June 28, 2008

Best of the Right-Wing Reactionaries

It just wouldn't be Saturday night without yet another howler courtesy of the Milwaukee Journal-Sentinel's "Best of the Wisconsin Blogs."

This week's "best blogger" claims that D.C. v. Heller, the U.S. Supreme Court's big gun case, was decided "5-4 in favor of the individual right to bear arms."

One wonders how a best blogger could make such a rookie mistake, since the four dissenting Justices also agreed that
The question presented by this case is not whether the Second Amendment protects a "collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.
In fact that is the opening paragraph of the lead dissent and is reiterated even more clearly in Justice Breyer's dissent:
The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred.
So, first of all, collective vs. individual right was not at issue and secondly, had it been, the result was 9-0. And even then, only within federal jurisdiction. And then only in your home.

In hopes of overcoming his initial gaffe, the best blogger continues:
My favorite quote so far:

"In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority 'would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.'"

Except, of course, the part where they passed the 2nd Amendment as part of the Bill of Rights.
Nope, just more gaffes. And that is the entire "Best of the Wisconsin Blogs" blog entry, by the way.

No self-respecting, self-described political blogger would ever rely on the Associated Press for the substance of court opinions, so is it any wonder that a newspaper editor would find professional and maybe even personal vindication that some clown in the "new media" had so relied, and wished to congratulate him on suitably irrational grounds. These days, the opinion appears online before the news report, so there's not even any need to rely on the latter.

Not only that, but despite the AP editor's period within the quotation marks, it's only half a sentence, which is one of the myriad reasons for not relying on Associated Press reports of court opinions. Here, the AP actually cut an entire sentence, and thereby its meaning, in half. That's bad enough, but to see a blogger enshrined — by newspaper editors, no less — to "Wisconsin Best" status simply for mindlessly duplicating deliberately negligent journalism and attaching an allegedly droll yet ultimately irrelevant one-line quip is ludicrous.
The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.
As it turns out, Justice Stevens was talking about something quite different than Wisconsin's best blogger understands. And, like many conservatives, he seeks to ignore what the Court calls the Second Amendment's prefatory clause, the one that refers to a well regulated militia, never mind even the majority's acknowledgment that militia use of arms is different than civilian use, whereas the Second Amendment describes only regulation of the militia.

The choice to which Justice Stevens refers is not whether elected officials may regulate civilian use of arms — they certainly may — but whether the Framers meant to leave it to the courts to define the policy contours of the contemplated regulations. Even the majority recognizes that the right to keep and bear arms is not absolute, and is therefore subject to some regulation.

Normally, conservatives would side with Justice Stevens's admonishment of the majority for interfering unwarrantedly in the political process, but apparently this principle may itself be quickly abandoned for expedient political purposes. Or even just dimwitted ones.

Justice Stevens offers as illustration in a footnote a comparison between the Court's active involvement in federal election districting cases, another area one might imagine to be the exclusive preserve of the political branches of federal government. But whereas the political branches were "manifestly unable" to solve the districting problem, "no one has suggested that the political process is not working exactly as it should in mediating the debate between the advocates and opponents of gun control."

Indeed, Heller was entirely a controversy of judicial manufacture in the first place. The Cato Institute hand selected six potential plaintiffs and threw them into federal court. One, Richard Heller, stuck. And only on appeal, at that, having been initially dismissed along with the other five for failing to successfully argue standing.

But ultimately, and most importantly, Justice Stevens at the conclusion of his dissent is expressly addressing two specific and related claims alleged by the majority, that
“the right of law-abiding, responsible citizens to use arms in defense of hearth and home” is “elevate[d] above all other interests” by the Second Amendment.
and that
a [legislative] policy choice that denies a “law-abiding, responsible citize[n]” the right to keep and use weapons in the home for self-defense is “off the table.”
To be sure, Stevens isn't talking about whether the individual right to keep and bear arms is "off the table," he is criticizing the majority for defining the contours of acceptable legislative policy, and declaring as if by fiat the limits of those contours, despite no indication of the Court's constitutional power to make such determinations.

These are sentiments occasionally guaranteed to warm the so-called judicial conservative's heart. In fact they are the precise lines of argument conservatives adopt to criticize judicial results they don't personally care for, whether they understand — or have even read — the decisions themselves. All of which is simply more evidence that accusations of "judicial activism" emanating from political conservatives are essentially a hollow partisan farce.

Seriously, Milwaukee Journal-Sentinel, this is hardly the best Wisconsin bloggers have to offer. At least spend five minutes investigating the context of what you're memorializing.


Anonymous said...

Is the Best of the Blogs award just handed out by McIlheran?

What jointly literate and sentient agent could bestow that label in the frankly unbelievable ways of the JS?

illusory tenant said...

I ascribe it to laziness. According to Blogger.com, there are 31,100 users listing Wisconsin as their location -- 4,200 in Milwaukee alone -- and that's not including WordPress users or authors with their own domain names.

Many of those are inactive, of course, but the J-S seems to inventory a random grab bag of about ten, some of whom are thoughtful and good, some simply talking point parrots.

It's a fine idea, but the execution is hopeless and often insulting.

William Tyroler said...

first of all, collective vs. individual right was not at issue and secondly, had it been, the result was 9-0 .... Even the majority recognizes that the right to keep and bear arms is not absolute, and is therefore subject to some regulation.

Exactly so. I might, however, suggest that there is just as much potential for confusion about this on the left as the right -- illustrated, so to speak, by the J-S's own very liberal Stuart Carlson

illusory tenant said...

A perfect caricature, nevertheless.

Anonymous said...

In Wiggy's defense, this topic leads even the best and the brightest to go soft in the head, even to the point of confusing James Madison with Mao Tse-Tung.

Display Name said...

But what an opportunity for the party operatives! The Republicans are so good at this. Democrats are harder to herd, I think, but those Republicans fall right in line and follow orders. Easy as pie, some operative hands a blogger a talking point, the next Sunday it's on the editorial page. For free. No balanced view necessary, no fact-checking (it's Opinion!) and another few column inches are filled for free. The J-S looks hip because they're aware of blogs. What's not to like?

illusory tenant said...

Hunger Riot?