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Guns, Democracy and the Supreme Court | The Nation

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Diary of a Mad Law Professor

Guns, Democracy and the Supreme Court

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As President Obama begins his second term, our hopes and expectations are shadowed by shooting tragedies whose nadir was reached with the deaths of so many children in Newtown, Connecticut. If these events have reinvigorated a conversation about gun regulation and access to mental health treatment, they must also ignite a discussion of political and constitutional values. Without the latter, the former will never come to pass.

About the Author

Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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Part of the problem is that our governance bodies are divided along such extreme ideological lines that any good theories on guns or healthcare are unlikely to come from them. When Mitt Romney said that 47 percent of Americans “believe the government has a responsibility to care for them…believe that they are entitled to healthcare, to food, to housing, to you name it,” he summed up the congressional divide, as well as the sentiments of conservative Supreme Court justices who would like to do away with most of the entitlement programs of the twentieth century, as well as the Environmental Protection Agency, the departments of Education and Health and Human Services, and Social Security. In National Federation of Independent Business v. Sebelius (the ruling upholding parts of the Affordable Care Act), Scalia, Thomas, Kennedy and Alito dismissed such departments as “devoted to subjects not mentioned among Congress’ enumerated powers, and only marginally related to commerce.” 

We forget at our peril how recent a phenomenon this brand of anti-government rhetoric is: only in the last few decades have freedom and liberty been re-imagined as enshrining such a hyper-individualized notion of economic self-interest. Senator George Hoar put it this way in 1871: “The question is not whether a majority of the people in a majority of the States are likely to be attached to and able to secure their own liberties…. It is whether a majority of the people in every State are sure to be so attached to the principles of civil freedom and civil justice as to be as much desirous of preserving the liberties of others as their own.”

As recently as 2008, Justice Scalia penned the opinion, in District of Columbia v. Heller, that upended two centuries of jurisprudence to hold that the Second Amendment grants an absolute right to individuals—rather than state militias—to keep and bear arms. If, moreover, the Centers for Disease Control or other federal agencies can’t gain access to data about guns and violence because the NRA insists that gun ownership falls within a “privacy” interest, then we avoid hard questions about how access to guns inflects bullying, suicide or domestic abuse, and we are doomed forever to airy discussions about video games. And if Jared Lee Loughner and James Holmes, both of whom suffered from undiagnosed schizophrenia, are treated by our criminal justice system as rational actors rather than as wake-up calls about the urgent need for improving our public health system, then we ensure that  history will repeat itself. As Jeffrey Toobin observed in The New Yorker, “The full meaning of the court’s Heller opinion is still up for grabs. But it is clear that the scope of the Second Amendment will be determined as much by politics as by the law.”

Stanford law professor Pamela Karlan assessed the Roberts Court’s dramatic shift in constitutional values in a recent article titled “Democracy and Disdain.” The “disdain” to which she refers is the justices’ seeming suspicion of what the great John Hart Ely once described as a “participation-oriented, representation-reinforcing approach to judicial review.” Conservatives on the Court, Karlan says, have coalesced around three troubling positions: First, the protection of “spenders” (as in Citizens United) rather than the underrepresented. Second, suspicion of Congress even when it acts by bipartisan majorities and proper democratic processes—as when Justice Roberts worried that the Affordable Care Act might allow Congress to make us eat our veggies, “extending the sphere of its activity and drawing all power into its impetuous vortex,” quoting The Federalist Papers. Third, and as a consequence of that suspicion, the undermining the enforcement of major legislation—as when Roberts, Scalia, Thomas and Alito declared that healthcare coverage has nothing to do with interstate commerce (the Commerce Clause being the legal tether for all public accommodation laws—laws that protect the environment, women’s equality, health, education, disability rights, etc.). If the exorbitant expense and human loss incurred by lack of healthcare doesn’t affect commerce, it’s hard to imagine what would. Indeed, the next Supreme Court case that takes this up directly could, if the balance shifts by a single vote, undo much of the jurisprudential grounding for all civil rights, environmental and health and safety laws. Ultimately, says Karlan, “when a robust version of judicial interpretive supremacy is combined with a narrow construction of key enumerated powers, there is a serious danger that the Court will disable the government from addressing critical national problems.”

So it is, given the fits and fissures of the Roberts Court—to say nothing of our Tea Partying Congress—that there has been an upending of the traditional meaning of justice and of our Bill of Rights. If we are ever to enact effective legislation to control weapons possession, we will have to reckon with Congress’s as well as the Court’s general genuflection to “spenders”—or monied lobbies like the NRA. And if we are ever to deal with the complex question of culture, violence and mental health, we will have to insist that the departments and agencies the Roberts Court seems so intent on gutting be recognized for the role they play in protecting our commonweal, and in grounding public knowledge in independent, empirical and well-researched data.

If we fail to reinvigorate the values of mutually regarding political exchange and jurisprudence, we abandon the antidotes to a lethal distrust that is tearing us apart. Guns are simply the most deadly cipher for a nation that makes war upon itself.

Columnist Gary Younge recently explained why red-state secessonist movements should be careful what they wish for (Dec. 17).

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