Thursday, June 26, 2008

Amendment 2 / Supreme Court

I was chagrin to see the Supreme Court ruling on gun laws in D.C. the other day -- anachronistic maintenance of a constitutional reading that is not good for communities across the U.S. Unfortunately, the Roberts led Supreme Court and the conservative lobby is going about 'having' and 'possessing' the Constitution in a way that is not appropriate to these times but follows the letter of the law, as they read it, and is arguably contrary to the spirit of the Constitution. Justice Antonin Scalia in his comments following the ruling admitted that indeed we live in a different world than 18th Century America, but that it is not the Supreme Court's privilege to make the 2nd amendment extinct.
While I am not sufficient to argue with Justice Scalia, Judge Stevens is. Stevens dissent stated, "The Court 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.... I could not possibly conclude that the Framers made such a choice." Agreed. Thomas Jefferson made the observance that it is the responsibility of each generation to determine and construct a moral and civil code.
Are we so dim and impotent as to imagine that our responsibility as U.S. citizens is to rigidly abide by and preserve a Constitution written for a people over 200 years ago? If we are not more progressive and relevant than this we will soon be discussing the Empire that declined and fell that we were so busy and intent on trying to preserve as if it were flawless. We must get over this infallible view of the Framers and their dear Constitution, which is still dear, but should not be static, but used as a guiding light for future days of governance and living in a sane Republic.
Justice Breyer filed a separate dissenting opinion, that is worth noting, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia's handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.
The Breyer dissent looks to early municipal fire-safety laws that forbade the storage of gunpowder (and in Boston the carrying of loaded arms into certain buildings), and on nuisance laws providing fines or loss of firearm for imprudent usage, as demonstrating the Second Amendment has been understood to have no impact on the regulation of civilian firearms. The dissent argues the public safety necessity of gun-control laws, quoting that "guns were 'responsible for 69 deaths in this country each day.'"
With these two supports, the Breyer dissent goes on to conclude, "there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." It proposes that firearms laws be reviewed by balancing the interests of Second Amendment protections against the government's compelling interest of preventing crime.
I agree with the more 'liberal' Justices that we need to recognize a use of the Constitution that is appropriate to our times - i.e. wielding wisely fire arms in our present culture with the aid of the wisdom of the 2nd amendment.
Further, as Stevens observed, it is crucial that we recognize that the authors of 2nd Amend would not intend to aid and abet crime with the Constitution, and it is not a stretch to imagine that they would intend for us, these many years later, to legislate ourselves, as opposed to laying that responsibility at their feet some 200 years in the past.
With this train of thinking, I believe we need to go further even, and in certain aspects 'reconstruct' the Constitution or our changed world. Amendments do this in part, but some things, like the 2nd Amendment, need changed de facto for the circumstance we live in. It is not a matter of'interpretation', it is a matter of what we need for a better nation, a better self-governance in this day.
The mentality of the conservative Supreme Court majority - seems to be playing the role of 'protector and preserver' rather than thoughtful and dynamic Judicial minds. Inane policies and stunted mentalities such as this ruling provides, in defense of a literal reading of the Constitution, defines the conservative politic. Arguably, this brand of politic was not in the spirit or minds of the architects of this Nation nor in the Constitution that helps govern it. After all, the Framers were revolutionaries and visionaries, unwilling to accept a detached rule over their lives, but very willing to throw off King George of England in favor of making smart decisions for themselves.
If we cannot make smart decisions for ourselves, preferring to abide in static conservation of what went before, our plight will be met with peril.

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