Idealogy or Prejudice?
The Supreme Court just issued a decision that forbids the state of New York from requiring permits to carry a loaded gun in public. The legal basis for the opinion was, of course, the agonized interpretation of the Second Amendment to the US Consititution.
Previously the NY law required showing that you had a “special need” to carry a gun. Asserting that carrying a lethal weapon is a right, and that therefore no special need should be asserted, the court decision allows anyone to carry a gun for any reason. Even the flimsy notion of self defense is discarded in this decision. Even though it is doubtful that carrying a dangerous weapon does effective defend people, and likely that quick access to loaded weapons makes their injudicious use far more likely, the whole notion of having a rational has been discarded in this decision.
The attorney arguing to overturn the NY law opened by stating that it restrained the plaintiffs “with ordinary self defense needs,” from carrying weapons. Did this decision attempt to articulate what “ordinary self defense needs” might be? Are they something all of us, all ordinary citizens have? I am approaching my 75th year and have yet to need to defend myself by shooting something, presumably another person. Apparently I am not ordinary however. Apparently, the need to be armed and ready to shoot another citizen is commonplace, and I have been unusually fortunate.
Over the past hundred years, we may observe that the relative power and influence of the branches of government have slowly shifted away from the legislature and a corresponding increase in the power and influence of the executive and judicial branches. The Federalist Society claim, insincerely in my view, to adhere to three basic principles. One of these is “judicial restraint,” meaning the courts should rigorously restrain themselves from “making law,” (the province of the legislature) and restrict legal opinions to interpretation and application of the text of the law. Yet in this decision, this court does precisely the opposite. NY state has passed a law clearly intended to protect its citizens from the dangers of promiscuous gun use, and this court vitiated its effort. The so-called principle apparently only applies when it suits the user.
Of course, this court claimed its decision arose from a careful reading of the second amendment. Once more an almost laughable “principle” of the Federalist Society is invoked: this is the principle of “originalism,” a neologism meant to convey depth by inventing something out of whole cloth as though if we invent a word for something, we have thereby proven it exists. “Originalism” in Federalist Society dogma purports to mean that in referencing the meaning of the Constitution we must reference the meanings dwelling in the minds of the writers. Even a passing familiarity with the process that gave birth to this venerable document permits us to appreciate that it arose in a context of acrimony, confusion, and plenty of compromise. Its sturdiness over more than two centuries is close to miraculous. But to treat it with a sort of fundamentalist veneration, and a worshipful hope that those men are the ultimate possessors of all wisdom is absurd. They themselves would have rejected any such idea instantly. They assumed, or hoped, they had produced a document that would evolve through necessity by the amendment process, and would very likely have been disappointed to see how difficult that has been. “Originalism” is simply a basket to hold ideological prejudices. It is not a valuable guiding principle for wise judicial decision making.
A further weakness in this court’s reasoning is as follows. The court has decided in a prior decision (Heller 2008) that the “arms” cited as a right in the second amendment does not refer only to the arms known to the writers in 1789, but rather refers to all firearms. But, of course those writers could not have imagined the arms abroad in the world today. Surely genuine adherence to “originalism” would insist that the framers were meaning “arms” as they existed in the world they lived in. Once more the “principle” simply exists in service of the prejudices of the user.
Apparently, the state can still restrict its citizens from carrying loaded weapons in particular places, like schools or other public facilities.