usurpation should have to be accomplished in the dark. It is Justice Stevens’ approach, not the Court’s, that puts democracy in peril.

While the length of Stevens opinion would seem to require more analysis, Scalia’s brief opinion hits all of the relevant points.  One need only read Scalia’s concise concurring opinion to understand the long-winded Stevens.  And while the two opinions deal more with the deep-rooted philosophies of progressive jurisprudence, they are relevant to the analysis (and protection) of our unalienable rights.

In my own conclusion, Justice Clarence Thomas provides the most pertinent analysis of the 2nd Amendment in its relation to the 14th Amendment.  His opinion, uncontradicted by any member of SCOTUS, will serve as important precedent in future decisions pertaining to rights protected from government interference under the Constitution.  Justice Samuel Alito reaches the proper result in his plurality opinion, though his use of the doctrine of incorporation amounts to nothing more than perpetuating a dangerous “legal fiction”, in the words of Justice Thomas.  Justice Antonin Scalia writes an entertaining critique of the erroneous (yet dangerous) opinion from an elitist, progressive (and soon former) member of the court.

As Thomas Jefferson stated, “All tyranny needs to gain a foothold is for people of good conscience to remain silent.”  We, the vocal majority, have raised our collective voices against tyranny, despite progressive attempts to silence us, and now SCOTUS has recognized our “natural” right to defend that voice with the barrel of a gun.


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Posted Jul 11th 2010 at 5:51 am in 2nd amendment, Culture, History, Justice/Legal, Supreme Court | 195 Comments