Thursday, June 26, 2008

Gist Sufficient, or Not, for Supreme Court

The latest ruling by the Supreme Court struck down a Washington DC ban on handguns. Article 2 states:
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.

In dissent, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons"; such evidence "is nowhere to be found." Stevens infers the second amendment allows laws so draconian as to be an outright ban, effectively, on having a working gun in your personal residence. In contrast, earlier this month the Supreme court ruled that the death penalty violated the prohibition on "cruel and unusual punishment".

So in one case, you have a justice saying that the government can effectively negate someone's right because the specifics of the prohibition are 'nowhere to be found' in the Constitution, even though it's clearly the gist of the second amendment. In another case, the government's ability to apply the death penalty in cases of rape are nowhere to be found, but it is implied via the vague language prohibiting 'cruel and unusual punishment'.

I'm for abortion and guns, and think you ought to only kill those who commit murder (so that a rapist knows his punishment can get worse if he kills his victim), but that's besides the point. For some justices the second amendment can be parsed into a baning guns in practice because such a specific ban was not mentioned, but a ban on abortions is not permitted via the mention of a 'right to privacy', or that death penalties for non-capital offenses are implied by the phrase 'cruel and unusual'. It seems the Constitution's is either sufficiently vague as to grant a right (to have an abortion, to not allow the death penalty), or not sufficiently detailed as to not grant a right (to bear arms). Details are necessary, or not, when reading the constitution, depending on who's ox is being gored.


Anonymous said...

off topic but priceless

Anonymous said...

To make matters worse, a "Right to Privacy" is actually never referred to in the Constitution, it was ~discovered in the 20th century, in the "penumbras" and "emanations" of the Bill of Rights.

Anonymous said...

Take a look at Posner's How Judges Think. Essentially the judges on the Supreme Court just do what they want. 5 guys wanted to allow guns, 4 guys didn't. Then each side went to the text to justify their approach.