How could four justices oppose the 2nd Amendment?

Posted 7/08/2008 07:23:00 AM

By Dan Foley

I was reading with much enjoyment the recent decision by the U.S. Supreme Court to uphold the Constitution with regard to the Second Amendment. But then my blood ran cold when it suddenly dawned on me that the case was only decided by a 5-4 margin. My mind quickly moved from enjoyment to complete and total fear -- fear that we actually have four justices who for some reason can find a way to limit my ownership of guns despite the clear language of the Bill of Rights.

It was also a wake-up call when I read comments from such a fine constitutional scholar as Justice John Paul Stevens. He wrote, “In my view, there is simply no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.”

What? How can any rational human being make such a statement, let alone a sitting U.S. Supreme Court justice? The Second Amendment -- written at a time when practically every home housed a gun – reads, “…the right of the people to keep and bear arms shall not be infringed.” It doesn’t say “it may,” or “let’s think about it.” It says “shall not.”

If the musings of Justice Stevens do not scare the average American into waking up and paying attention, what will? Today it is your gun. Tomorrow it may be your vote, or your home, or your life.

I know there will be some who will say I am being overly dramatic, but I believe it is that important. If we allow one branch of this government to do things that are immoral, illegal and wrong then what stops the next branch? Where is the American Civil Liberties Union now? The champion of American civil liberties is noticeably absent during this assault on civil liberties. Maybe it has a state senator somewhere to harass or a business to try to shut down instead of taking up this significant fight.

How can four educated lawyers appointed to protect the Constitution come up with such a stupid dissent? The answer, I believe, is quite simple. They are individuals who value an ideology over the very document that makes this country great, the Constitution. It is obvious from these four that they either have never read the Second Amendment, which would worry me, or they have read it and are willfully and knowingly trying to force their ideology into every word in it. I pray it is the first reason. I know it can’t be, but the thought that it is the second is just too scary to dwell on.

I have to point out Justice Antonin Scalia’s majority opinion, especially the part in which he refers to Justice John Paul Stevens’ remarks:

“Giving ‘bear Arms’ its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war -- an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase ‘keep and bear Arms’ would be incoherent. The word ‘Arms’ would have two different meanings at once: ‘weapons’ (as the object of ‘keep’) and (as the object of ‘bear’) one-half of an idiom. It would be rather like saying ‘He filled and kicked the bucket’ to mean ‘He filled the bucket and died.’ Grotesque.”

Stevens needs to step down or be impeached

In his inimitable way, Scalia makes it clear to everyone in America that Justice Stevens has no idea what is going on. It is obvious he has served way past his ability to reason through or perhaps even to understand these kinds of issues. While not everyone by any means is mentally impaired at 80, unfortunately some in that age category are beginning to slip, and Justice Stevens’ health has been the issue of many discussions in legal circles for several years.

As an ardent admirer of such great thinkers as Milton Friedman, who was brilliant until his death at 94, normally I would not think about a person’s age in this setting. However, with Stevens’ rambling, incoherent and illogical dissenting opinion in this case -- and with it being thoroughly and embarrassingly shredded by Scalia -- I have to believe it is time for him to step down.

On second thought, since some members of the U.S. House of Representatives seem constantly bent on impeaching someone, maybe they should step in and remove Stevens. At least they would have obvious grounds.

Something has to be done, if not by the U.S. House of Representatives that serves today then by each and every American. This decision should be as troubling for those who support the Second Amendment as it is for those who oppose it. If there are actually four Supreme Court justices who fail to understand what the Second Amendment says, then maybe in a few years there will be five who fail to understand the equal-protection clause or the right to a speedy trial or, who knows, maybe one man, one vote.

Foley is the outgoing minority whip in the New Mexico House of Representatives and a Republican from Chaves County.