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Judicial Review, Not Judicial Rewrite By: Alan Nathan
Washington Times | Wednesday, March 19, 2008


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.

The highest 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 their homes."

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."

Inarguably, a 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.

Understanding 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 freedom inviolate.

The 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 individual.

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.

We're talking 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.

Because the 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 process.

Consequently, 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.

Hopefully the justices will understand that when this particular right is fired upon, there are millions who can return the favor. 


Alan Nathan, a combative centrist and "militant moderate," a columnist, and the nationally syndicated talk show host of "Battle Line With Alan Nathan" on the Radio America Network.


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