When are Supreme
Court justices interpreting the Constitution, and when are they simply amending
it? The judicial-restraint crowd prefers a more denotative analysis relying on
the actual words employed by the framers. Those opting for the living-document
philosophy, or judicial activism, want the court to interpret our founding
document in a way that accommodates their positions on laws that might not
otherwise pass literal muster. Since their advocates cannot meet the written
standard, they want the standard to meet them.
On Nov. 20, the
Supreme Court granted the D.C. government's request to examine the
constitutionality of its handgun ban, which was struck down by the U.S. Court
of Appeals for the District of
Columbia on the grounds that the law had violated
citizens' Second Amendment rights.
The case, now
called D.C. v. Heller, originally
pitted six Washingtonians against city officials over the residents' right to
own a handgun for personal protection and keep rifles loaded without the
obligatory trigger-locks. It's scheduled to be heard in March.
At issue are two
dueling perspectives: the collective right to own firearms, which is contingent
upon the existence of a militia; and the individual right, which is reliant
only upon the citizens' independent preference.
court explained that it would assess whether the D.C. gun ban "violates
the Second Amendment rights of individuals who are not affiliated with any state-regulated
militia, but who wish to keep handguns and other firearms for private use in
Let us look at
the Second Amendment: "A well regulated militia, being necessary to the
security of a free state,
the right of the people to keep and bear arms, shall not be infringed."
militia is an on-call citizens-army, and, if needed, becomes a recruitment of
the already-armed. Given that dynamic, you must first have an ongoing right of
the people to keep and bear arms in order to quickly form the militia upon
which that free state's
security is predicated. In short, the reference to a regulated militia is a
parenthetical rationale — not a contingency.
that the free state
in question might have a population needing to protect itself from a
potentially rogue local government, its affirmed free-state entitlement would
be endangered were the collective vs. individual right to gun ownership prevail
as the standard. Unambiguously, it would subordinate citizens to the very threat
against which they might theoretically have to fight in order to keep their
anti-Federalists were the ones who made accepting the Constitution contingent
upon the Federalists' promise to add the Bill of Rights soon after — lest the central
government have disproportionate power over individual liberty. Accordingly, it
would have been counterintuitive to have this one right entangled in a
collective criteria that leaves it ripe for local-government interference,
while each and every other one of the nine remaining rights was unquestionably
Had the British
been able to successfully impose the collective framework, our soldiers would
have been sorely diminished in their capacity to fight the nation that bore us.
Consequently, we'd all be better gardeners but lousy cooks.
And spare me the
overly published argument about how the document is too arcane to be taken
literally and therefore must be "interpreted" in a more adaptive way.
The Constitution was not rendered in Chaucerian English from the 1300s, and
accordingly requires no linguistic deconstruction from an ancient tongue.
about literature that was written 50 years after Henry Fielding had further
popularized the novel with such works as The History of Tom Jones,
and 54 years before Charles Dickens had written A Christmas Carol.
You'll find the writings of both Fielding and Dickens in literature programs
throughout the world, and will be delighted to learn that neither requires any
remedial translation classes.
Supreme Court is a co-equal branch and not a tyrannical tree, it is no less
bound by the Constitution's separation of powers that define our government's
system of checks and balances than are the legislative and the executive
branches. The Constitution is our people's directive to the very government it
created and accordingly cannot be changed by it — save through the amendment
while Marbury v. Madison
in 1803 rightly clarified the Supreme Court's authority for judicial review
(i.e., its power to interpret whether challenged laws pass constitutional
muster), the right to interpret has never been a license to unilaterally amend.
After being legitimately proposed, amendments require approval from either
three-fourths of the state legislatures or national conventions in
three-fourths of the states.
justices will understand that when this particular right is fired upon, there
are millions who can return the favor.