Judicial activism, left and right

 On Thursday and Friday the Supreme Court handed down two momentous decisions by 6-3 majorities, overturning New York state's venerable Sullivan Law (referred to by name in the film On the Waterfront) and then Roe V. Wade.  Clarence Thomas wrote the gun law majority decision and concurred, adding some broader remarks about "substantive due process," in the second.  I made clear months ago when the Alito opinion leaked that I do not think that his position--that the Constitution cannot be read as conferring a right to abortion--is without merit, and that the nation would be better off if abortion issues had been left to the political process within states, where it has now landed once again after 50 years of continuous organization and agitation.  I also believe that if in fact the right to abortion (which I support) is an overwhelmingly obvious necessity, as so many on the left believe, that the political process will ultimately protect it now.  Opinion may shift in red states when the decision's consequences become clear.  Yet I was preparing to write about the first decision--and Justice Thomas's opinion, like the Scalia opinion in Heller upon which it is based, is at least as flagrant a case of judicial overreach as Roe v. Wade is held to have been.  It reveals the doctrine of "originalism" as a total fraud.

I blogged about Heller fourteen years ago here.  I will begin today where I began then. Anyone who takes the few seconds necessary to read the Second Amendment--"A well-regulated militia being necessary to the security of a free state, the right to keep and bear arms shall not be infringed"--has to concede, it seems to me, that that amendment as written has been a dead letter for many decades.  The founders opposed standing armies and therefore limited federal appropriations for military forces to two years, and the colonies had always relied on militias to deal with hostile Indians and outbreaks of lawlessness. They also viewed them as guarantees against a tyrannical government.  While the militia tradition survives in our National Guard, we do not rely upon it for the same purposes, and it does not ask its members to provide their own weapons.  We rely on permanent forces to defend against invasion and police forces to stop crime.  Even Justice Scalia had to admit in his Heller opinion that no one kept up-to-date military weapons in their home.  Such weapons, by the way, play no role at all in the New York state case, which involved handguns.

Essentially, and for reasons known only to himself, Justice Scalia decided to find a right to personal self-defense in the Constitution, one that would allow citizens to keep handguns in their homes.  As I pointed out at the time,  he could not find a sufficient precedent to make his case.  He found that some states in the early Republic recognized a right to personal self-defense, but others did not.  In the same way that I would argue that the Constitution itself did not establish a personal right to own slaves--since many new states were abolishing slavery--it seems clear that the Constitution did not enshrine a self-defense right that some states refused to recognize either.  Each state had the right to make this decision for itself.  As I wrote in 2008, he reached the bizarre conclusion that since some states recognized this right, all of them must have believed in it.  The original blog explores this points at much greater length, and I recommend it to anyone who is interested.  Such an argument exposes conservative originalism as a fraud.  Scalia didn't base his argument on the language of the Second Amendment (he obviously couldn't) or on a fair reading of other evidence: he based it on faith in what the founders must have believed.  That is no more of a stretch than the discovery of a right to privacy in the Constitution.

Thomas's majority opinion in New York State Rifle & Pistol Association et al vs. Bruen retrace's Scalia's steps without paying any attention to the weaknesses of his argument.  He simply accepts Heller--a 5-4 decision by the way--as gospel.  The Sullivan Law required those wishing to carry guns to demonstrate a valid, specific risk that required them to do so, not simply a general need for self-defense.  The New York legislature in the early twentieth century apparently accepted the idea that law enforcement was the business of professionals. Thomas denies its right to take away the supposed "right" of all citizens to bear arms to defend themselves.  

In a very lengthy historical survey, Thomas has to admit that many states, in different eras, have imposed restrictions on the carrying of weapons, and especially on the carrying of concealed weapons. He also has to admit that both Texas and West Virginia passed laws very similar to the Sullivan Law in the late nineteenth century, requiring that anyone who wanted to go about armed have an important particular reason for doing so. He also admits that, as I mentioned recently, various western jurisdictions banned all firearms from towns in the same era.  But he insists on regarding all these laws as "outliers," rather than as reasonable attempts to maintain law and order, and thus without any value as precedents.   And he makes no attempt to compile a list of similar laws in the early twentieth century when the Sullivan law itself was passed.

Obviously many states at different times in our history believed that that law allowed them to ban the carrying of guns, and that the Constitution allowed them to do so.  It is not the language of the Second Amendment that leads Thomas to disregard them as precedents, but rather his and Scalia's determination to find a right in the Constitution that was never stated--exactly what he faults Justice Blackmun for doing in Roe v. Wade.   Of the two decisions, I am actually more disturbed by the New York one.  Dobbs leaves it to the states to decide whether to allow abortions, while the gun case takes the freedom to decide whether to allow the carrying of handguns in public away from the states.  Unlike Dobbs, it lays down a new law--and in my opinion a disastrous one--which we must all obey.  Justice Thomas has given up any right to complain about judicial overreach on the other side of the constitutional aisle.