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Jackson Williams

Jackson Williams

Posted: June 28, 2008 12:14 PM

On Guns, Scalia is Right For Once, and Obama Agrees

What's Your Reaction:

Keith Olbermann declared Supreme Court Justice Antonin "Nino" Scalia the "Worst Person in the World" on the Thursday, June 26 edition of MSNBC's "Countdown." What got the host up in arms was the recent Supreme Court decision that the Second Amendment confers an individual right to gun ownership.

I'm tempted to give Olbermann a pass on this because I'm a fan and he made a midlife career switch at age 40, from sportscasting to news/commentary. Also, me no Nino aficionado.

Still, Keith's reasoning is so specious in this case that it merits what he calls a "Special Comment."

Here he is seriously (and breathlessly, as is his stylistic wont) explaining what the 27 words of the Second Amendment really mean:

"Despite years of fog created by the NRA and right-wing organizations, {this} isn't very complicated: for the purposes of forming a state militia, you're entitled to keep and bear arms. Obviously, those would have to be {the kind of arms} in 1791, when the Bill of Rights was passed; the musket, the wheel-lock, the flint lock, the 13th century Chinese hand canon. Stuff like that.....Scalia simply decided that the militia part of the Second Amendment is some sort of quaint anachronism that he could happily ignore."

That's mildly amusing, but ancient implements of destruction have nothing to do with the amendment's validation, or lack thereof. After all, the First Amendment applies to new forms of communication the Founders never had, from radio to TV to the internet. Keith's the one trying to turn the document into a "quaint anachronism."

Or consider the Fourth Amendment. I think warrants for search and seizure should be required for technologies like brain scans that read thoughts, or heat-seeking lasers that can be aimed into homes. (In fact, I say brain scans are also a violation of our Fifth Amendment right against self-incrimination.)

Don't laugh at such ideas. Telephone wiretaps, after their invention in the late 1800's, were employed for decades before passing constitutional muster. The permissable use of modern advances is a continuing debate. Like so many issues, it's never fully adjudicated.

My broader point is that the way things were "when the Bill of Rights was passed," Olbermann's official yardstick, is hardly persuasive to those of us who believe in the concept of a living Constitution.

As for "militia," everyone accepts that when the language is understood, it carries weight. Linguistic history suggests that the complete context of the word in 1789 corresponds to all of the people (as evidence, see the Virginia Declaration of Rights, Article 13, 1776) rather than a select group in national guard units. The Bill of Rights is about each of us, not some of us.

And by the way, Scalia didn't "happily ignore" the militia question in his 64 page majority opinion, as Keith says. The Justice went on and on, as did his colleague John Paul Stevens in dissent.

It appears Olbermann's analytical skills, constitutionally speaking, run toward the Cliffs Notes variety.

I, on the other hand, side with Sanford Levinson of the University of Texas and Laurence Tribe of Harvard, two among many who concur with the Court. Their extensive research leads the acclaimed liberal scholars to a determination that, as the NY Times put it, "the meaning of the amendment's text, history and place in the structure of the Constitution" compels an individual interpretation.

Neither law professor worships at the alter of a stagnant right-wing pool. Barack Obama surely doesn't, and he shares their sentiment.

It should be acknowledged that while the Supreme Court record on the amendment is extremely sparse, a collectivist interpretation (anti-individualist) has been the conventional view within the federal courts and academia for much of the past century. Before that, generations saw it differently, and for an obvious reason.

Individuals have bought and owned guns -- legally -- since the Thirteen Colonies. Still do. This explains why the Court's latest ruling has elicited a snore across the land, lawyers excepted.

The practical effect today in any household is the status quo. Your gun is kosher if it's kosher, same as yesterday, and everyone knows it. That score hasn't changed.

Far more relevant than the right to bear arms, plainly, is defining the parameters of that right: rational gun control laws.

I'm a supporter (along with most Americans), starting with my opposition to concealed weapons. There are, without doubt, too many guns on our streets. We were a tiny nation of fewer than 4 million citizens 220 years ago; today we're 300 million strong and growing, largely urban and suburban, packed together. This reality isn't going away.

I believe in background checks, banning assault weapons and cop-killer bullets, closing the gun show loophole.

These are common sense measures meant to distrupt criminal activity and save lives, not impact the rights of the law-abiding, whether in Miami or Cheyenne. That's a good thing.

The U.S. finally outlawed the sale of firearms through the mail in 1968, five years after Lee Harvey Oswald had his rifle shipped mail order from Chicago to assassinate John F. Kennedy in 1963. Stopping such a flood of gun sales, into the unfettered hands of the potentially criminal or deranged, was a simple and smart idea that took years and drew fierce opposition.

Little has been done since, and additional safeguards are overdue.

Nothing is absolute. Not the right of free speech -- the first amendment. You can't libel or slander, for example. It stands to reason that the second amendment isn't absolute, either. In fact, the entire Bill of Rights is compatible with regulations designed to ensure civility. Society requires structure to function smoothly and safely for all. The conservative Scalia seems to agree:

"It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.....The court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." {Emphasis added.}

If the Second Amendment has become so problematic that wise constraints don't work, then we need to supercede it -- in the manner the Founders prescribed. A decent case can be made. Of course, a replacement amendment will be damn difficult to push through, and those opposed to guns can't just flippantly cut the existing condition out of the Constitution by declarative fiat (despite how Bush-Cheney conduct business).

That's why fighting legislatively remains the way to go when it comes to curbing gun violence. Any approach, however, requires careful treading.

Former Massachusetts governor Michael Dukakis is cited for the following comment during the 1988 presidential campaign: "You know, I do not believe in individuals owning firearms. Only the police and military."

I can't say if the quote is accurate or apocryphal, but think of it: only the police and military? That kind of logic cost him an election. It's also not reassuring in a country that now sees other constitutional liberties getting nibbled away, from warrants to habeas corpus.

And I don't even own a firearm.