Sneering Scalia: The right to bear whatever arms I say

( – promoted by buhdydharma )

Well, after the Supreme Court’s stellar 5-4 decision today in D.C. v. Heller (PDF file), I am saving all my pennies for the day when Antonin Scalia decrees that I can legally possess a TOW missile – because, as his majority opinion makes clear, he gets to decide what weaponry I get to own.

See, Scalia, in his special way, decided to decree that the District of Columbia’s ban on handguns was unconstitutional because – well, because, heck, a lot of people outside the District of Columbia legally own handguns, and that means they should be legal inside the District of Columbia, too.

And that’s what passes for the best legal thinking the right wing can come up with.

See, very fundamental to the modern interpretation of the Second Amendment’s wording, “the right of the people to keep and bear arms shall not be infringed” is the question, “Um – exactly which arms do the people have a right to keep and bear? I mean, can I keep and bear a Seawolf-class attack submarine?” And Scalia – in his patented “strict-constructionist-except-when-I’m-not” fashion – assembles a Frankenstein’s monster out of odd bits of legal precedent, in order to arrive at a conclusion he already has reached.

It’s comforting to know that your tax dollars are going to pay for the law clerks and clerical staffs and editors and webmasters who make it possible for anyone in the world to go onto the intert00bz and pluck out of the ether legal gold – no, legal diamonds – like this, wherein Scalia cites the Court’s previous most significant Second Amendment decision, 1939’s United States v. Miller (some emphases added):

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller‘s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller‘s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

This delicious bit of circular reasoning means, in other words:

Well, we know people are going to think that we’ve declared open season on weaponry in private hands, but THIS IS NOT SO!!! No, no, no, no, no. Tsk, tsk. No, what this means is, people can only have in their homes what they can legally have in their homes. See? Doesn’t that make perfect sense, and cement the constitutional standard that we say we are establishing?

In his dissent, Justice Breyer nailed it (some emphases added):

Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.”. . . This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” . . . But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. In the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

Shorter Scalia et al.:

I believe handguns should be legal; therefore, I hereby decree that they are.

Okay, a little bit longer Scalia:

I believe handguns should be legal; therefore, I hereby decree that they are; I don’t care what local law says – except when it bans weapons that I agree today should be banned. I might change my mind next week, though, at which time I reserve the right to override the law prohibiting such previously-banned weapons, therefore by definition rendering them – hey, presto!legal.

Which will then allow them to meet the constitutional threshold I just made up – about them being owned by “law-abiding citizens” and all – because, until I declared such weapons legal, all the people who owned them were, by definition, criminals – or, to use another phrase, not “law-abiding citizens.”

Res ipsa loquitir. Ipso facto. Dulce et decorum est. Gaudeamus igitur. Stare decisis. And all that.

Oh – never mind; fuck stare decisis. I never liked that. (Except when I did.)

This logic is – AMAZINGLY!!identical to that used by BushCheney Justice Department and OLC advisors who, to paraphrase Rep. Jerrold Nadler, “redefine ‘torture’ out of existence” by using the following chain of logic:

Premise (a): everything we do to our detainees is legal;

Fact (b): “torture” is illegal;

Conclusion (c): therefore, whatever we do to our detainees must not be torture.

QED. Thank you, Mr. Moebius.

Now all I have to do is convince my local jurisdiction to pass an ordinance allowing ordnance (nice, huh?) up to and including a B61-11 (which I, like the President and Dick Cheney, would only ever use in self-defense, I promise), and I’ll be knocking on Fat Tony‘s door, asking for his imprimatur as a “law-abiding citizen.”

As an aside, to illustrate (as if further illustration were necessary) what a sleazeball Scalia is, at one point in his opinion, the esteemed justice blatantly lies, and then uses that lie to make a snide, derogatory remark about the dissenters. Writing again of 1939’s Miller case, Scalia says Miller contains

Not a word (not a word) about the history of the Second Amendment.

This is the mighty rock upon which the dissent rests its case.  [emphasis in original]

And then, in the footnote cited at the end of that paragraph, he sneers

As for the “hundreds of judges” . . . who have relied on the view of the Second Amendment JUSTICE STEVENS claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms. In any event, it should not be thought that the cases decided by these judges would necessarily have come out differently under a proper interpretation of the right.

– and, in so many words, gives weight (all of a sudden!) to “millions of Americans[‘]” understanding of “the true meaning” of the Second Amendment – wow – and then in the same breath sneers at those judges who, in defiance of that understanding of “millions of Americans,” (whose collective understanding of the Constitution, evidently, Scalia has gleaned through ESP) somehow lack “a proper interpretation of the right.”

As Stevens points out in his dissent, also, Scalia’s sneering dismissal of “an uncontested and virtually unreasoned case” (referring to Miller, in which no plaintiff appeared before the court to argue the case) rings patently hollow. Stevens’ rapier riposte, however, demonstrates that he possesses a trait about which Scalia can only dream; that is to say, subtlety:

Perhaps in recognition of the weakness of its attempt to distinguish Miller, the Court argues in the alternative that Miller should be discounted because of its decisional history. It is true that the appellee in Miller did not file a brief or make an appearance, although the court below had held that the relevant provision of the National Firearms Act violated the Second Amendment (albeit without any reasoned opinion). But, as our decision in Marbury v. Madison. . .  in which only one side appeared and presented arguments, demonstrates, the absence of adversarial presentation alone is not a basis for refusing to accord stare decisis effect to a decision of this Court.

Heh. Marbury v. Madison. Ouch.

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  1. . . . being necessary for mojo . . .  

  2. …I know that I’m already inclined to find problems with this since I think that the decision in Heller doesn’t go far enough.  But, frankly, WHAT?

    Miller is a piece of shit decision which never made a lick of sense.  But this whole “stare decisis” crap is a load of bullshit, and you know it is.  Would you demand stare decisis to preserve Plessy v. Ferguson?  Would you have preferred that the Court held to its anti-New Deal stance in Schechter, or are you glad that the court shifted its stance in 1937?

    The reverence for stare decisis exists only inasmuch as some people want to make sure that the Supreme Court does nothing.  But you don’t, and pretending you do doesn’t fool me.  You (and I, for that matter) are glad that the California Supreme Court required gay marriage, or that Roe exists.  And frankly, D.C. residents have rights under the 2nd Amendment, and it is unconstitutional to deny them to them by mere laws.  And I have no sympathy for your view here – the most childish reading of the 2nd Amendment makes the individual right clear.  And everyone saw it coming.

    The sad thing is that it is gun rights proponents who should be disappointing.  This ruling was as narrow as could have been imagined.

    • brobin on June 27, 2008 at 17:16

    If you can fit it in your house/home, and there are no restrictions in your Home Owners Association covenants, it’s all good.

    BTW, if THERE IS a restriction against keeping a Seawolf-class attack submarine in your house/home in your Home Owners Association covenants, that is patently unconstitutional, too!

    Heil Scalia!

  3. … Scalia endorses keeping unprotected the right to bear M16’s, for which there is some plausible case that a well-regulated militia nowadays would like their members to be able to practice on in their off time and bring in when the militia is called up …

    … but, OTOH, handguns, which traditionally were used by officers in musket days so they could shoot soldiers that refused to charge, and are pretty much bloody useless when it comes to arming a militia …

    … that’s OK.

    How postmodern.

    Maybe we just misheard when Scalia was proposed … maybe he just heard “strict constructionist” because that was what we were expecting to hear, but what was said was strict deconstructionist.

  4. .. I used to be all for gun-control.  Now after 8 years of GWB and our descent into fascism, I’m not so sure.

  5. Can you please tell me, if I can have a weapon in my home, designed for self defense, what is it I’m allowed to defend against?

    An intruder gets a bullet fired from my handgun?

    A terrorist on foot gets a landmine?

    A terrorist in a plane’s cockpit gets a surface to air missile?

    Am I allowed to defend my home against a bus, driven by a person of Middle Eastern descent, with children strapped to their seats behind him, with a bazooka that fits neatly in the window seat?

    I have three very good reasons not to have a gun in the house.

    My wife and two kids.

    • Mu on June 27, 2008 at 18:01

    Yesterday, both here and at orange, it’s like the Pod People invaded:  long-time Kosniacs and D’dhamists I’ve gotten to know over the past few months went effing squirrely:  all Happy Pappy Giddy Excited to be new best friends with the likes of Scalia and Thomas and Bush and McCain, et mal.

    I was in a depressing BizarroWorld, not knowing which of the people I thought I knew were, deep-down, NRA Freaks.

    It was depressing.

    I posted one in Mishima’s morning update this a.m.  I repeat it here.  The Subject Line:

    From a Gun Owner

    Ahem, I’ve been a gun owner since I was about 10.  I’m closin’ in on 45 now.

    Religious freedom is not sacrosanct (one can’t smoke dope, or, say “marry” 12 year old girls as a “sacrament”; Native American Church can do peyote, though); speech is not sacrosanct (“Fire!” in a crowded theater; “commercial speech” has all kinds of strictures); freedom of the press is not sacrosanct (libel is actionable for maliciously false publications); assembly’s not sacrosanct (parade permits); the Fourth Amendment has all sorts of loopholes and permutations) . . .  

    Oh!  But the Second Amendment!  That’s holy!  That’s sacred!  Don’t TOUCH my gun!!!

    The mind frigging boggles.

    Oh, but the Original Intent!  The Original Intent!  Right.  As I’ve mentioned elsewhere, unless one has direct evidence that the Framers had access to a time machine which they used to find out about snub-nose and rifle-barreled, mass-produced, Saturday Night Specials (uh, revolvers – a technology that didn’t exist in 1791, by the way), then, o.k. go ahead and argue “Original Intent”.  Otherwise, and with all due respect, such cretins should STFU re  “Original Intent.”

    Well, at the end of the day, I feel like I’m in much better company – Stevens, Breyer, Ginsberg and Souter than are the  gun proliferation absolutists who now embrace the likes of Scalia, Thomas, Alito, Roberts and, sadly, Kennedy (who friggin’ knows better).  Oh, and a gloating W. Bush.  Nice friends some of y’all have there.  Nice friends.

    I’ll end with this:


    In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

       He said such evidence “is nowhere to be found.”

       Justice Stephen Breyer wrote a separate dissent in which he said, “In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”



    Mu . . .

    • Mu on June 27, 2008 at 18:17

    But be forewarned:  you’ll get a 3:1 ratio of Scaliafan Freakout Harangues vs. Supporting Comments.  It’s bizarre.  People that you thought you “knew”…




  6. I have read Scalia about 4 times now.

    I want him and everyone who signed on to this decision to have a urine screen.  Do not tell me that this is not a smoking crack majority decision.

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