All:
Mr. Blum certainly is vocal in his protest!
Richard
On 6/23/2016 2:29 PM, Miriam Vieni wrote:
Antonin Scalia and the Clear and Present Danger of Second Amendment
Fundamentalism
http://www.truthdig.com/report/item/antonin_scalia_and_danger_of_second_amen
dment_fundamentalism_20160622/
Posted on Jun 22, 2016
By Bill Blum
Antonin Scalia, a Supreme Court justice from 1986 until his death in
February, brought an incendiary temperament to the bench. (YouTube)
A well regulated Militia, being necessary to the security of a free State,
the right of the People to keep and bear Arms, shall not be infringed.
-Second Amendment to the Constitution of the United States.
If you're looking for someone to blame for the continuing partisan paralysis
on gun control after the Orlando bloodbath, I have a candidate for your
consideration. And no, it's not congressional Republicans, or the National
Rifle Association, although their fingerprints are all over the country's
inaction in the face of our unyielding epidemic of gun violence.
My nominee is the late Supreme Court Justice Antonin Scalia.
Scalia, who died in his sleep in February while on a hunting trip in Texas,
gets my nod as the author of the 5-4 majority opinion in the landmark 2008
decision, District of Columbia v. Heller, which held for the first time that
the Second Amendment protects an individual right to bear arms.
Now, of course, I'm not saying that Scalia was in any way directly
responsible for the murderous rampage of the Orlando shooter, Omar Mateen,
or the perpetrators of the other mass shootings that have ravaged American
communities over the past three decades, or even for the lunacy of the
gun-waving, Constitution-thumping Cliven Bundy clan and other proponents of
the "sovereign citizen" movement.
But on an array of issues ranging from gay rights to gun rights, Scalia
brought an incendiary temperament to the bench, and the rhetorical style of
a fuming political activist that inspired an almost worshipful devotion from
his admirers and discouraged civility, reasoned discourse and, ultimately,
respect for law.
Beginning with his appointment to the high court in 1986, Scalia was the
intellectual leader of what I and many other legal commentators have termed
a conservative "judicial counterrevolution," aimed at wresting control of
the nation's most powerful legal body from the legacy of the liberal jurists
who rose to power in the 1950s and '60s under the leadership of then-Chief
Justice Earl Warren.
Scalia was also a key architect of the jurisprudential theory of original
intent-the idea that judges should interpret the Constitution according to
the intent of the framers and the purported "original public meaning" of the
terminology used in the Constitution.
Heller was his crowning glory. In it, he delved selectively into the
archives of colonial history and the early years of the republic to conclude
that the framers of the Second Amendment actually intended to protect purely
personal gun ownership rights. In doing so, he broke with the great weight
of prior scholarship and court opinions, including the Supreme Court's 1939
decision in United States v. Miller, which had held the amendment protected
private gun ownership only in connection with service in long-since
antiquated state militia.
Although Heller was technically limited to gun ownership in the nation's
capital and other federal venues, the court extended its individual-rights
analysis to the states two years later in the case of McDonald v. Chicago, a
5-4 ruling authored by Justice Samuel Alito, with Scalia concurring-and
doubtless lending a guiding hand. Together, the decisions elevated gun
ownership in America to the status of a basic national right, alongside free
speech, the privilege against self-incrimination, equal protection, due
process and other constitutional bulwarks.
In fairness to Scalia, his Heller opinion did not foreclose new gun-control
legislation or directly threaten most measures already on the books. In
fact, he wrote that the Second Amendment, like all other constitutional
rights, is subject to "reasonable regulation."
But when you hear Republican politicians like Sens. John McCain, Tom Cotton,
Marco Rubio and Mitch McConnell, or the National Rifle Association's
loud-mouthed executive vice president, Wayne LaPierre, explain why they
oppose even the most modest of new federal reforms, they inevitably invoke
an ideology of Second Amendment fundamentalism animated by Scalia and
Heller.
Like its religious counterpart, gun-rights fundamentalism views society
through a simplistic filter, populated, in LaPierre's nauseating
catchphrase, by "good guys" and "bad guys." The armed citizenry is
mythologized and lionized. Government regulation-especially at the federal
level-is met with suspicion, paranoia, fear and, whenever possible,
rejection.
To be sure, there are important economic factors that also undergird the
largely Republican opposition to gun control. The NRA's campaign
contributions, lobbying and ad budget are enormous, and its determination to
defeat hostile candidates at the polls is legendary.
But it is the fundamentalist ideology that gives the gun-rights camp
respectable public cover in the face of one mass shooting after another, and
which, thanks to Scalia, endows it with the imprimatur of constitutional
law.
It would be one thing if Scalia had gotten the historical analysis of the
Second Amendment correct in Heller. But the tragic fact is that he got it so
thoroughly wrong.
As former Justice John Paul Stevens noted in his lengthy dissenting opinion
in Heller, Scalia's exegesis not only rendered the opening "militia clause"
of the Second Amendment meaningless, but he also distorted and underplayed
the importance of the actual debates conducted during the founding era on
the amendment's purpose and meaning. Those debates, Stevens forcefully
argued, focused not on personal gun ownership but on the state militia,
which the founders viewed as an antidote to a burdensome and potentially
oppressive permanent standing federal army. The militia were seen as the
best means for "providing for the security of a free State" against popular
insurrections like Shay's rebellion, the anti-tax uprising of Massachusetts
farmers of 1786-87 that exposed the weaknesses of the fledgling national
government as constructed under the Articles of Confederation.
In the end, the Second Amendment was worded as a federalist compromise, with
the states retaining their right to organize militia and other provisions of
the Constitution (for example, Article II, Section 2), clarifying that
ultimate control over the militia would vest in the executive branch of the
federal government. Personal gun ownership rights were left, as they had
been during the colonial period, to the police powers of local government.
Following Heller, Scalia's scholarship was widely panned by respected
historians such as Jack Rakove of Stanford University for its "faulty
rethinking of the Second Amendment" and Saul Cornell of Fordham University
for being "a constitutional scam" and "an intellectual shell game in which
contemporary political preferences are shuffled around and made to appear
part of the Constitution's original meaning."
That Scalia got it so wrong matters not just to students of constitutional
law, but also to everyday people who want to prevent the next Mateen or
Dylan Roof from getting their hands on easily acquired firearms.
Although Maine Sen. Susan Collins, a Republican, has introduced a
still-pending bill that would prevent those on the government's "no-fly"
list from buying guns, no new federal gun-control legislation has been
passed by both houses of Congress since Heller. And since McDonald, the
Supreme Court has refused to hear another Second Amendment case, in which
Heller's analysis might be reversed or narrowed.
Instead, we have a patchwork system in which some states, such as
Connecticut, California and New York, have adopted tough restrictions on
semi-automatic weapons and the issuance of concealed- and open-carry gun
permits, while many others, including Texas and Florida, make it possible to
obtain AR-15s in less than 10 minutes.
So if you're looking for someone to blame for our collective impotence in
response to the madness of gun violence in America, by all means point an
accusing finger in the direction of Congress and the NRA. But don't forget
to include the departed Antonin Scalia, who gave gun rights the blessing of
the Constitution and the highest court in the land.
http://www.truthdig.com/ http://www.truthdig.com/
Antonin Scalia and the Clear and Present Danger of Second Amendment
Fundamentalism
http://www.truthdig.com/report/item/antonin_scalia_and_danger_of_second_amen
dment_fundamentalism_20160622/
AddThis Sharing ButtonsShare to FacebookShare to TwitterMore AddThis Share
optionsShare to Email
Posted on Jun 22, 2016
By Bill Blum
Antonin Scalia, a Supreme Court justice from 1986 until his death in
February, brought an incendiary temperament to the bench. (YouTube)
A well regulated Militia, being necessary to the security of a free State,
the right of the People to keep and bear Arms, shall not be infringed.
-Second Amendment to the Constitution of the United States.
If you're looking for someone to blame for the continuing partisan paralysis
on gun control after the Orlando bloodbath, I have a candidate for your
consideration. And no, it's not congressional Republicans, or the National
Rifle Association, although their fingerprints are all over the country's
inaction in the face of our unyielding epidemic of gun violence.
My nominee is the late Supreme Court Justice Antonin Scalia.
Scalia, who died in his sleep in February while on a hunting trip in Texas,
gets my nod as the author of the 5-4 majority opinion in the landmark 2008
decision, District of Columbia v. Heller, which held for the first time that
the Second Amendment protects an individual right to bear arms.
Now, of course, I'm not saying that Scalia was in any way directly
responsible for the murderous rampage of the Orlando shooter, Omar Mateen,
or the perpetrators of the other mass shootings that have ravaged American
communities over the past three decades, or even for the lunacy of the
gun-waving, Constitution-thumping Cliven Bundy clan and other proponents of
the "sovereign citizen" movement.
But on an array of issues ranging from gay rights to gun rights, Scalia
brought an incendiary temperament to the bench, and the rhetorical style of
a fuming political activist that inspired an almost worshipful devotion from
his admirers and discouraged civility, reasoned discourse and, ultimately,
respect for law.
Beginning with his appointment to the high court in 1986, Scalia was the
intellectual leader of what I and many other legal commentators have termed
a conservative "judicial counterrevolution," aimed at wresting control of
the nation's most powerful legal body from the legacy of the liberal jurists
who rose to power in the 1950s and '60s under the leadership of then-Chief
Justice Earl Warren.
Scalia was also a key architect of the jurisprudential theory of original
intent-the idea that judges should interpret the Constitution according to
the intent of the framers and the purported "original public meaning" of the
terminology used in the Constitution.
Heller was his crowning glory. In it, he delved selectively into the
archives of colonial history and the early years of the republic to conclude
that the framers of the Second Amendment actually intended to protect purely
personal gun ownership rights. In doing so, he broke with the great weight
of prior scholarship and court opinions, including the Supreme Court's 1939
decision in United States v. Miller, which had held the amendment protected
private gun ownership only in connection with service in long-since
antiquated state militia.
Although Heller was technically limited to gun ownership in the nation's
capital and other federal venues, the court extended its individual-rights
analysis to the states two years later in the case of McDonald v. Chicago, a
5-4 ruling authored by Justice Samuel Alito, with Scalia concurring-and
doubtless lending a guiding hand. Together, the decisions elevated gun
ownership in America to the status of a basic national right, alongside free
speech, the privilege against self-incrimination, equal protection, due
process and other constitutional bulwarks.
In fairness to Scalia, his Heller opinion did not foreclose new gun-control
legislation or directly threaten most measures already on the books. In
fact, he wrote that the Second Amendment, like all other constitutional
rights, is subject to "reasonable regulation."
But when you hear Republican politicians like Sens. John McCain, Tom Cotton,
Marco Rubio and Mitch McConnell, or the National Rifle Association's
loud-mouthed executive vice president, Wayne LaPierre, explain why they
oppose even the most modest of new federal reforms, they inevitably invoke
an ideology of Second Amendment fundamentalism animated by Scalia and
Heller.
Like its religious counterpart, gun-rights fundamentalism views society
through a simplistic filter, populated, in LaPierre's nauseating
catchphrase, by "good guys" and "bad guys." The armed citizenry is
mythologized and lionized. Government regulation-especially at the federal
level-is met with suspicion, paranoia, fear and, whenever possible,
rejection.
To be sure, there are important economic factors that also undergird the
largely Republican opposition to gun control. The NRA's campaign
contributions, lobbying and ad budget are enormous, and its determination to
defeat hostile candidates at the polls is legendary.
But it is the fundamentalist ideology that gives the gun-rights camp
respectable public cover in the face of one mass shooting after another, and
which, thanks to Scalia, endows it with the imprimatur of constitutional
law.
It would be one thing if Scalia had gotten the historical analysis of the
Second Amendment correct in Heller. But the tragic fact is that he got it so
thoroughly wrong.
As former Justice John Paul Stevens noted in his lengthy dissenting opinion
in Heller, Scalia's exegesis not only rendered the opening "militia clause"
of the Second Amendment meaningless, but he also distorted and underplayed
the importance of the actual debates conducted during the founding era on
the amendment's purpose and meaning. Those debates, Stevens forcefully
argued, focused not on personal gun ownership but on the state militia,
which the founders viewed as an antidote to a burdensome and potentially
oppressive permanent standing federal army. The militia were seen as the
best means for "providing for the security of a free State" against popular
insurrections like Shay's rebellion, the anti-tax uprising of Massachusetts
farmers of 1786-87 that exposed the weaknesses of the fledgling national
government as constructed under the Articles of Confederation.
In the end, the Second Amendment was worded as a federalist compromise, with
the states retaining their right to organize militia and other provisions of
the Constitution (for example, Article II, Section 2), clarifying that
ultimate control over the militia would vest in the executive branch of the
federal government. Personal gun ownership rights were left, as they had
been during the colonial period, to the police powers of local government.
Following Heller, Scalia's scholarship was widely panned by respected
historians such as Jack Rakove of Stanford University for its "faulty
rethinking of the Second Amendment" and Saul Cornell of Fordham University
for being "a constitutional scam" and "an intellectual shell game in which
contemporary political preferences are shuffled around and made to appear
part of the Constitution's original meaning."
That Scalia got it so wrong matters not just to students of constitutional
law, but also to everyday people who want to prevent the next Mateen or
Dylan Roof from getting their hands on easily acquired firearms.
Although Maine Sen. Susan Collins, a Republican, has introduced a
still-pending bill that would prevent those on the government's "no-fly"
list from buying guns, no new federal gun-control legislation has been
passed by both houses of Congress since Heller. And since McDonald, the
Supreme Court has refused to hear another Second Amendment case, in which
Heller's analysis might be reversed or narrowed.
Instead, we have a patchwork system in which some states, such as
Connecticut, California and New York, have adopted tough restrictions on
semi-automatic weapons and the issuance of concealed- and open-carry gun
permits, while many others, including Texas and Florida, make it possible to
obtain AR-15s in less than 10 minutes.
So if you're looking for someone to blame for our collective impotence in
response to the madness of gun violence in America, by all means point an
accusing finger in the direction of Congress and the NRA. But don't forget
to include the departed Antonin Scalia, who gave gun rights the blessing of
the Constitution and the highest court in the land.
http://www.truthdig.com/report/item/supreme_courts_male_justices_violate_fou
rth_amendment_20160623/
http://www.truthdig.com/report/item/supreme_courts_male_justices_violate_fou
rth_amendment_20160623/
http://www.truthdig.com/report/item/supreme_courts_male_justices_violate_fou
rth_amendment_20160623/
http://www.truthdig.com/avbooth/item/live_at_truthdig_has_the_media_been_bia
sed_in_its_coverage_20160623/
http://www.truthdig.com/avbooth/item/live_at_truthdig_has_the_media_been_bia
sed_in_its_coverage_20160623/
http://www.truthdig.com/avbooth/item/live_at_truthdig_has_the_media_been_bia
sed_in_its_coverage_20160623/
http://www.truthdig.com/arts_culture/item/redefining_success_in_the_age_of_d
onald_trump_20160623/
http://www.truthdig.com/arts_culture/item/redefining_success_in_the_age_of_d
onald_trump_20160623/
http://www.truthdig.com/arts_culture/item/redefining_success_in_the_age_of_d
onald_trump_20160623/
http://www.truthdig.com/eartotheground/item/us_supreme_court_upholds_affirma
tive_action_at_university_of_texas_201606/
http://www.truthdig.com/eartotheground/item/us_supreme_court_upholds_affirma
tive_action_at_university_of_texas_201606/
http://www.truthdig.com/eartotheground/item/us_supreme_court_upholds_affirma
tive_action_at_university_of_texas_201606/ http://www.truthdig.com/
http://www.truthdig.com/
http://www.truthdig.com/about/http://www.truthdig.com/contact/http://www.tru
thdig.com/about/advertising/http://www.truthdig.com/user_agreement/http://ww
w.truthdig.com/privacy_policy/http://www.truthdig.com/about/comment_policy/
C 2016 Truthdig, LLC. All rights reserved.
http://www.hopstudios.com/
http://support.truthdig.com/signup_page/subscribe
http://support.truthdig.com/signup_page/subscribe
http://www.facebook.com/truthdighttp://twitter.com/intent/follow?source=foll
owbutton&variant=1.0&screen_name=truthdighttps://plus.google.com/+truthdight
tp://www.linkedin.com/company/truthdighttp://truthdig.tumblr.com/http://www.
truthdig.com/connect
