Justice Scalia in Concurrence in McDonald

Monday 28 June 2010 - Filed under Firearms + SCOTUS

Justice Scalia, despite being the author of Heller which essentially spells out exactly what the right to bear arms means, remains silent except only to dispute one point made by Justice Stevens in his dissent: that the 2a doesn’t fit the mold of substantive rights to be incorporated because “I know so.”

I can find no other explanation for such certitude except that JUSTICE STEVENS, despite his forswearing of “personal and private notions,” post, at 21 (internal quotation marks omitted), deeply believes it should be out.

The subjective nature of JUSTICE STEVENS’ standard is also apparent from his claim that it is the courts’ preroga­tive—indeed their duty—to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine, post, at 19–20, and n. 21. Courts, he proclaims, must “do justice to [the Clause’s] urgent call and its open texture” by exercising the “inter­pretive discretion the latter embodies.” Post, at 21. (Why the people are not up to the task of deciding what new rights to protect, even though it is they who are authorized to make changes, see U. S. Const., Art. V, is never ex­plained.2) And it would be “judicial abdication” for a judge to “tur[n] his back” on his task of determining what the Fourteenth Amendment covers by “outsourc[ing]” the job to “historical sentiment,” post, at 20—that is, by being guided by what the American people throughout our his­tory have thought. It is only we judges, exercising our “own reasoned judgment,” post, at 15, who can be en­ trusted with deciding the Due Process Clause’s scope— which rights serve the Amendment’s “central values,” post, at 23—which basically means picking the rights we want to protect and discarding those we do not.

It’s fucking amazing1 that there are SCOTUS Justices who actually believe that we need to codify rights not specifically written down, yet at the same time ignore some of those that are.

JUSTICE STEVENS moves on to the “most basic” con­straint on subjectivity his theory offers: that he would “esche[w] attempts to provide any all-purpose, top-down, totalizing theory of ‘liberty.’” Post, at 22. The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason. Indeterminacy means opportunity for courts to impose whatever rule they like; it is the problem, not the solution. The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd. If there are no right answers, there are no wrong answers either.

[. . .]

The next constraint JUSTICE STEVENS suggests is harder to evaluate. He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post, at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful conse­quences? Attempting to give the concept more precision, JUSTICE STEVENS explains that “sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution.” Ibid. Both traits are undeniably admirable, though what relation they bear to sensitivity is a mystery. But it makes no difference, for the first case JUSTICE STEVENS cites in support, see ibid., Casey, 505 U. S., at 849, dispels any illusion that he has a meaningful form of judicial modesty in mind.

[. . .]

If JUSTICE STEVENS’ account of the constraints of his approach did not demonstrate that they do not exist, his application of that approach to the case before us leaves no doubt. He offers several reasons for concluding that the Second Amendment right to keep and bear arms is not fundamental enough to be applied against the States. None is persuasive, but more pertinent to my purpose, each is either intrinsically indeterminate, would preclude incorporation of rights we have already held incorporated, or both. His approach therefore does nothing to stop a judge from arriving at any conclusion he sets out to reach. (emphasis added)

It occurs to me that I would bet it is the entire point of Justice Stevens’ blathering on about judicial restraint; that judges ought to be able to arrive at the conclusion they desire based on little more than personal bias.  NOTE TO STEVENS (AND ALL OTHER REPUBLICRAT-tards WHO ARE OF LIKE MIND):  SHIT DOES NOT WORK THIS WAY, ESPECIALLY THOSE RIGHTS DEEMED SO FUNDAMENTALLY IMPORTANT BY THE FOUNDERS AS TO BE WRITTEN DOWN IN THE FUCKING BILL OF RIGHTS.

JUSTICE STEVENS’ final reason for rejecting incorpora­tion of the Second Amendment reveals, more clearly than any of the others, the game that is afoot. Assuming that there is a “plausible constitutional basis” for holding that the right to keep and bear arms is incorporated, he asserts that we ought not to do so for prudential reasons. Post, at 47. Even if we had the authority to withhold rights that are within the Constitution’s command (and we assuredly do not), two of the reasons JUSTICE STEVENS gives for abstention show just how much power he would hand to judges. The States’ “right to experiment” with solutions to the problem of gun violence, he says, is at its apex here because “the best solution is far from clear.” Post, at 47– 48 (internal quotation marks omitted). That is true of most serious social problems—whether, for example, “the best solution” for rampant crime is to admit confessions unless they are affirmatively shown to have been coerced, but see Miranda v. Arizona, 384 U.S. 436, 444–445 (1966), or to permit jurors to impose the death penalty without a requirement that they be free to consider “any relevant mitigating factor,” see Eddings v. Oklahoma, 455 U. S. 104, 112 (1982), which in turn leads to the conclusion that defense counsel has provided inadequate defense if he has not conducted a “reasonable investigation” into poten­tially mitigating factors, see, e.g., Wiggins v. Smith, 539 U. S. 510, 534 (2003), inquiry into which question tends to destroy any prospect of prompt justice, see, e.g., Wong v. Belmontes, 558 U. S. ___ (2009) (per curiam) (reversing grant of habeas relief for sentencing on a crime committed in 1981). The obviousness of the optimal answer is in the eye of the beholder. The implication of JUSTICE STEVENS’ call for abstention is that if We The Court conclude that They The People’s answers to a problem are silly, we are free to “interven[e],” post, at 47, but if we too are uncertain of the right answer, or merely think the States may be on to something, we can loosen the leash.

A second reason JUSTICE STEVENS says we should ab­stain is that the States have shown they are “capable” of protecting the right at issue, and if anything have pro­tected it too much. Post, at 49. That reflects an assump­tion that judges can distinguish between a proper democ­ratic decision to leave things alone (which we should honor), and a case of democratic market failure (which we should step in to correct). I would not—and no judge should—presume to have that sort of omniscience, which seems to me far more “arrogant,” post, at 41, than confin­ing courts’ focus to our own national heritage.

[. . .]

But the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution­ writing; but whether it is the best means available in an imperfect world. Or indeed, even more narrowly than that: whether it is demonstrably much better than what JUSTICE STEVENS proposes. I think it beyond all serious dispute that it is much less subjective, and intrudes much less upon the democratic process. It is less subjective because it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-­political First Principles whose combined conclusion can be found to point in any direction the judges favor. In the most controversial matters brought before this Court—for example, the constitutionality of prohibiting abortion, assisted suicide, or homosexual sodomy, or the constitu­tionality of the death penalty—any historical methodology, under any plausible standard of proof, would lead to the same conclusion. Moreover, the methodological differ­ences that divide historians, and the varying interpretive assumptions they bring to their work, post, at 52–54, are nothing compared to the differences among the American people (though perhaps not among graduates of prestig­ious law schools) with regard to the moral judgments JUSTICE STEVENS would have courts pronounce.

[. . .]

And the Court’s approach intrudes less upon the democ­ratic process because the rights it acknowledges are those established by a constitutional history formed by democ­ratic decisions; and the rights it fails to acknowledge are left to be democratically adopted or rejected by the people, with the assurance that their decision is not subject to judicial revision. JUSTICE STEVENS’ approach, on the other hand, deprives the people of that power, since what­ ever the Constitution and laws may say, the list of pro­tected rights will be whatever courts wish it to be.

Though President Obama has very recently scoffed at activist judges and the “disrepair” to which their decisions are leading us as a nation, we have an “approved-by-Obama” judge advocating for said activism as the best means of jurisprudence. It’s nice when an agenda is blatantly exposed, especially when it exposes the president trying to blow smoke up our collective asses.  How much would one like to wager that Barry would concur completely with Stevens’ position, all while bashing so-called conservative activist judges.

1.  And by “amazing” I really mean fucking ludicrous.

2010-06-28  »  madlibertarianguy