THE LIVING CONSTITUTION

This week I was amazed to read in the NEW YORK TIMES that some conservative legal scholars think that the recent Second Amendment case, DC V HELLER, is a case in which the conservative Supreme Court justices made a decision based on judicial activism. For those initiated into the arcane intricacies of Constitutional jurisprudence, this is tantamount to accusing the majority in HELLER of un-American activities- at least from the standpoint of the strict-constructionists (like Justices Scalia, Alito, Thomas and Chief Justice Roberts. The epitome of judicial activism is Roe v Wade in which the Court held that a woman’s right to privacy, although not identified as a constitutionall protected right in the text of the U.S. Constitution, nevertheless exists by virtue of a “penumbra” that emanates from the text.

Thus, in modern times the theory has arisen that the “living Constitution” changes and mutates in organic, almost Darwinian progression along with changes in American society and evolving international norms. Strict-constructionists (like the conservatives in the HELLER majority) maintain that we are going down the road to dictatorship from the unelected judicial and academic elite when we depart from the original meaning of the text as understood by the men that drafted the document.

The NEW YORK TIMES article quotes Judge Richard A. Posner’s August, 2008 article in THE NEW REPUBLIC in which he wrote that the HELLER court’s failure to allow the political process to work out varying approaches to gun control that were suited to local conditions “was the mistake that the Supreme Court made when it nationalized abortion rights in Roe v. Wade.” Such criticism cannot be dismissed- Posner is preeminent among modern legal thinkers!

Then we have another well-recognized judge, J. Harvie Wilkinson III, stating, “The ROE and HELLER courts are guilty of the same sin.” So was the HELLER majority running roughshod over the states and making new law by judicial fiat?

The article in the NEW YORK TIMES fails to note one very important aspect of the HELLER, decision; i.e., the decision pointedly does not guarantee a right to keep and bear arms in a situation where state government action poses the threat to gun owners. The Court took the HELLER appeal in order to decide whether the right to keep and bear arms is an individual right while exercising judicial restraint by deciding a case that only impacts Washington, DC, at this time.

The U.S. Constitution originally restricted the federal government’s powers; in relatively modern times, the Court has applied its decisions to the several states. The Fourteenth Amendment, enacted after the Civil War to protect newly freed black citizens, is the rationale by which some Constitutional protections are incorporated so as to protect citizens from our own state legislatures and other state officials- including the above mentioned right of privacy that a woman can assert against her husband, the life of a child (right up to and beyond birth) and any claims that families and society can make regarding parental rights and related concerns.

At the time of the debate over passage of the Fourteenth Amendment, Southern Democrats argued that if the new citizens’ rights were protected then blacks would own guns. The Northern Republicans answered them by telling they were damned right! It is worth noting also that none of the legal scholars quoted by the NEW YORK TIMES claimed that the Second Amendment is a “corporate” right that does not apply to individuals.

The NEW YORK TIMES article explains that some prominent liberal law professors, including Laurence H. Tribe of Harvard, Akhil Reed Amar of Yale and Sanford Levinson of the University of Texas, have concluded, sometimes reluctantly, that the amendment in fact protects an individual right. The Supreme Court appointments made by the new president may decide if and how and when the Second Amendment protects many of the rights that you and I cherish. So now that you have voted, did you vote with a careful view as to how the Constitution should be read?