Sneering Scalia: The right to bear whatever arms I say

( – promoted by buhdydharma )

Well, after the Supreme Court’s stellar 5-4 decision today in D.C. v. Heller (PDF file), I am saving all my pennies for the day when Antonin Scalia decrees that I can legally possess a TOW missile – because, as his majority opinion makes clear, he gets to decide what weaponry I get to own.

See, Scalia, in his special way, decided to decree that the District of Columbia’s ban on handguns was unconstitutional because – well, because, heck, a lot of people outside the District of Columbia legally own handguns, and that means they should be legal inside the District of Columbia, too.

And that’s what passes for the best legal thinking the right wing can come up with.

See, very fundamental to the modern interpretation of the Second Amendment’s wording, “the right of the people to keep and bear arms shall not be infringed” is the question, “Um – exactly which arms do the people have a right to keep and bear? I mean, can I keep and bear a Seawolf-class attack submarine?” And Scalia – in his patented “strict-constructionist-except-when-I’m-not” fashion – assembles a Frankenstein’s monster out of odd bits of legal precedent, in order to arrive at a conclusion he already has reached.

It’s comforting to know that your tax dollars are going to pay for the law clerks and clerical staffs and editors and webmasters who make it possible for anyone in the world to go onto the intert00bz and pluck out of the ether legal gold – no, legal diamonds – like this, wherein Scalia cites the Court’s previous most significant Second Amendment decision, 1939’s United States v. Miller (some emphases added):

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller‘s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller‘s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”

This delicious bit of circular reasoning means, in other words:

Well, we know people are going to think that we’ve declared open season on weaponry in private hands, but THIS IS NOT SO!!! No, no, no, no, no. Tsk, tsk. No, what this means is, people can only have in their homes what they can legally have in their homes. See? Doesn’t that make perfect sense, and cement the constitutional standard that we say we are establishing?

In his dissent, Justice Breyer nailed it (some emphases added):

Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.”. . . This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” . . . But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. In the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

Shorter Scalia et al.:

I believe handguns should be legal; therefore, I hereby decree that they are.

Okay, a little bit longer Scalia:

I believe handguns should be legal; therefore, I hereby decree that they are; I don’t care what local law says – except when it bans weapons that I agree today should be banned. I might change my mind next week, though, at which time I reserve the right to override the law prohibiting such previously-banned weapons, therefore by definition rendering them – hey, presto! – legal.

Which will then allow them to meet the constitutional threshold I just made up – about them being owned by “law-abiding citizens” and all – because, until I declared such weapons legal, all the people who owned them were, by definition, criminals – or, to use another phrase, not “law-abiding citizens.”

Res ipsa loquitir. Ipso facto. Dulce et decorum est. Gaudeamus igitur. Stare decisis. And all that.

Oh – never mind; fuck stare decisis. I never liked that. (Except when I did.)

This logic is – AMAZINGLY!! – identical to that used by BushCheney Justice Department and OLC advisors who, to paraphrase Rep. Jerrold Nadler, “redefine ‘torture’ out of existence” by using the following chain of logic:

Premise (a): everything we do to our detainees is legal;

Fact (b): “torture” is illegal;

Conclusion (c): therefore, whatever we do to our detainees must not be torture.

QED. Thank you, Mr. Moebius.

Now all I have to do is convince my local jurisdiction to pass an ordinance allowing ordnance (nice, huh?) up to and including a B61-11 (which I, like the President and Dick Cheney, would only ever use in self-defense, I promise), and I’ll be knocking on Fat Tony‘s door, asking for his imprimatur as a “law-abiding citizen.”

As an aside, to illustrate (as if further illustration were necessary) what a sleazeball Scalia is, at one point in his opinion, the esteemed justice blatantly lies, and then uses that lie to make a snide, derogatory remark about the dissenters. Writing again of 1939’s Miller case, Scalia says Miller contains

Not a word (not a word) about the history of the Second Amendment.

This is the mighty rock upon which the dissent rests its case.  [emphasis in original]

And then, in the footnote cited at the end of that paragraph, he sneers

As for the “hundreds of judges” . . . who have relied on the view of the Second Amendment JUSTICE STEVENS claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms. In any event, it should not be thought that the cases decided by these judges would necessarily have come out differently under a proper interpretation of the right.

– and, in so many words, gives weight (all of a sudden!) to “millions of Americans[‘]” understanding of “the true meaning” of the Second Amendment – wow – and then in the same breath sneers at those judges who, in defiance of that understanding of “millions of Americans,” (whose collective understanding of the Constitution, evidently, Scalia has gleaned through ESP) somehow lack “a proper interpretation of the right.”

As Stevens points out in his dissent, also, Scalia’s sneering dismissal of “an uncontested and virtually unreasoned case” (referring to Miller, in which no plaintiff appeared before the court to argue the case) rings patently hollow. Stevens’ rapier riposte, however, demonstrates that he possesses a trait about which Scalia can only dream; that is to say, subtlety:

Perhaps in recognition of the weakness of its attempt to distinguish Miller, the Court argues in the alternative that Miller should be discounted because of its decisional history. It is true that the appellee in Miller did not file a brief or make an appearance, although the court below had held that the relevant provision of the National Firearms Act violated the Second Amendment (albeit without any reasoned opinion). But, as our decision in Marbury v. Madison. . .  in which only one side appeared and presented arguments, demonstrates, the absence of adversarial presentation alone is not a basis for refusing to accord stare decisis effect to a decision of this Court.

Heh. Marbury v. Madison. Ouch.

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