Roe and Heller, They Go Together

Roe and Heller, They Go Together June 27, 2008

One issue in yesterday’s post on gun control that provoked a vigorous response was my contention that Roe and Heller were decided with the same underlying philosophy that emphasizes the right to individual liberty as long as it does not impinge upon the equally valid rights of another citizen. This is a very different philosophy of from that of Aquinas, where law is deemed an ordinance of reason for the common good made by him who has care of the community.

I stand by my contention. The counter argument essentially says that my argument is flawed in that Heller merely interprets the constitution, whereas Roe manufactures an entirely new “right” with no basis in the document. Moreover, since the justices who support Roe dissent on Heller, and vice versa, there couldn’t possibly be a connection.

This reasoning is flawed. To claim that Scalia’s decision was a simply technical interpretation of a document that left no room for his personal views and philosophy is simply not credible. The current case boils down to the interpretation of a few words in a document. Those who believe in the private ownership of guns claim the second amendment to be an individual right, while those opposed argue it in collective terms. In his dissent, Justice Stevens took the latter position, calling the decision “a strained and unpersuasive reading” and noting that the right to own a weapon exists only “in conjunction with service in a well-regulated militia”. The decision therefore constituted “a dramatic upheaval in the law.”

And how does Scalia respond? That is the interesting part. He claimed that “the operative clause codified a pre-existing right of individual gun ownership for private use.” So what Scalia is really doing is appealing to the Enlightenment-era doctrine of personal liberty as the foundation of law. This is what he dresses up as “orginalism.”

We see this philosophy elsewhere. The Pre-New Deal Supreme Court was heavily influenced by laissez-faire constitutionalism, whereby any attempt at economic regulation was derided as an attack on the right to free exchange. And yes, this also underpins Roe, with its emphasis on the “right to privacy”– it is simply taking the judicial philosophy of personal liberty to its logical and extreme conclusion. In all cases, the common good is ignored.

Even within the limits of a written constitution, there is scope for interpretation that accords better with a Thomist interpretation of law. Much of the pre-New Deal reasoning has been cast aside. Roe itself can (and should) be reversed. And Heller could have been decided by the jurisprudence of Stevens, not Scalia. The positive law must reflect the natural law, an order of reason based on the common good, and judges do not get a dispensation from the moral law. Anything else is to take God out of the equation– which was a key theme of the Enlightenment, after all.

So why should Roe be overturned? If you say it is because the original framers did not think privacy encompassed abortion, that is the wrong answer. For what if they had? They certainly tolerated many things we do not today, and were heavily influenced by Enlightenment-era thinking– a philosophy I have argued is deeply flawed. No, the correct answer is that the right to abortion is not a right at all, and can never be regarded as a right, for the natural law is superior and antecedent to all positive law, including the US constitution. If a written constitution is to be of service, the “rights” it espouses must be constantly interpreted, in each generation and in response to unique challenges, in light of the natural law and the common good. Mistakes will be made along the way. But the alternative, based on a sola scriptura premise, can lead down the wrong road.

Presently, whatever else they claim, judges decide based on personal ideological attractions, which just happens to match the current political cleavage in American society. Judicial activism depends on one’s perspective (relativism!). As they did in Roe, this Supreme Court majority is simply reflecting the political opinion of its own ideology. EJ Dionne derides their “willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political right.” The same accusation could have been made in 1973. What Dionne does not say is that Scalia and Blackmun were arguing from quite similar philosophies– the primacy of individual liberty.

One final point. DC’s mayor Adrian Fenty claimed that the “more handguns in the District of Columbia will only lead to more handgun violence.” He is supported by local law enforcement. Fenty is the man charged with care of the local community, and he has quite rightly sees the gun ban as a component of the common good. But this does not concern Scalia. In the Guantanamo decision, Scalia hissed that it would “almost certainly cause more Americans to be killed.” That doesn’t bother him here. Yet more evidence of a flawed and inconsistent judicial philosophy.

Addendum: Legal scholar Jack Balkin notes the following:

“Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans’ minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.”

Exactly. Let us please leave the original purity arguments at home. This was a reflection of the re-emergence of laissez-faire liberalism after the so-called Reagan revolution. Same philosophy that guided Roe, whether they realize it or not.

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  • T. Shaw

    Apples and oranges. If the court interpreted the Second Amendment they way they did in 1973 the nonexistent right to unborn baby murder, they’d have ordered the guv’ment to issue each of us a machine gun.

    M. Malkin is a prophet. Yesterday, she posted the following:

    “Prediction: Unlike the 5-4 Boumediene vs. Bush decision [the Gitmo case], which the MSM hailed as “landmark” [and] “historic” because it rebuked Bush, this 5-4 decision will be spun as a decision by the “conservative” Supreme Court, which was “controversial,” “fractured” or “splintered.” Anything to cast doubt on the decision.

    “Landmark-Historic:” Any decision the court makes that the media likes.

    “Controversial-Splintered:” Any decision the liberal media hates.”

    You savants are consistent. And, you aren’t secular liberals or progressives. No. You just agree 100% with secular liberals and progressives.

  • TeutonicTim

    There is another difference. Owning a gun does NOT impact anyone else. Killing a baby affects that baby dramatically, and is covered under pre-pre-existing law (the prohibition of murder).

    I think you just like throwing out laissez-faire all the time, or something.

    Just because something might pre-exist doesn’t mean that the right comes from the enlightenment era. It goes back to natural law.

  • SB

    Again, this whole post ignores the nature of American constitutional democracy, and pretends that we are living under a completely different system of government in which philosopher-kings decide what the law should be based on their view of natural law.

    Hence, we get absurdities like this:

    So why should Roe be overturned? If you say it is because the original framers did not think privacy encompassed abortion, that is the wrong answer. For what if they had? They certainly tolerated many things we do not today, and were heavily influenced by Enlightenment-era thinking– a philosophy I have argued is deeply flawed.

    If the Constitution as written had an actual provision stating, “The right to abortion shall not be infringed,” then I’m sorry to say that it would not be a judge’s prerogative to ignore and overrule such a constitutional provision. Likewise, given that the Second Amendment speaks in plain and undeniable of the right to keep and bear arms, it is not up to judges to decide that they prefer a different system. As I said in the other thread — without anyone even pretending to be able to answer me — for judges to go beyond their limited role and to overrule the text of the Constitution is as if a driver’s license clerk started refusing to hand out driver’s licenses because he thought the common good required less driving.

  • jh

    THere is much to say here. First what Scalia was really doing is called “Original Public Meaning Originalism”

    The repeated assertion that is what is a basic right to Self Defense is somme illegitimate Enlightenment thinking.

    First the Catechism states
    2263 The legitimate defense of persons and societies is not an exception to the prohibition against the murder of the innocent that constitutes intentional killing. “The act of self-defense can have a double effect: the preservation of one’s own life; and the killing of the aggressor…. The one is intended, the other is not.”

    2264 Love toward oneself remains a fundamental principle of morality. Therefore it is legitimate to insist on respect for one’s own right to life. Someone who defends his life is not guilty of murder even if he is forced to deal his aggressor a lethal blow:
    If a man in self-defense uses more than necessary violence, it will be unlawful: whereas if he repels force with moderation, his defense will be lawful…. Nor is it necessary for salvation that a man omit the act of moderate self-defense to avoid killing the other man, since one is bound to take more care of one’s own life than of another’s.

    2265 Legitimate defense can be not only a right but a grave duty for someone responsible for another’s life. Preserving the common good requires rendering the unjust aggressor unable to inflict harm. To this end, those holding legitimate authority have the right to repel by armed force aggressors against the civil community entrusted to their charge.

    Note especially “2265”.

    IS this an Enlighten ment Value?

    What I do not understand is why that people that have concerns about the “Common Good” are so overstating what this case will do. Justice Scalia went to some pains to point this out

    “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

    We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

    This seems to be ignored by those that are proclaaming that the Common Good is being violated. I would suggest that the when Scilia is saying this (only Thomas perhaps might be more of a Second Amendment Right advocate) that many of the regulation we have today we will have tommorow.

    When looking at the Opinion and i,ndeed this will have to be litigated out we get a sense that such things as laws prohibiting Concealed weapon would stand, that common sense Licensing and r,egulation( That is not just not a cynical device to make the right extinct) would stand muster.

    What is left out of this discussion are other benefits to the common good. If the people that support this right with much vigor have a sense that the Second amendment Right is protected and not every common sense Gun regulation is just a back door device to eliminate it then perhaps they would be agreeeeable to such legislation. That would indeed be progress and help the common good.

  • SB

    This should not be in itals:

    If the Constitution as written had an actual provision stating, “The right to abortion shall not be infringed,” then I’m sorry to say that it would not be a judge’s prerogative to ignore and overrule such a constitutional provision. Likewise, given that the Second Amendment speaks in plain and undeniable of the right to keep and bear arms, it is not up to judges to decide that they prefer a different system. As I said in the other thread — without anyone even pretending to be able to answer me — for judges to go beyond their limited role and to overrule the text of the Constitution is as if a driver’s license clerk started refusing to hand out driver’s licenses because he thought the common good required less driving.

  • Aside from your erroneous understanding of the Constitution and history of the United States (yeah, in this case I’m going to make an unsubstantiated assertion the way you do all the time), I think you err when citing the Angelic Doctor, natural and positive law. You somehow assume that owning firearms are a violation of the natural law and against the common good. I would argue that there is no sin in owning firearms and that indeed such ownership is well within the natural law. Further, I would argue that private gun ownership serves the common good. Now, you can disagree about whether it serves the common good or not, but if the mere fact of private citizens owning firearms proves to stave off an oppressive and immoral regime for centuries or allow the common man to throw off the shackles of an oppressive regime, then I’d say they certainly did serve the common good.

    Also, Fenty serves as Mayor due to the positive law. You can’t be consistent when you cite him as an authority in one breath, then in another complain that the positive law is all wrong or that Scalia who serves due to the positive law for operating under the positive law. And Fenty could be wrong, no? I believe he is. I also believe that DC might not be as bad if instead of empowering criminals, handcuffing the common man, and instead targeted the breakdown in the family – which is the real problem (and it’s most evidenced in the gangs and drug trade). Also of note: When Michigan was finally going to relax the restrictions on CCW’s, all the “experts” and many “law enforcement” agencies cried that there would be Old West gunfights in the streets, that civilization would end, blah blah blah. It turned out they were wrong (many of us knew they were), and crime has dropped (in fact a bank robbery was foiled a couple weeks ago because a customer was able to brandish his weapon and put an end to the whole thing), and those naysayers have since admitted they were wrong.

  • Sigh. Rick: I do NOT assume that owning handguns is in anyway sinful, or a violation of the natural law. It is not even always a violation of the common good. What am saying is that in the particular circumstances of a country with a horrendously high murder and suicide rate from guns, in a pervasive culture is tolerates, sometimes glorifies violence– then it becomes the right and duty of the person who has concern for the common good to regulate the use and ownership of such firearms. For when you waffle on (like Feddie yesterday) about overthrowing tyrannies, you are dreaming up scenarios with no proximate connection to the current facts and circumstances.

    This is personal for me. I live in DC. I now feel less secure and more vulnerable.

  • Policraticus

    You savants are consistent. And, you aren’t secular liberals or progressives. No. You just agree 100% with secular liberals and progressives.

    I don’t see Michelle Malkin or even you for that matter thinking deeply on this issue. Rather than engaging MM on the underlying philosophy argument, you skip along the superficial surface of partisanshp.

    SB and Rick are actually touching on the real issue.

  • SB: put simply, I disagree with your intepretation. And please desist ffrom repeating atht nobody can refute what can be simply reputed: I argued clearly that Scalia’s decision has no greater claim to authoritative constitutional interpretation than Stevens’s or Breyer’s dissent. It is more a reflection of Scalia’s personal views on the matter, guided by his underlying philosophy. You err when you say the text is “plain and simple”; it is anything but.

  • Malkin? Why not qoute Limbaugh and be done with it.

    Let’s see, shall we? I oppose Roe. I oppose Heller. I support Hamden and Boumediene. I would oppose any decision to recognize gay marriage. Who is the partisan now?

  • Policraticus

    MM,

    It’s T. Shaw. What else are we to expect? Just the same old hit-and-run “you’re a liberal idiot” garbage that stems from knee-jerk reaction rather than careful thought. I find him rather amusing.

  • SB

    I argued clearly that Scalia’s decision has no greater claim to authoritative constitutional interpretation than Stevens’s or Breyer’s dissent.

    You argued it, but it’s not true. Scalia looked very carefully at what the Constitution actually says, and came up with the only plausible interpretation. The dissenters spent some time considering that point, but their interpretation was consistently faulty and led to grammatical absurdities (given that, for example, the dissenters’ reading would mean that the Constitution creates a right to be a soldier, which is rather silly and unnecessary, or that the term “bear arms” can be excised from the phrase “keep and bear arms” and given a peculiar idiomatic meaning that makes no sense when coupled with “bear”). Moreover, the dissenters were more worried about whether protecting guns is good social policy — a point that is interesting but that is not within the capacity or authority of judges to decide in the American political system.

  • I now feel less secure and more vulnerable.

    Yeah I’m sure those thugs in Tenleytown and Dupont Circle that live near you are certainly a threat to your personal security. There’s no telling what all those white yuppies will be able to do now that they’re able to pack heat.

  • SB

    when coupled with “keep,” that is.

  • jh

    For those interested on How Early Catholics of this Country and her preceeding Colonies (IN this Case maryland) viewed this issue THis google book has a good overview starting at page 59

    http://books.google.com/books?id=Fyn9B9zwAjEC&pg=PA59&lpg=PA59&dq=Catholic+england's+right+to+bear+arms&source=web&ots=OEEPcdTCts&sig=XsxBPpLugOxpS-HTm9F8u8z2zo0&hl=en&sa=X&oi=book_result&resnum=4&ct=result#PPA59,M1

  • Just added an addendum with a nice quote from Jack Balkin, who (last time I checked) was a constitutional lawyer.

  • Okay MM: What am saying is that in the particular circumstances of a country with a horrendously high murder and suicide rate from guns, in a pervasive culture is tolerates, sometimes glorifies violence– then it becomes the right and duty of the person who has concern for the common good to regulate the use and ownership of such firearms.

    First, guns are regulated and will continue to be regulated. Second, I would argue that guns are not the cause of the violence, that the breakdown of the family is the cause. I think I’m on good ground in saying that since a.) the breakdown of the family should be self-evident to even the casual observer, and b.) the popes have spoken in great length about the importance of the family to a just an ordered society (Pope Benedict even made that the focus of his World Day of Peace message for 2008).

    We can debate the causes of the breakdown of the family, but I think it’s a combination of horrible public policy decisions, a consequence of being a wealthy nation, and a collectively disordered view of society (extreme individualism and materialism). Now to DC’s crime rate, the problem is not guns (and I’d argue a lack of guns in the hands of honest people is an issue), but gangs and drugs (desperate and misguided kids from broken homes making their own family and [disordered] society). We outlawed drugs, yet they’re still plentiful (even the former mayor of DC was involved in them), there is now an illegal, lucrative and violent market around them. Banning crack hasn’t done much to stop the killing, has it? I’m not arguing for legalization, I’m just citing the fact that banning something can have the effect of making matters worse. I believe that is the case with firearms, coupled with the fact that they are morally neutral and a beneficial tool for the common man, that they should not be prohibited.

    This ruling will do nothing about the crime in DC except possibly reduce the number of home invasions or allow some people to thwart some actions like that. If DC registers people for CCWs, then you should feel safer. I’d rather be unarmed on a subway at night knowing that some of my fellow travelers may be armed. Because if suspect that, then someone who chooses to prey upon others will suspect it and perhaps choose not to take the risk.

    Also, you may not like the actual outcome of Heller because you favor gun control, but that doesn’t mean it wasn’t the proper and objectively correct ruling. You can argue the 2nd Amendment is a bad thing or a wrong-headed idea, but it is what it is and Scalia identified it as such. What if George Bush ordered the military to surround Boston and intern all the residents because they vote for Ted Kennedy and he deems that contrary to the common good? You’d cry foul (as would I) and seek redress. You would argue it’s unjust and point out the president doesn’t have that sort of authority. Indeed, you’d be right, but let’s hope the justices on the Supreme Court, decide to interpret the Constitution based on the intent of the founders and ratifying states rather than their personal notions of the common good.

  • jh

    Legal scholar Jack Balkin with all due respect anaysis does not wow me because he gives none. He declares it that is all.

    As my above article to Maryland Catholic citizens shows as well as what Scalia was pointing out all over the place thta the amendment is directly related to the COdified Right to bear arms that was in place in England in 1699. It was codified then in part because what many viewed as the natural right was violated.

    It is tru the NRA has done great work keeping this issue at the forefront but to say that this is not the ancient view but a 2008 view is absurd.

    It is particaully absurd because all we have is the basic right. What that right consists of and what limiatations on that right are valid will still be litigated. Thus that being the case I am not sure with so much up in the air we can say this Opinion gives a 2008 viewpoint of the right to Bear Arms.

  • Adam Greenwood

    codified a pre-existing right

    And? Scalia isn’t claiming that there are these ineffable rights floating around that he’s entitled to enforce because he feels like it. He’s claiming that when the 2nd Amendment was ratified, *the people who ratified it* thought they had a right to arms floating around out there and the 2nd Amendment codified it. Contrast this with Roe, where the Court really did find an ineffable right floating around out there.

    What is your basis for thinking that any amendment or constitutional provision premised on a political theory on which you disagree is therefore unconstitutional?

  • Adam Greenwood

    Scalia’s opinion has no greater claim to authoritative constitutional interpretation than Souter’s or Breyer’s dissent

    Well, his was a majority opinion. Obviously being in a Supreme Court majority can’t compel the conscience, but it does tend to impress lower courts.

  • Exactly. Let us please leave the original purity arguments at home. This was a reflection of the re-emergence of laissez-faire liberalism after the so-called Reagan revolution. Same philosophy that guided Roe, whether they realize it or not.

    This makes absolutely no sense in any legal or historical context. It truly reads as if you are throwing every boogeyman cliche against the wall and looking to see what sticks.

  • This is personal for me. I live in DC. I now feel less secure and more vulnerable.

    Well, you’re certainly welcome to have that feeling. Others would feel otherwise. Personally, I have no fear of a military tyranny coming into power in the US any time soon (nor any illusions that ordinary civilians with handguns would have much ability to prevent it if it did) — however I for one would be completely unwilling to live in DC if I weren’t allowed to possess a handgun. As someone who’s actually lived through house break-ins and major riots — I don’t have a whole lot of illusions that the phone will magically bring help in time in a true emergency.

    I think two things are at the root of your convictions here, MM, which can very well be disputed within a Catholic understanding of the “common good”.

    First of all, you have a particularly modern, policy wonk conception of the “common good”. I think it could quite legitimately be disputed whether the fact that statistical analysis of the potential effects of some given regulation (even assuming that analysis to be valid and well agreed upon) necessarily make it a moral necessity for the “common good” that such a regulation be put in place. Even without holding individual liberty as a good unto itself, it is not inappropriate to balance the certain liberties with a desire to regulate. And at a more fundamental level, I think one can question whether the “common good” in Catholic understanding is as policy and regulation centered (and as statist) as the conception you seem to hold.

    Second, given your comments about the common good, the text of the constitution, and Roe vs. Heller — it sounds to me like you simply don’t like the idea of written law, or “positive law” if you will. I’d be open to agreeing with you that in an ideal world we would focus always on true justice and not worry about written law and custom. However, given the extreme difficultry of achieving any sort of civil agreement on what the true justice and natural law is in this world, I think that “positive law” is a good fall back for us.

  • Right, jh. An empty assertion. People may not like the second amendment and they may think it shouldn’t be part of any properly ordered society (I would disagree, but they are free to argue that), but the fact is any honest reading of history and the debates at the time leaves no room to doubt the intent of the 2nd Amendment. In fact, the biggest argument that surrounded the initiation of the 2A was the heated debate over whether there should be a federal standing army or a citizen army. The argument went roughly, the Federalists wanted a strong standing Army, the Anti-Federalists were fearful of it. The compromise was two-year funding of the standing army in the Constitution, and the concession of a Bill of Rights which included, obviously, the 2A. An individual right to keep and bear arms was a given and viewed as one of those unalienable rights that governments often tend to infringe upon, but the manner in how to provide for a defense was another.

  • jh

    RIck

    To me it is obvious and I also don’t think I am reading into what I want to see.

    I suppose what I find wrong now in a second post that this right to bear arms for self defense or to oppose Tyrants is somehow a personal liberty right that was concieved by the excess of the Enlightenment.

    It has its Foudations in the best of Catholic of Thought. The Famed Jesuit Surez said Self-defense, swas “the greatest of rights,” a right which belonged to individuals and to communities. This right of self-defense included a right of defense against tyrants

    Catholic self defense and resistance theory did not arise in 18th-century America or in 17th-century Great Britain. They are the natural results of an intellectual tradition that was in many ways far older and broader—and much more Catholic—than the American Founders may have realized.

  • jonathanjones02

    “This is personal for me. I live in DC. I now feel less secure and more vulnerable.”

    Just curious – do you honestly fear more those who legally obtained their gun in DC than those who exist within crime (unfortunately, a rather high percentage of the population in DC) ?

  • SB

    Oddly enough, one of Jack Balkin’s long-time co-authors — Sandy Levinson, also a distinguished law professor — is famous for having written an article called “The Embarrassing Second Amendment,” which gave significant aid to the resurrection of legal academics’ realization (echoed by Laurence Tribe in recent years) that the Second Amendment ought to be read to protect at least some individual rights.

  • jh

    FOr those interested One of the Catholics that submitted an amicus brief in Heller has submitted a post over at the Scotus Blog that brings up some interesting points

    Heller Discussion Board: Miller, Colt .45s and Natural Law

    http://www.scotusblog.com/wp/heller-discussion-board-miller-colt-45s-and-natural-law/

    I have read his law Review article THE CATHOLIC SECOND AMENDMENT that is also available and linked

  • MM-

    You really need to change topics, and stick to what you know. Constitutional law is simply not your strong suit.

    And that is putting the matter charitably.

  • Mike Petrik

    The ultimate problem with MM is simply that he thinks the Constitution ought to conform to natural law which in turn inevitably seems to conform to his peculiar policy preferences. This kind of thinking is common with non-lawyers. It is a variant of, “Laws that I think are stupid, unwise or unfair must be unconstitutional.” Sadly this kind of sophomoric thinking is also common among constitutional law professors — even those that teach at Yale or run for president.
    The Court got this one right, but it got the death penalty case wrong.

  • Guns are a toughie for me.

    A .44 comes in handy when I need to finish off a mulie out in the woods during deer season. I appreciate the minimal bureaucracy involved in buying guns…

    And yet. A place like DC makes a compelling case to make it harder to get handguns. It is hard to argue with the idea that if handguns were heavily restricted nationwide, the murder rate in DC would be a whole lot lower.

    (I’m not persuaded, by the way, by the idea that my deer rifle can effectively balance possible government tyranny. Even a Winchester .300 Magnum — versus F16s dropping cluster bombs? B52s? Massed Artillery? I don’t like those odds.

  • Feddie: and yet my “lack of knowledge” on constitutional law aligns me with the Church, whereas those who claim expertise tend to diverge. Interesting, no?

  • Feddie: and yet my “lack of knowledge” on constitutional law aligns me with the Church,

    Actually, it really doesn’t, but you keep thinking that, there, MM.

    The first rule of holes: stop digging.

  • Mike: not exactly. But on the big policy issues with political connotations, the “peculiar policy preferences” of the judges are what sway their opinion. Do you really doubt that Scalia decided as he did because he believes in an individual right to own guns, and that Stevens did so because he believes in gun control? Or that Bush v. Gore was decided indpendently of who the various actors actually wanted to be president? Cases like Heller are not narrow technical decisions where only one choice is valid (despite what SB says). Plenty of “experts” back Stevens, while others back Scalia. All sides use precedent and textual analysis to back their own position.

    My point is to step back from this. Recognizing the available latitude, we must ensure that the decisions are “correct” from the perspective of the natural law rather than merely the “constitutional law”.

  • Em, since the US bishops have been pushing gun control since the 1970s at least, I believe it does, Cranky Con. And what would you imagine the global Church would say, outside the US? I have a fairly good idea.

  • Em, since the US bishops have been pushing gun control since the 1970s at least,

    Em, since I believe others have already shown this to be a pathetic rebuttal, I’ll just leave you with your shovel.

  • Mike Petrik

    MM, I disagree re Scalia. Do you seriously think Scalia opined that flag burning was protected under the First Amendment because he favors flag burning?

    I agree that all too often judges do substitute their policy preferences for those of the legislature representing the people, and “experts” frequently do the same. Indeed last year I had a very pleasant conversation with renown constitutional law professor Erwin Chemerinsky, who admitted that he views the text as relevant only to the extent that it can be a rhetorical tool to assist him in convincing the court to decide the case in whatever way agrees with his policy preference. I give him some credit for honesty, insomuch as he practices his dishonesty honestly. The difference is I think it is wrong, indeed arrogant and immoral, to do so, as do all truly honest scholars.
    I think that Kennedy et al did exactly this in the child rape death penalty case. They decided that the death penalty in such cases is unconstitutional because they thought it was a bad idea. Such arrogance and willingness to abuse their office is evil.

  • Recognizing the available latitude, we must ensure that the decisions are “correct” from the perspective of the natural law rather than merely the “constitutional law”.

    Owning a gun is contrary to the natural law?

  • The authority of the US bishops is as strong as their consensus on particular issues with the universal church.

  • ctd

    Recognizing the available latitude, we must ensure that the decisions are “correct” from the perspective of the natural law rather than merely the “constitutional law”.

    Wrong. We can want – and even “ensure” if you want, that the laws, including the Constitution, are correct from the perspective of natural law, but with regards to the decisions, we can only expect that they conform to the Constitution. To expect otherwise would undermine the law itself. Since neither the common law and nor constitutional law are not, per se, unjust, we are obligated to abide by them.

    The Heller decision should be evaluated according to whether it is consistent with a proper interpretation of the Constitution. The policy should be evaluated according to whether it is consistent with the common good and natural law.

    The difference between Roe and Heller is that time has shown that Roe was not consistent with good constitutional interpretation and the policy it created was inconsistent with principles of justice. Whatever one thinks of the Heller decision, it’s whether it is consistent with good constitutional jurisprudence is a debatable question for the moment.

    As to the claim that the two decisions arise from the same philosophical roots – I am inclined to say that sometimes gun advocates and abortion rights advocates do act according to the same philosophical principles. However, the jurisprudential philosophy underlying the two decisions are clearly different. If Scalia was acting according to the same principles that resulted in Roe, he certainly hid it very well!

  • jh

    I am very sympathetic to a Natural Law approach to law. The problem is how to do it and apply it.

    I would have notproblem and in fact at times might very much want it to happen in extreme cases. Such as Cases that shock the conscious to such an effect that if violates the very dignity of man.

    Such cases are rare though and such a approach would have to be used with much discretion because if not the COurt would lose all power and intergity

  • ctd

    A point to keep in mind about the bishops’ position: I believe the bishops have always argued from the policy perspective. They have not argued about how the Second Amendment should be interpreted or the wisdom of the Second Amendment.

    Policy and judicial interpretation are two different things.

  • Mike Petrik

    “Policy and judicial interpretation are two different things.”

    Exactly.

    “I believe the bishops have always argued from the policy perspective. They have not argued about how the Second Amendment should be interpreted or the wisdom of the Second Amendment.”

    I wish that were true, but I’m doubtful. The bishops are probably no less vulnerable to the tempation to confuse the two as are many of the posters on this thread.

  • c matt

    we must ensure that the decisions are “correct” from a perspective of the natural law rather than merely the “constitutional law.”

    That’s all fine and dandy, but the way to ensure the decisions are correct from a natural law perspective is not to have the Court unrecognizably twist and turn the language of the Constitution to suit a particular policy preference (that’s not the Court’s job), but to amend the Constitution so that it conforms with what you believe to be the natural law if you think it does conflict.

  • Mike Petrik

    c matt is exactly correct. Under our system of government, judges are not assigned the task of making law — natural or positive. The job of ensuring that positive law refects and is consistent with natural law rests with the people acting through their legislatures. Judges are assigned the task of deciding individual cases by applying the positive laws that the people have made; they are not empowered to substitute their own policy preferences for those laws, no matter how strongly they may feel that their own policy preferences are in greater accord with natural law, common sense, or sublime wisdom. If a judge believes that a law is foolish, malicious, or incompatable with natural law, he may certainly say so in his opinion; he may even admonish the legislature accordingly. But the Framers were wise and practical men. While they were very much influenced by Locke and others who believed in natural law, they knew that in the real world disagreement would be the order of the day, including honest disagreement among informed and enlightened men, and they were wise enough to delegate the act of lawmaking to many elected legislators, knowing that the opportunity for terrible mischief would be less than if it were assigned to a handful of appointed judges. A judge ignoring the positive law in favor of applying his own understanding of natural law does violence to our system of government, and if he does so dishonestly by pretending that he is faithfully applying positive law, he does violence to natural law as well.

  • Zach: No!!! But the competent public authorities, those charged with care of the community, have the right to curb this individual right to safeguard the common good. That is what the USCCB argues — to the point of a total ban on handguns– and I support them,

  • OK.

    I guess I don’t agree with the USCCB.

    Can you point me to documents where they outline this totalitarian teaching?

  • Zach: link in yeterday’s nice. Nice: USCCB=totalitarian.

  • No, the USCCB is not “=totalitarian”.

    The outright ban of guns is a totalitarian policy – it’s the first thing totalitarian governments do.

    But it does not follow that the USCCB is totalitarian. Come on.

  • I’m not committed to that word – maybe it was a poor choice – but it’s a policy that, in my opinion, would severely and dangerously limit our freedom, and would put us on a dangerous path as a nation.

  • Ah thanks for pointing me to the reference – I missed that yesterday.

  • c matt

    Roe and Heller go together

    Actually, it would seem Roe and Kennedy (the recent opinion, not the justice, although that may apply too) go together. But it doesn’t rhyme.

  • Jonathan

    The common authorities are legislators. Judges are not in charge of the common good in that way, not in our federal system at any rate. It is up to legislators to change the Constitution, not the judges.

    Can you differentiate for me the difference between your idea of the common good and group utilitarianism?

  • TeutonicTim

    I still think it’s interesting how MM is complaining about the power these Justices have, and still holds his position that the appointment of justices doesn’t matter in choosing a presidential candidate.

    MM – How do you reconcile these positions?

  • I’m unclear how MM can claim that “Catholic teaching” supports the policy of a total handgun ban. The bishops have suggested several times over the past few decades that they think that a ban on handguns would be a good idea — but that is a prudential policy suggestion, so far as I can tell.

    The “Catholic teaching” involved has to do with the immorality of assault, suicide and murder — not with the legality of handguns.

    But it seems to me that the question of whether handgun ownership should be legal is not only not a matter of Catholic teaching, but by its nature can not be a matter of Catholic teaching.

    One could, I suppose, claim that it was a moral issue based on the need for the positive law to mirror divine law, but no one has suggested that owning or using a handgun is inherently evil. Rather, it has simply been suggested that limiting the ownership of handguns might mitigate the practical evils resulting from the sins of assault and suicide.

    There is certainly nothing inherent in Catholic teaching to suggest that either the ownership and use of handguns in general, or their presence in modern society for personal and family defense, is a grave moral evil. And it is frankly either foolish or disingenuous of MM to suggest that it is.

  • Morning’s Minion

    Darwin: I have stated many times that ownership of handguns is not sinful. And prudential judgment is exactly the way to look at at: the application of moral principles to particular facts and circumstances. And in the modern United States, there is an obscene level of gun-related homicides and suicides that is beyond a shadow of a doubt related to the availability of guns. Thus the common good would call for the removal of these weapons from society– there is no natural right to ownership absent common good considerations. A ban would be a good ordinance of reason for the common good, in Aquinas’s language.

  • MM,

    Well first of all, if you meant to say, “I think it would be most prudent to ban handguns” you should have said that, rather than saying that it was a matter of “Church teaching”.

    Secondly, it’s pretty clear that the case only seems like such a slam dunk to you because you see little positive good in gun ownership — whether in regards to recreation or to just use in self defense. Thus, this seems like an obvious one to you — and yet you do not, so far as I know, demand that we ban those under 20 and over 70 from driving, or ban alcohol, or ban families with children under three from owning buckets, toilets and bathtubs, or impose a national speed limit of 45mph — despite the fact that all of those would result in avoiding large numbers of deaths each year.

    Given the incredibly tiny percentage of guns that end up being used in murders of suicides, and the large percentage which are quite successfully used for recreation or security, you can hardly be incredulous if others who do not have a reflexive hatred or fear of guns (which are, after all, inanimate objects) come to different prudential conclusions than you do.

    Very often, our senses of judgement and justice tell us that we should not go where the statistics tell us. After all, if we really wanted to do exactly what the stats say, we would ban poor people and minorities from owning any guns, and make them perfectly legal for everyone else. But we all know that would be disgustingly unjust.

  • Darwin: the statement should be that Church teaching holds that it it would be prudent public policy in the present-day United States to place restrictions on handgun ownersip, even to the point of an outright ban. You cannot just write off the UCSSB.

    As to yor other poont, a couple of responses. First, the public authorities do indeed have the right and duty, in the name of the common good, to regulate these matters. As for driving, I certainly believe in should be restricted to 18-year olds, with more stringent controls on drunk driving and the use of cellphones while driving. And it is for this reason I think Ralph Nader’s people have done incalculable good over the years. Of course, laissez-faire liberals would great exception to these suggestions, which is the point, I think.

    Second, it is fallacious to compare guns with things like toilets or bathtubs. Handguns are designed with the purpose to shooting a piece of lead into a person’s flesh. Do they have another purpose (I suppose you could point to shooing at targets, but that’s a stretch!). Their availability contributes directly to a culture of death, especially in an atmosphere where they are idolized (as they are in popualr culture).

  • SB

    Handguns are designed with the purpose to shooting a piece of lead into a person’s flesh. Do they have another purpose (I suppose you could point to shooing at targets, but that’s a stretch!).

    A stretch? Says who? I’m not a regular shooter, but every time I have ever used a handgun has been for the purpose of target shooting, and the same is true of every person I have ever known who has ever used a handgun. Target shooting is fun, for the same reason that people like to shoot arrows, or shoot a basketball at a hoop, or kick a soccer ball into a goal, or hit a golf ball towards the hole, or many other examples. I’m sure there’s probably an evolutionary psychology explanation for this, but it just seems to be innate — humans like to aim something at a target.

  • You cannot just write off the UCSSB.

    I can’t?

    The US bishops are our spiritual shepherds, commissioned to provide us with the living teaching of Christ on earth. However, when they provide their prudential assessments in regards to public policies, those assessments are as good as (and no better than) their knowledge and abilities in regards to those topics.

    In this case, I do not think that their assessment is very good. So while I hold them in the highest respect and submit my will to them in all matters of faith and morals, I simply don’t find these few mentions of theirs in regards to handgun control to be compelling.

    In re driving as such — I’m not surprised that you want to err on the side of regulation in this as in all things. Though heck, why stop at eighteen. Unmarried people have far more car accidents than married ones, so why not ban them? Poor people, minorities and immigrants also have far more accidents. Would you ban them as well? With driving as with many other things, there are benefits that must be weighed against the costs. Allowing the young and other high risk groups to drive allows them to hold jobs, help with family duties, provide emergency assistance, etc.

    By the same token, allowing responsible citizens to own weapons allows them to protect against crimes and civil unrest in the absence (all to frequent in large cities and in times of trouble) of police officers. Just as I feel safer knowing that in most cities off duty police officers are required to carry concealed weapons so that they can intervene in case of a crime, I also think it provides true social value for those responsible citizens who live in a neighborhood and possess the training and expertise to use weapons to own them. No one is in a better position to protect a neighborhood than those who live in it, know it, and care about it.

    Second, it is fallacious to compare guns with things like toilets or bathtubs. Handguns are designed with the purpose to shooting a piece of lead into a person’s flesh. Do they have another purpose (I suppose you could point to shooing at targets, but that’s a stretch!). Their availability contributes directly to a culture of death, especially in an atmosphere where they are idolized (as they are in popualr culture).

    Given that only about 1-2% of handguns manufactured are ever used in a crime at all, much less actually place a piece lead into a persons flesh, that seems like a reach. Most handguns are indeed used for target practice, and kept for possible use in defense of self, family and neighborhood.

    I do agree that we need to drastically change the glamorization of violence in our culture. If the bishops want to start at home, I think they might consider refusing Christian burial (or at least public funerals) to gang members who are killed in crime related violence. And I have no problem with vastly higher penalties for anyone who commits a crime with a gun. (Though as I recall, the bishops are against hanging all murderers in the public square, so we can’t go that far, I’m afraid.)

  • Well first of all, if you meant to say, “I think it would be most prudent to ban handguns” you should have said that, rather than saying that it was a matter of “Church teaching”.

    That, though, would involve MM stepping down from the Chair of Peter, and confessing that his opinions are not Church teaching.

  • RR

    Amazing. MM just removed the 2nd amendment from the Constitution!

    Even if one believes abortion to be a pre-existing right, there is no constitutional protection for it!

    Anyway, I suppose now MM will unendorse Obama?

  • “That, though would involve MM stepping down from the Chair of Peter, and confessing that his opinions are not Church teaching.”

    That’s rich, coming from the most rigid man in the Catholic blog world! Especially when I am the one supporting the bishops, anbd everybody else saying they are basically full of crap. And instead of hectoring Vox Nova and its bloggers, maybe you should look to your bishop-bashing buddies over at What’s Wrong with the World?

  • Mike Petrik

    MM, you could not be more wrong on the proposition that Roe and Heller are made of the same stuff. As for your prudential calculus, you may be right. I have no real brief on the prudential value of handgun ownership versus its criminalization. But what you propose is simply not compatable with the 2d Amendment. If you are serious, perhaps you should propose a 28th Amendment. For the most scholary exposition of the scope of the 2d Amendment, see http://www.guncite.com/journals/vanalful.html.

  • George Smiley

    It’s the Calvinists wot done it!

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