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Two courts, one 'sin'

October 22, 2008

In the 1960s, when conservative legal scholars railed about an overreaching, activist Supreme Court, it was the Miranda ruling they denounced, along with its author, Republican Chief Justice Earl Warren. In the 1970s -- and '80s and '90s -- those critics directed their firepower at Roe vs. Wade and its author, Republican Justice Harry Blackmun. Now the complaint arises again. The target this time is none other than the current court's preeminent originalist, Republican Justice Antonin Scalia, and his opinion sanctioning individual gun ownership rights in District of Columbia vs. Heller.

As noted by the New York Times, two eminent conservative judges, Richard Posner and J. Harvie Wilkinson III, recently have written to denounce the reasoning in Scalia's controversial opinion and to accuse him of engaging not only in sloppy historical research -- Posner calls it proof that the court can succumb to "snow jobs" -- but also of precisely the type of activism that so offends Scalia. "Heller," Wilkinson writes for an upcoming issue of the Virginia Law Review, "encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts." Then Wilkinson delivers the lethal thrust: The courts that decided Roe and Heller, he says, are "guilty of the same sins."

That conclusion is pretty much guaranteed to infuriate Scalia, and that's welcome by itself. What's more enlightening about these critiques, however, is that they demonstrate that there are no real originalists, only activists of different stripes. And that's OK. It is essential to recognize that one original intent of the Constitution's framers was to create an elastic document, adjustable for the ages. So the task for the court is not to determine whether the framers kept rifles under their beds but whether owning a gun today serves the social function the Constitution created for it, namely, the preservation of militias. Led by Scalia, a majority of the court agreed that the Constitution protects the right of "the people" to keep and bear arms, though not all people and not all arms -- it specifically declined to overrule state laws that keep felons or the mentally ill from buying guns, as well as laws against owning machine guns, which seem well-suited for militias but which Scalia doesn't like.

Miranda is rightly thought of as the work of an activist court -- its warnings to suspects are not to be found anywhere in the Constitution. The Constitution is similarly silent on the significance of trimesters in considering the right of the government to make decisions about a woman's body. Those rulings nevertheless have settled well into our lives -- they provide clarity for police and protection for women. It's too soon to say whether Heller will wear as well. What is clear is that it springs from the same judicial impulse, whether Scalia likes to admit it or not.

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