To: Richard Daley, Mayor, Chicago

From: Mitch Berg, occasional visitor.

Re: Hahahaha

Dear Mayor Daley,

As you and your minions dig in to fight against the rule of law in the McDonald case (scheduled to go before the Supreme Court on March 2), just thought you’d like to check out a little bit of foreshadowing, courtesy of Justice Scalia in the Heller decision. I call it “foreshadowing” because I’m gonna guess it covers the tack you and your lawyers are going to try to take (I’ll add some emphasis for the benefit of your “community organizers):

Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.    We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.

I’m no lawyer, but to the best of my knowledge the key use of “interest-balanced” enquiry was to distinguish slaves from free men.  (I could be wrong).

The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

To translate it for your lawyers, Mayor Daley:  Really really really wanting to keep black people disarmed doesn’t count as a constitutional governmental power.

And in conclusion:

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.

We affirm the judgment of the Court of Appeals.

I doubt the Supremes have the power to order you to be chased from office with a rock-and-garbage-throwing mob, but it’d seem just.

Arguments on March 2.  Decision sometime in June. I may take a vacation day; who knows, I might even go to Chicago.

That is all.

This entry was posted by by Mitch Berg on Friday, December 4th, 2009 at 8:43 am and is filed under SCOTUS, Victim Disarmament. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.