The Supreme Court is scheduled to resolve a conundrum they haven’t addressed in over sixty years: How can they look at themselves in the mirror every morning having voted to stop the re-count in Florida in 2000?
No, seriously: just what does the second amendment mean and what does it protect?
“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear high powered semi-automatic weapons shall not be infringed.” Or something like that.
Here is the question on Nino Scalia’s mind: “Its Monday, are they serving baked chicken again in the Cafeteria?”
The reason Judge Scalia is worried about what he eats is that as a self proclaimed “semi-strict constructionist” his judicial philosophy might well lead him to a result his conservative friends will abhor and will give him heartburn. And if his conservative friends get upset, no more free hunting trips.
Lets take a look at the two parts of the Second Amendment:
“A well regulated militia, being necessary to the security of a free state" - a strict constructionist would call this “the purpose clause”, meaning the reason for the language to follow.
Therefore, interpreting the amendment is simple- once the army is well funded and armed, the purpose of the amendment has been satisfied. The term “well regulated militia” must refer to something more than a bunch of beer drinking guys out on the paint ball course on a Sunday afternoon. (Readers with a knowledge of history will recall that Thomas Jefferson loved, just loved, paintball.)
If you go on the Scotusblog website, you can read a fascinating amicus brief by two professors of English linguistics, HERE
with a specialty in 18th century English linguistics that arrive at the same opinion (albeit more elegantly). While long time and careful readers may question why Rumpole spent his weekend reading amicus briefs in a second amendment case instead of his more usual fare of racing forms and football statistical analysis spreadsheets, we shall save that answer for another day and more appropriate forum.
Like the baked chicken in the Supreme Court cafeteria that they serve on Mondays, the simple analysis based on original intent and plain meaning leaves people like Justice Scalia (not to mention his pal and sometimes hunting buddy Dick “shotgun in your face” Cheney ) so unsatisfied. There’s just got to be more.
Part II (the subject clause):
“the right of the people to keep and bear arms”
To “keep arms” must, our original intent theorists suggest, mean personally keep.
But, the liberals reply, the amendment doesn’t just say “keep arms” – it says “keep and bear arms” and as the Justice Department has recognized in an internal memo leaked to Rumpole, “keep and bear arms” plainly refers to “bearing arms” in a military context. Thus the amendment merely provides for the arming of the militia, not everyone else.
You see dear readers, what has occurred here, as in Bush v. Gore, is that the philosophical bent of the various collations of the Justices leads them to conclusions that are opposite to the politics that got them on the court in the first place.
Ginsberg and Stevens and Breyer will all be arguing that strict construction based on plain reading and the framers' intent leads to the inescapable conclusion that the Second Amendment only protects the arms of citizens to populate a militia. And the military being well funded, the second amendment does not prohibit governmental restrictions (or..gasp ..bans) on firearms. The problem is that Ginsberg, et.al., have too much invested in a broader judicial philosophy in almost every other area of constitutional law to carry the strict constructionist banner in this, or any other case.
Thomas and Scalia and Alito and Roberts, are all torch carrying conservatives, and as such, the second amendment’s protection of their Neanderthal backers' right to shoot each other in the face during hunting trips is sacrosanct. Yet a traditional strict constructionist and original intent analysis leads them astray from the promised land: a gun in everyone’s hand.
So what to do?
In Rumpole’s world, this second amendment case is the perfect storm of chickens coming home to roost. Each bloc of the court- liberal and conservative- must use the other side’s preferred method of constitutional analysis to arrive at the conclusion they prefer. Scalia and Thomas must find “life and breadth” as well as “penumbras” (see, Griswald v. Connecticut, and Justice Douglas’s creation of the “right to privacy” in a “penumbra” of the bill of rights) in the simple phrases they are reviewing, while Ginsberg and Breyer et.al., must argue for original intent to protect the government’s right to regulate firearms.
This is just too good to be true. It’s a game of constitutional chicken and the first one to blink is the first justice that abandons their judicial philosophy and admits to being result oriented.
Who will blink first?