25 February 2013

Gun rights and phony constitutionalism

When the Albany Times Union highlighted an excerpt from Lloyd Constantine's op-ed piece for last Sunday's edition, it made Constantine sound more pro-gun than he actually is. The quote read, "There is a respectable argument that Americans have the right to protect themselves with firearms without reference to a phony interpretation of the Constitution." Most of Constantine's article addressed the "phony" interpretation, which happens to be that of Justice Scalia and the majority in Heller v. District of Columbia, the case that identified an individual right to gun ownership in the Second Amendment . In Constantine's opinion, Heller belies Scalia's pretensions of strict constructionism. He relies on Robert Bork, whom he deems a real strict constructionist, for the opinion that the Second Amendment was not intended by its framers to confer a "private" right to keep and bear arms. Constantine himself follows the popular reading of the amendment, according to which the militia cause sets the conditions under which gun rights may not be infringed. That is, he interprets the amendment to protect people's right to form militias, not to keep their own arsenals unconditionally. Scalia's Heller opinion described the militia clause as a "preamble" that did not set conditions for the right to keep and bear arms. Constantine isn't the first lawyer to declare himself unimpressed by Scalia's reading. There's more to Scalia's opinion than that dismissive exegesis, of course. He made a practical argument about militia formation, noting that individual members would most likely be expected to provide their own weapons and to already own them. More significantly, and more dubiously, he propounded a natural-law interpretation of the Second Amendment that allows him to read an assumed original intent into the amendment's language. Scalia says that the amendment "codified venerable, widely understood liberties," but that's a matter of inference, whereas a positive-law reading permits no such inference, taking a more literal if not "fundamentalist" approach to the language of the amendment. We may think of so-called originalists as constitutional fundamentalists, but the distinction drawn here should make us think again. Jurists like Scalia are more like constitutional gnostics, since they claim special knowledge (via ideology) of what the text really means. Thus, in Constantine's account, Scalia and the Heller majority can topple generations of precedent for essentially ideological reasons. Constantine sees Heller as a moral equivalent of Plessy v. Ferguson and looks forward to the gun-law equivalent of Brown v. Board of Education to overturn it -- though Scalia's fans and the NRA may see Heller itself as the Brown of gun law.

Constantine may be working toward the Roe v. Wade of gun law. What did he mean, after all, when he mentioned "a respectable argument" for an individual right to bear arms? "This asserted right is similar to many personal freedoms that are not specifically mentioned in the Constitution," he writes, "Our right of privacy comes to mind." Constantine won't get very far with Republicans with that argument, since they've always been skeptical about the right of privacy, at least with regard to reproductive rights, since the Warren Court more or less discovered it in the 1960s. At first glance there seems little to choose from between Constantine and Scalia, since the privacy right itself, while more acceptable in practice to liberals, is hardly less a matter of inference than Scalia's natural-law interpretation of the Second Amendment. But since liberals have affirmed a right to privacy since the Sixties, it would be interesting to see them explain how that right covers forms of birth control but not self-defense. Meanwhile, Constantine's privacy-rights approach may at least be more amenable to regulation than the (already not absolutist) stance vindicated by Heller. "There has always been a rough consensus in America that certain firearms are appropriate for certain purposes in specific settings," he writes, "Laws enacted by elected legislatures at every level of government have reflected that consensus while adapting to new technologies like rapid fire rifles with 30-bullet clips — not your great-great-grandmothers' muskets, are they?" If Constantine can formulate an approach that balances an understandable anxiety over the police's inability to be everywhere at once with an understandable anxiety over some people's assumed right to defend themselves against the entire human race -- more power to him.

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