I just finished reading all 157 pages of the DC v. Heller (PDF 1.2MB), including the Scalia opinion and the dissents by Stevens and Breyer, and I have to tell everyone: the feud between an MSNBC anchor and a blogger--as much as I respect both of them--does not add up to a hill of beans compared to the startling degree to which this 2nd Amendment case has undermined the basic concept on which our democracy is founded:
I don't normally write smack-down diaries telling everyone to wake the heck up and stop throwing pies, but this is one of those moments where it is necessary.
DC v. Heller is not just a bad ruling. It puts the court's imprimatur on a concept of citizenship that is fundamentally counter to the principles on which this country was founded. It, is, a, nightmare.
"Weapons In Case Of Confrontation"
For those who do not realize it, all rights guaranteed in the U.S. Constitution flow from the 1st Amendment which is about 'freedom of expression.' As the Constitution is the basis of our system of government, the Bill of Rights is the core description of what it means to be a citizen.
Right one: freedom of expression--speech, assembly, and so forth. Without that right guaranteed by the 1st Amendment, there is no need to continue the conversation because citizens are not free unless they have those rights. No free citizens, no free society, no Democracy. Hence, when the Framers created the Bill of Rights, they put the most important right on which the entire system depended first--not second, not third, not tenth, but first.
I make this point, which may seem obvious to most, because if you listen to those who supposedly argue in favor of an 'individual rights' interpretation of the 2nd Amendment, they argue a very different vision. What they argue is that the most fundamental right of our entire Constitution is not the 1st Amendment, but the 2nd Amendment. Without the 2nd Amendment's guarantee of individuals the use guns to defend themselves in case of confrontation, there is no free society and nothing else in the Constitution--no other rights--have any meaning.
Let me repeat that.
The Bill of Rights puts freedom of speech first and the right of the people to bear arms second. The NRA and its advocates reverse that mode, insisting that the right to bear arms is the first fundamental right in the American system, and everything else is second.
In that argument are the seeds of a fundamental change in what it means to be an American citizen--what it means to be a free person. On the one hand, we have a vision of the world where one is free by virtue of the right to express oneself. On the other hand, we have a vision of the world where one is free by virtue of the right to shoot a potential attacker.
The Framers of the Constitution set up a system that defined freedom in one way, not the other. The DC v. Heller majority opinion reversed that.
According to the court, we now live in a world where the freedom to use a gun in moments of confrontation--albeit with some limits--is a fundamental right above all else.
No Evidence...of Common Law Right of Self Defense
According to Justice Stevens in the first dissenting opinion:
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
I start with this quote from the dissent because without it one is lost in this discussion even before it gets started.
The majority opinion in DC v. Heller (Scalia) argued that the Framers of the constitution were fundamentally concerned with making sure that the right of the people to protect themselves from the government was not taken away. Scalia's claim is identical to the oft-repeated myth by right-wing pundits and NRA advocates that the Framers of the Constitution were wholly concerned about a tyrannical federal government rising up to destroy the citizens of the new Republic and, therefore, created a right to make sure that all citizens could have guns to protect themselves.
Nonsense, says Stevens. No evidence for this argument. What Stevens does not add, but which I will, is how closely this idea of government attacking citizens matches the paranoid, right-wing view of government as the enemy of the people advanced by post-1960s movement conservatism.
The concern of the Framers, according to Stevens and others, was to make sure that the Federal government was not allowed to effectively take up a threatening position vis-a-vis the states--part of a much larger conversation about how to create a federal system in productive tension with the member states, rather than a federal system that effectively caused the states to die out, and therefore threatened the ability of the new republic to endure. The right of self-defense with guns in moments of confrontation is not in the 2nd Amendment, but is in common law.
That is not to say that the right to own, carry, and use guns is unconstitutional--nor to argue that use of guns should be prohibited. Quite the contrary. It is simply stating that the right of individuals to use arms in cases of confrontation holds no place in the core understandings of government, freedom, and citizenship as established in our founding Constitution.
"Scalia's Revolution: Citizenship is Based on the Right to Engage in Armed Confrontation with Other Citizens"
Now, without making any claim to be a Con-Law scholar, reading the DC v. Heller ruling makes it very clear that Justice Scalia's opinion has set in motion a kind of revolution--a fundamental shift towards a definition of citizenship based on the right to engage in armed confrontation with other citizens.
What Scalia tries to do--and succeeds, because his opinion is the court's ruling--is rewrite the very meaning of constitution by relocating it back to a time of religious war in England. Scalia argues that the main concern driving the Framers of the constitution was to make sure that citizens would not be attacked by their government the way that Protestants had been attacked in 17c England over a hundred years prior to the Framer's convention.
Again, let me repeat that to make sure everyone got it.
According to an opinion of Justice Scalia of the Supreme Court of the United States, the overriding concern of the Framers of our 18c Constitution was that citizens of the new republic would be oppressed in the way that subjects of 17c England were oppressed by the King. So, supposedly, the Framers enshrined the right of these new citizens to use guns in moments of confrontation to make sure that did not happen:
Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents...Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies....These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: "That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law."...And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most
rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that "[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence."
Scalia is arguing much more than the definition of 'right to bear arms' as put down in the 2nd Amendment. He is arguing that fundamental meaning of citizenship in The Constitution is a reaction against the oppression of Protestants by 17c English monarchy! If we accept this definition, we are left with the flawed and violent idea of a American citizenship--with an idea of citizenship grounded in the idea that a tyranny begins with government taking away the guns of citizens. In essence, Scalia is replacing the idea of a fundamental right on which American citizenship is based--booting freedom of expression to second or even fifth place, and pushing to the head of the line a supposed right to bear arms in cases of confrontation.
No Such Right--Until Yesterday
Let me be the first to welcome you to a new America!
Did you feel that cold wind on your neck? That was the definition of American citizenship changing and being replaced with a violent notion that America is rooted in unfettered vigilantism--that citizens are not free unless that have the means the right to shoot someone in a confrontation.
It is a startling change, sudden, and bearing vast consequences for every person in this country.
Justice Breyer, writing in the second dissent, said it best:
Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. 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.
Anyone living in a city knows exactly what Breyer is warning: a domestic arms race in America's urban centers and endless challenges to any and all concealed-carry or castle laws currently on the books.
DC v. Heller suggests--suggests--that there should be common-sense limits on the use of machine guns, automatic assault weapons, and other such guns beyond the pale of 'normal' use in cases of confrontation. But those exceptions will not last long.
The real achievement of Scalia's ruling is to put the court's official seal on a new definition of citizenship that the NRA and the right-wing in this country has been desperately trying to codify for half a century: that the meaning of citizenship is based on the right to shoot another person in a moment of confrontation.
Presidential election bet damned. If the courts do not return this country to a definition of citizenship based on the freedoms of the 1st Amendment--as the Framers of the Constitution intended--we are all in a heap of trouble.
Update [2008-6-27 15:19:16 by Jeffrey Feldman]:
OK...some feedback to a few recurrent criticisms in the comments (some put nicely, some not) is deserved, so let me see what I can do.
On Numbering of Rights:
The point about my overstatement vis-a-vis numbering indicating priority has been heard. Fair critique. It is an overstatement, but I'll keep it as is so folks can make sense of the push back in the comments.
Essentially, I do hold that the 1st is the foundation of the rest because the Framers were enlightenment thinkers who thought in terms of first principles. So the first is the most important, in my reading of the Constitution. And I also think the second was important because it addressed the overriding concern of the Framers as to the ability of a new system of states and a centralized Republic to endure without working against each other. Not sure how far down the list I would go in terms of priorities...so my argument about numbers gets weaker as we move down the list.
Individual Rights vs. Use
Both Breyer and Stevens argue that the problem with Scalia's ruling is precisely that it seeks to limit discussion of guns to a Constitutional question of individual rights when the issue that had hitherto been extended by the courts to the full question of use. That's the big issue. Stevens and Breyer dissent both to Scalia's method and its implications--the originalist approach which seeks only to talk about individual rights vs. the slew of earlier rulings in which the court talked about use. Whether or not one believes in individual rights is not the end of the issue, according to the dissents. The issue is use.
Definition of Citizenship
I do believe that the Bill of Rights, which pertains to the fundamental rights afforded to people in this country, defines a basic concept of the citizen within the U.S. system of government. Without these rights, we cannot have 'the people,' etc. That does not mean that the rights are limited only to citizens--they also extend to residents.
In conversations with NRA activists, one of the first things they will say is that the basis for our entire Constitutional system is the 2nd Amendment--that 'without the right to protect oneself with a gun, none of the other rights matter because you've been killed.' That is the definition of the basis of the system that Scalia renders legit and which I take issue with.
For those who reject that there is any redefining of citizenship going on in Scalia's opinion, I would simply ask that you consider where your definition of citizenship does come from and: is there a base level set of rights beyond which that citizenship begins to dissipate. If this diary leads to that conversation, that is a good thing, whether or not people agree with my reading of DC v. Heller and its significance.
One last point: On the shock value of the title. Fair enough that some disagree with the hyperbole. Obviously, one cannot know if something has been ruined. But I do believe this ruling is fundamentally damaging to the core concepts at the heart of our system of government. And the shock I've heard in the voices of DC residents in response to this ruling has led me to believe I am not alone.