Saturday, November 24, 2007

Gunfight in the SCOTUS corral

Looks like Roberts is moving (relatively) fast on bringing a Second Amendment handguns case to the fore. He said the issue was unsettled during confirmation hearings, and he apparently intends to settle it. Could we save some time here and just jump to the 5-4 decision in favor of handgun ownership by individuals?

Not really. Scalia, Alito and Thomas will fall in the "for" bucket, while Ginsburg and Breyer are the likely "ginnits." That leaves Stevens, Souter and Kennedy, plus the Chief Justice, up in the air.

Moonspeak being the fine art it is, one would likely predict at least four separate opinions on this one, leaving the issue finely drawn and completely undecided. But no one who saw the flinty glint of triumph in Roberts' eye the hour he was sworn in can think the Chief Justice will let his colleagues off the hook on this one. Gutless, Roberts ain't, so he's not going to touch a Second Amendment case without making his separate-but-coequal branch of government's decision historic.

The problem is, the language and context of the Second Amendment clearly favor putting handguns (and any weapon whatever) into the hands of individuals. The devil in the details of implementing that abstraction is breathtakingly unacceptable (hence the Brady bill).

On the other hand, the absolute terror of armed factions is that they spawn their own opposition and everybody then buys arms from third parties — most recently, both Israel and Ireland from the U.S., courtesy of individuals.

In other words, the hellish worldviews the Second Amendment seeks to prevent make their own argument. The bogeymen are compelling: Iraq, Afghanistan, Chechnya, Cambodia.

In this world, I think the decision will be at least 7-2 in favor of individual ownership, and might actually be unanimous.

Personally, for all that, I think the Second Amendment should be repealed outright. It's archaic and cumbersome, and cannot affect the outcome of any armed insurgency. It can't confer legitimacy to the winning side, which may include a Robespierre. It can't prevent retaliation against the holiest of losers, who may include among their ranks a Joan of Arc. The Second Amendment is mischievous nonsense.

The point of War, after all, is to decide what the law is when the courts and all other recourses have failed. It is by its very nature, despite all pretenses, extralegal. In that arena, the Second Amendment is no more pious than any hopeful utterance, and has no jurisdiction.



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