Jewish World Review July 7, 2010 / 25 Tamuz 5770
A New Birth of Freedom: The 14th Amendment Restored
By Paul Greenberg
It was expected. The outcome of the
The reaction to the decision was predictable, too: Supporters of the Second Amendment and the right to bear arms cheered; the gun-control crowd predicted the worst, as they always do when Americans are allowed to defend themselves and their homes. Once again, we're being told that all hell is going to break loose -- even though it never does as one state after another passes a concealed-carry law.
The legal reasoning that led to the court's opinion in McDonald v. Chicago last week was scarcely new. It was a routine Fourteenth Amendment case. All the court had to do was decide whether some right, like the right to bear arms, was covered by the broad language of the amendment. If so, it was deemed "fundamental" and could not be abridged. To use the currently accepted euphemism, it was "incorporated" into the Constitution. As for those rights that aren't, well, they just have to wait their turn -- till public opinion or the court, which can be much the same, changes.
It's a wholly arbitrary approach, more a matter of whim than law. Whenever the
Not even the clear language of the Fourteenth Amendment, deliberately designed to assure the rights of even the least of us, the newly freed slaves after the Civil War, could keep sharp legal minds from finding ways around, through and right past this part of the Constitution. Hence the dubious doctrine of "incorporation" was born, or at least foreshadowed, with the infamous Slaughter-House cases that mainly slaughtered the Fourteenth Amendment.
That's how the Fourteenth Amendment has been reduced to protecting due process, rather than the essential rights it ostensibly protects. So that, in this week's extension of Second Amendment rights, four of the justices in the majority could base their decision on the usual, largely arbitrary interpretation of what constitutes due process.
But the fifth justice concurring in this decision -- the Hon.
His 56-page concurrence in this case is also a sweeping history of the interpretation (and misinterpretation) of the Fourteenth Amendment through the years. He reviews the various conniptions of those legal scholars who, in the dubious tradition of the Slaughter-House cases, have sought to cut and trim the Fourteenth Amendment to fit their own passing prejudices. Looking over this history of legal legerdemain,
"All of this is a legal fiction. The notion that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty or property ... strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the court's substantive due process precedents together is their lack of a guiding principle to distinguish 'fundamental' rights that warrant protection from nonfundamental rights that do not....
"I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This court's substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. ... I believe this case presents an opportunity to re-examine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it."
It's an opportunity
No wonder not a single other justice who made up the prevailing side in this case, on different and more diffuse grounds, offered any objection to the straight, undeviating route
This not just a landmark legal opinion. It is a history lesson that should be read by every student of the continuing struggle to fulfill the Bill of Rights.
"One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. ... The experience left him with a sense, 'not of powerlessness, but of the possibilities of salvation' that came from standing up to intimidation."
Of arms and the man
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