The Court’s Hot Kiss of Death

U.S. Constitution

Looking back on the new year thus far, I thought House members reading the Constitution was a nice touch, albeit political theater.  The document itself doesn’t bring tears to the eyes (not even John Boehner’s) like the Declaration of Independence.  After all, few documents could match that majestic and dignified expression of principle, signed by 56 men who simultaneously signed their death warrants if independence failed.  The Constitution, in contrast, is more like the rules to Monopoly, specifying how the government of this republic will behave and move around the board of federalism.

But the reading reminded me how much words matter and how our justice system hangs on written words in a constitution, a statute, or executive agency rule.  The dicey part of that reality is that judges ultimately decide on the meaning of a word or words in a legal writing even when that meaning may seem obvious to the rest of us.  The Supreme Court decides when certain words or provisions in statutes enacted by Congress run afoul of a Constitutional provision as it has interpreted it to mean, invalidating those that do.  Invalidating laws of the legislative branch is an awesome power, especially considering that the Constitution doesn’t specifically authorize the U.S. Supreme Court to do so (read Marbury v. Madison).

Which reminds me of the Second Amendment and the first big gun tragedy of 2011:  the shooting of Congresswoman Gabrielle Giffords.  A few days after she participated in the Constitution reading, a deranged gunman shot her at close range and killed 6 others, including a federal judge.  Is this what Sharron Angle meant by Second Amendment “remedies?”

Semi-automatic handgun

Many non-deranged Americans  – those other than Ms. Angle, the gunman, and most NRA members – found themselves asking, “What’s wrong with a little gun and ammunition control?  Why should a disturbed person be able to walk into Walmart and buy 30-round gun clips, while we push our carts around buying diapers, dinnerware, and toys from China?”

But then, we remember that – NRA problem aside (more below) – the Second Amendment authorizes the possession of a killing machine by any citizen with a credit card (at least in some states).   Specifically, it states:   A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

But wait, you ask, how do those words authorize private citizens to own dangerous handguns?  Because  – back to what I said earlier – the Supreme Court has decided it does.  And, another funny thing about words in the Constitution: meanings change over time.

In 1939, for instance, the Supreme Court considered the 1934 National Firearms Act, the first major federal firearms law, in the case of U.S. v. Miller.  In a nutshell, the Court looked at the text of the Second Amendment and decided there was no relationship between a shotgun with a barrel of less than eighteen inches and the preservation or efficiency of a well regulated militia.  Accordingly, the Second Amendment did not guarantee the right to keep and bear such an instrument.

Justice Antonin Scalia

But in 2008, Justice Scalia gets his hands on the Second Amendment and explains away these pesky words about a militia in District of Columbia v. Heller, thereby invalidating the D.C. ban on all handguns.   To paraphrase, he states that the reference to a militia is just a preamble, and then explains away preambles as meaningless unless they happen to provide guidance in understanding an ambiguous main clause.  Since, the language about people having the right to keep and bear arms is clear, there’s no need to look at the preamble, he says.  Good-bye, militia language!

Justice John Paul Stevens

Hogwash!  says Justice Stevens (again I paraphrase).  Writing the minority’s dissent, he explains that ignoring the clause as a whole is a complete departure from how the Court ordinarily reads such texts.  Courts are required to treat every word of a constitutional provision or statute as having meaning, he says.  Even though Americans have not needed militias in the last 200 years, that doesn’t justify ignoring the Framer’s intentions expressed in the full text of the Amendment.  The so-called preamble reflects the importance that the founding generation placed on maintaining state militias, underscoring its fear of the dangers posed by standing armies (rather than citizen militias).  Accordingly, says Justice Stevens, the introductory words about the militias modify the right of people in keeping and bearing arms, i.e., specify the purpose for keeping these arms.

In essence, the Scalia coterie invented an entire right that was not contained in the words of the document by cherry-picking words from the text and throwing aside the rest.

Whether or not we agree on the Constitution’s silence about the possession of arms for non-militia use, there will always be folks who believe they need weapons to protect themselves from the random burglary or street mugging.  While notable statistics are few involving the use of personal guns to stop burglars or street thugs, the newspaper pages describe plenty of accidental shootings – particularly involving children – and intentional domestic shootings.

But wouldn’t it be nice to try to keep guns from criminals?  As NPR pointed out last week, “Nationwide, at least 14 police officers have been killed in the line of duty this month — and many more have survived gunshots.”  Sounds like we need a war on guns to go along with our war on drugs.  Or how about de-criminalizing drugs and criminalizing guns?

Of course, the NRA would not stand for that.  No law could even make its way out of a legislature or Congress to feel the Supreme Court’s hot kiss of death.

And, frankly, that’s the saddest commentary of all.   This country was founded by brave men willing to die for great principles.  We chose to be governed by an instrument as close to perfection as you can find in the imperfect world of governance.  And yet, our nation is now one in which our non-elected judiciary choose to ignore that instrument’s gun language and the elected officials are scared to death to regulate gun ownership in this country, even while they are gunned down by deranged individuals with 30-round gun clips.

We now seem to be governed by a single,well-funded organization with a gun barrel pointed at the heads of our elected officials.  I’m at a loss for words. . . it’s time for tears.

About nowandthenadays

Observer of life who writes about Austin, women's issues, history, and politics. I worked in the Texas Legislature for 9 years, moved to the State Comptroller's Office where I worked for 9 years, then went to work as an Assistant Attorney General after graduating from UT Law, for more than 20 years. Since retirement in May, 2013, I've identified myself as a writer, a caretaker, widow, grandmother, pandemic survivor, and finder of true love.
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5 Responses to The Court’s Hot Kiss of Death

  1. Gary Keith says:

    Thanks, Jeffee. I am just getting ready to introduce constitutional interpretation to my students. This will be a good and timely example for them of the importance of different approaches!


  2. Gilbert Pena says:

    I could not agree with you more. This country is full of gun Nuts.


  3. Danielle Charney says:

    well said – trying to re-post it



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