Dahlia Lithwick reviews the oral argument in the big gun case, and note the Humpty-Dumpty world it has produced:
Today we have four liberals rediscovering the beauty of local government and judicial restraint and five conservatives poised to identify a fundamental personal right that will have judges mucking about in gun cases for years to come. After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right. And while they don't seem much concerned about how the judges will manage it, they've just about ensured that judges around the country will soon be ruling in gun cases the way they used to rule on speeding tickets.And Jack Balkin finds the whole thing utterly predictable, and very much in line with the thinking of those who believe in a living constitution. And liberals who don't like it should be more politically active.
Posted by armand at March 19, 2008 02:14 PM | TrackBack | Posted to Law and the CourtsIf you don't like the result in Heller, it's because you don't like a country dominated by political conservatives who have influenced political culture for the past generation, and who have sufficient political clout that they have been able to staff most of the federal judiciary and a majority of the positions on the Supreme Court.
Living constitutionalists like me can make fun of the Supreme Court all they like, and believe me, I'm happy to throw in my share of zingers. But we should recognize that we are making fun of the same forces that produce decisions that keep the Constitution in line with changing attitudes. In this particular case, they are changing attitudes that most liberals like myself do not like. Well, that's constitutional politics. If you don't like the living Constitution you get, you really should be working harder to get the national politics you like, because that's pretty much how the Constitution changes over time. Living constitutionalism isn't just a set of positions about interpretation, it's a process of argument and persuasion that gets worked out in politics and is eventually reflected in law. The engines of living constitutionalism gave us Lawrence, now they give us Heller; that is how the game is played. As they say about those Powerball jackpots, you can't win if you don't play.
In what the fuck weirdass alternate universe is the right of American citizens to keep and bear arms for personal and collective self-defense a "new" right, or evidence of "living constitution" social engineering nonsense? It's clearly, obviously, flagrantly the Founders' original intent, and anyone arguing otherwise is misinformed or doing so in bad faith -- usually the latter. Even Tribe agrees with that much, and has for decades.
Posted by: jacflash at March 19, 2008 02:53 PM | PERMALINKUh, I think the point is that such a reading fits with with a "living constitution" understanding - but that certainly doesn't preclude it also fitting with an originalist reading. But a "living constitution" reading might be more important since apart Thomas (and maybe Alito? I don't know how he describes himself) no one on the Court describes him/herself as an originalist.
Posted by: Armand at March 19, 2008 03:14 PM | PERMALINK