Today’s opinion in the Heller case is classic Scalia. Founded on a profound and in-depth historical analysis loaded with detail, Scalia’s opinion defines originalism. For 54 pages of rhetorical flourish, he constructs an overwhelming argument and disposes in detail of the dissenters’ “wrong headed” contentions. Every word is authentically his.
Until page 54.
There we find a section that seems a bit out of place among Scalia’s defining second amendment opus. In simple, straightforward language, Section III of the majority opinion limits the impact of everything Scalia had previously presented. It is the very definition of judicial modesty.
And to my mind, this section is the illustration of the Chief Justice’s hand at work behind the scenes. The impact, I would wager, could have been the critical difference between a five vote majority with no concurrences or partial joiners. The result? A clear, decisive decision from the high court — a rarity in major cases in recent years.
Now, divining the behind-the-scenes machinations of the Supreme Court is universally difficult and dangerous, but let’s do it anyway.
It’s not hard to see Justice Kennedy flirting with Justice Breyer’s view, which brings the real world impact of importance of the D.C. gun ban to the fore, and suggests that Justice Scalia’s view will result in more crime and real harm to real people. It also invents a new line of Constitutional reasoning that might be appealling to Justice Kennedy’s emerging O’Connor-esque, finger-in-the-wind jurisprudence.
Faced with losing the majority for a strong opinion supporting an individual right to keep and bear arms, one can imagine the Chief Justice penning Section III himself, persuading Justice Scalia to include it, and managing to keep Justice Kennedy on board by assuring him that while the opinion is a landmark, only through further cases will the high court shape the details of Second Amendment jurisprudence.
Indeed, a paragraph near the end of the opinion, which reads almost as though it was added at the last moment, sounds as though it was intended to magnify and clarify the modesty embodied in Section III:
JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us. [Citations omitted.]
And then there is the opinion’s last paragraph, which is remarkable for the frankness of its acknowledgement of the real world impact of the Court’s decision.
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Both of these examples convey an underlying uneasiness among one or more justices who have joined the majority. But whereas in the past, that uneasiness would have manifested itself in a confusing myriad of concurring and dissenting opinions, in the Heller case, the majority hung together. And some force evidently made it so.
Perhaps I am underestimating Justice Scalia by supposing that holding his majority fell to one of his colleagues. There are an infinite number of ways that I could have bungled my own reasoning.
But it is not unfair to say that whatever the mechanics, the outcome is one that anyone who values clear rulings with a minimum of ambiguity can celebrate.
Jim: Say, Marshall… Yes, this is Jim. Yes, I know it’s been a long time since I’ve posted on On Tap. Yes, I know my picture has been affixed with the label “HAVE YOU SEEN ME?” and is now circulating on milk cartons.
Anyway, one line of the post left me grinding my teeth, or even more than usual. You note the section that “limits the impact of everything Scalia had previously presented. It is the very definition of judicial modesty.”
Thus, I fear, strict constructionists will always be outgunned in the legal tug of war in a “4 vs. 4 with one swing vote” Court. The “living constitution” crowd rarely feels the need to make its decisions modest or limited; but even when the strict constructionists make a decision I agree with, they narrowly tailor the decision. It feels like even when we win, we lose.
Cam: I think it’s an interesting take, and it jibes with what I’ve been thinking. I told a co-worker this morning that I had convinced myself that we’d see a 9-0 ruling on an individual right (which we did, or at least the dissent doesn’t argue the individual right point), but that the split would come over how far the right goes. I actually had almost talked myself into believing that Justice Ginsberg would be writing for a 5-4 majority (along with Breyer, Stevens, Souter, and Kennedy) in declaring the 2nd Amendment an individual right but one that the D.C. laws don’t violate. I’m glad I was wrong. 
The Senator from Illinois isn’t flip-flopping on accepting public financing for his campaign.
He’s just Barack-tracking.
He does that a lot.
I’ve been writing a lot about the EU lately, and I apologize to both our readers if I’m boring you. But it’s been an eventful week.
Today, Nikos Konstandaras, the editor of a Greek newspaper, pens an opinion piece for the Washington Post website about last week’s Irish vote rejecting the Lisbon Treaty. If you haven’t been paying attention — and you may be excused for your apathy — the Lisbon Treaty was the compromise for structural EU reform following the defeat of the EU Constitution in 2005.
In his analysis, Konstandaras essentially blames Irish voters for holding up progress across Europe. He implies that they are stupid and provincial, blaming the defeat on “more domestic concerns regarding abortion, taxes and jobs that seem to have swayed their vote.” He goes on to urge European leaders to ignore the vote and press ahead.
Alas, Konstandaras’ argument, which has been embraced by other European commentators, is as arrogant as it is incorrect. And its tenor exemplifies why efforts to reform the EU continue to go down to defeat.
So, what did he get wrong?
Start with a simple, undeniable fact: Had the same referendum been held in virtually any other European nation, including France, Germany and the UK, it almost certainly would have been defeated. That’s exactly the reason that none of those nations’ governments put the treaty up for a vote. So the Irish vote, which Konstandaras wants to cast aside, was the one and only barometer for popular sentiment.
So, why are voters ready to stand in the way of reform? In short, it comes down to trust. Europeans, by and large, seem to instinctively understand that the EU is broken, and they are wary about handing any further power to Brussels bureaucrats.
Further, the EU is not a democratic institution, and Europeans increasingly seem to realize that. They elect MEPs, but they seem largely irrelevant in the European system. It’s the commissioners and bureaucrats who hold the power. And creating a European president seems a step in the wrong direction.
This shortcoming of democracy is exhibited, time after time, through arrogance. Indeed, the very arrogance that Konstandaras demonstrates by offhandedly dismissing the Irish vote.
I haven’t been in Europe long enough to have a strong opinion about the value of the EU, the Lisbon Treaty or any of the other fine points of European politics. But if I were advising those that think the EU needs to be a strong institution with a structure that allows greater flexibility and decisiveness, I would tell them in clear terms that they have to start listening. Their arrogance is undermining their case and making success harder and harder to achieve.
M. Night Shymalan’s “The Happening”:
The Crappening.
Read more if you want a longer review.
The U.S. Senate has been called “the world’s greatest deliberative body.” Over it’s history, it has conducted long, in-depth debates over complex and tumultuous issues.
Indeed, that’s just what the Founders intended. In setting Senate terms at six years, James Madison and the other framers of the Constitution wanted to create a legislative body that would be generally unaffected by the popular whims of the moment. They reasoned — correctly — that the House of Representatives would be more responsive owing to its members being compelling to stand election more frequently.
But the days of the great and thoughtful debates between men like Daniel Webster and John C. Calhoun are long behind us, and the Senate of today seems to most closely resemble a daily playground fight.
This week, eminent columnist Bob Novak, who has been covering the Senate since the Kennedy presidency, turned his attention to Majority Leader Harry Reid’s use of a previously arcane procedure known as “Filling the Tree” to stymie debate. Novak could have selected a dozen other such tactics, the threat of which in years past would have forced Senators to find another solution, lest they demonstrate in public a terrible breakdown of the Senate’s historic comity.
For while the Senate has been the home of great debate, it has also been the birthplace of great compromise (like this one, for example). Senators in ages past used to forge deep friendships with one another that transcended partisan labels. When all else failed, there were always a few who could sit down quietly and look for a solution to a thorny problem.
But today’s Senators, surrounded as they are by all-too-often sycophantic staffers, lobbyists and donors, don’t have the incentive to form those relationships. Meanwhile, the pursuit of media appearances and campaign funds has dramatically limited the amount of social time that members spend with one another.
The result? A breakdown of dialogue, both official and unofficial. Leaders on both sides use the Senate’s rules to score political points rather than finding ways to shape important legislation.
But the worst part, as Novak observes, is that the rest of us are either too apathetic or too ill-information to care. Behavior that would have sparked outrage in the past barely registers a footnote in most daily newspapers.
It strikes me that this is an area where we bloggers could really help. To be sure, most bloggers are strong partisans, but surely we can hold our own party leaders to account when they behave in a way that disgraces the institution in which they serve. Because — and let’s be honest here — if the Senate is in a death spiral, as James says, there is more than enough blame to go around.
Last weekend, I took the Eurostar over the Paris and spent a couple of days. First of all, I had a lovely time taking in the major tourist spots. The Notre Dame was amazing. Louvre unbelievable. Musee d’Orsay sublime. And the food, of course, was wonderful.
Mostly, however, I did what I love to do in any new city: I eschewed transport and just wandered the streets.
On Saturday afternoon, I was wandering along the river on the Left Bank, when I passed this government building:
You’ll notice the French national flag flapping away on the left. But it was the flag on the right that struck me. It’s the EU flag, and I can’t say that I recall seeing one anywhere before outside of Brussels.
After seeing this, I started paying attention, and during a walk around a neighborhood full of government buildings that same evening, I noticed that nearly all French official buildings fly the EU flag.
First of all, I wonder if other EU nations do the same. I can say with certainty that the UK does not.
But more broadly, this practice struck me as a huge symbolic gesture of fealty to the EU. It suggests that the French have surrender the primacy of their own nation and given over their sovereignty to Brussels.
Now, I realize that I am probably overreacting. After all, it’s just a flag. But still… To me, it sends a powerful message.
What do you think?
It emerged this week that the U.N.’s Human Rights Council suggested that the United Kingdom should abolish its monarchy and put in place a new form of government based on a written Constitution.
The Human Rights Council, you might recall, is the U.N. body that welcomes members like Cuba and takes no action against countries like North Korea while routinely condemning Israel.
Alex Singleton, writing on the Telegraph’s politics blog, points out a few more inconvenient facts:
When people are being murdered in Zimbabwe and free speech is outlawed in North Korea, it’s good to see that the UN has its priorities right. The fact is that the constitutional arrangements of the UK actually work quite well. A written constitution, far from promoting human rights, would inevitably diminish them by promoting entitlements to resources, rather than freedoms from state interference. Besides, we already have a bill of rights (it was passed by Parliament in 1689).
So, what was the substance of the discussion?
According to this story, “Syria accused the UK of discriminating against Muslims and Iran complained about the UK’s record on tackling sexual discrimination.”
Seriously? Iran? On sex discrimination? The country that mandates how women dress and has literally codified discrimination?
If it weren’t so pathetic, it would be laughable.
More good commentary on this here and here.
If you think the U.S. government is meddlesome and intrusive, the EU will knock your socks off.
Lately, EU bureaucrats have set their sights on health and safety in hotel kitchens, and their resulting regulations, as ever, put a metaphorical stick in the eye of the principles reasonableness and common sense.
The issue? Dogs in homes. Specifically, homes that also rent out rooms to vacationers and feed their guests breakfast each morning during their stay.
Thanks to the EU, these bed and breakfast owners may soon have to choose between the family business and the family pet.
Owners of bed and breakfasts have been banned from keeping dogs in their kitchens under a European Union ruling that could see hundreds of family-run businesses close.
Officials claim that the animals pose a potential health and safety hazard to guests’ food. However, bed and breakfast owners vowed to close rather than turn out the family pet.
Oliver Letwin, the former shadow home secretary, called the legislation “barking mad”.
Someone far smarter than me once said that the problem with legislators is that they’re always legislating, and the problem with regulators is that they’re always regulating. That stands to reason, of course. If they aren’t, they literally are failing to do their job. The question of whether it’s a good idea to legislate or regulate never seems to enter their mind.
The result: Stupid, wasteful, insulting, freedom-sucking mandates like this one.