[Yes, the full Senate confirmed Elena Kagan by a vote of 63 to 37 on August 5th. She has already been sworn in as a Justice of the Supreme Court. But questions, about her and about the questions at her hearings, are hardly resolved. Ditto for the Supreme Court's 2 recent decisions about gun rights. And those, in turn, raise perennial questions about the role of the Justices and about constitutional rights.]
The 2d Amendment's purpose was to guarantee that the federal government would not interfere with the right of states to maintain their own "well-regulated" armed forces. Only by ignoring the explicit prefatory language of the 2d Amendment can the conservative Justices (or conservative Senators or anyone else) insist that the 2d Amendment was intended to guarantee an individual's rights. And only by tortured logic can the 2d Amendment's right of states against federal restrictions be made to apply against the states themselves.
Sorry, but the conservative Justices and Senators are fudging (to put it as kindly as possible). Driven largely by ideological intransigence.
But that's only half the story.
The Founders of this Nation and the Framers of the Constitution believed in an individual's right to keep and bear arms. They believed that right to be fundamental--i.e., an essential liberty in a free society. There is simply far too much that has been researched and written about the subject to deny that historical truth. Only by ignoring the historical record, as well as the persistent, dominant belief of Americans, can the liberal Justices (or liberal Senators or anyone else) deny that the right of an individual to have firearms is a fundamental part of the American tradition of freedom.
No, the 2d Amendment's purpose was not about that. Again, its purpose was protecting state militaries. And no, there is no other Amendment or provision in the Constitution that was intended to protect the individual right to have firearms.
But so what?
Indeed, liberal Justices (and liberal Senators--and conservative Justices and Senators when it suits them) understand full well that the absence of a Constitutional Amendment or provision guaranteeing a right is hardly conclusive. It surely does not mean that the right does not exist or was intended to be sacrificed. Most of our most cherished rights were nowhere mentioned in the body of the Constitution or in the Bill of Rights or in any subsequent Amendment.
[We discussed this in the last post: Guns & Rights & The States (Some Final Q's from the Kagan Hearings, Part 7), Aug. 4, 2010.]
In fact, the Framers of the Constitution--including James Madison and John Jay and Alexander Hamilton--were very concerned about listing any rights in the Constitution. They were initially against a Bill of Rights. Why? Because they were afraid that if some rights were listed, some people (tyrants, ignoramuses, etc.) would argue that the rights that weren't listed don't exist.
"Where is that right in the Constitution?," they (tyrants, ignoramuses, etc.) would ask. "That right is nowhere in the Constitution," they would insist--as though that decided anything.
Well, well, well. Weren't the fears of Madison, Jay, Hamilton and others absolutely well-founded? We hear such nonsense against unmentioned rights all the time. We hear it even though the Bill of Rights includes the 9th Amendment which was supposed to ward off such nonsense. The "enumeration" of certain rights was not to "deny or disparage" others. The 9th Amendment could not be clearer on that point.
The liberal Justices (and liberal Senators and other liberals) usually scoff at the conservatives for "deny[ing] or disparag[ing]" rights which were left "unenumerated." Like the right to privacy. The right to bodily autonomy. The right to marriage. The right to be let alone. Etc., etc., etc. Of course those are basic, fundamental rights, the liberals insist, even if not specifically mentioned in the Constitution.
But with the individual right to have firearms, it's the liberals who are insisting that there's no such right because it's not in the 2d Amendment. Sorry, but the liberal Justices and Senators are fudging (to put it as kindly as possible again). Driven largely by ideological intransigence--no less so than the conservatives.
Oh, and while we're at it, let's not forget this. It's always been the conservative Justices (and conservative Senators) who have opposed nationalizing federal Constitutional rights. That is, opposed to making federal Constitutional rights protected against state governments as well as against the federal government. You know, the states rights argument against making the states honor federal Constitutional rights. The states rights argument against "incorporating" federal Constitutional rights into the 14th Amendment and, thereby, prohibiting the states from violating them.
Whether it be freedom of religion, press, or association; the right to a jury trial and an attorney, the right against double jeopardy, compulsory self-incrimination, double jeopardy or cruel and unusual punishment--it was the liberal Justices who argued in favor of protecting those rights against state violation by "incorporating" those rights into the terms "liberty" and "due process" of the 14th Amendment.
It was the conservative Justices who argued against such "incorporation." States should largely be free from federal oversight. States should largely be free to adopt and enforce federal Constitutional rights as they think best. And, of course, that damned liberal-activist Supreme Court should largely leave the States alone.
Again, well, well, well. Let's just forget about all that States rights stuff and about that damned liberal-activist Supreme Court. (Well, the "activist" part of "liberal-activist" anyway.) When it comes to the conservative Justices' favorite rights--e.g., gun rights, business rights, property rights--well, "incorporation" ain't such a bad thing after all. And, well, we never said States rights were absolute.
As for the liberal Justices, well States rights ain't always a bad thing. And sometimes, this "incorporation" stuff and these "unenumerated" rights just go too far. Yep, when dealing with rights like guns and business and property.
So regarding Kagan, and the Senators questioning her, wouldn't it have been valuable to hear what they know and understand and believe about "incorporation" and about "unenumerated" rights? Wouldn't we have learned much more than we did? Both about Kagan and about the Senators on the Judiciary Committee who questioned her. What Kagan thinks, and whether the Senators on the Committee have much of a clue.