Gun Control, Court Control

When I was in middle school, certain students every year used to run for student government on a platform of getting a soft-drink machine for the school cafeteria, only to be told after they were in office that there was a state law against it.  Oh. . .gee. . .now what?  I can’t help but think of that little life lesson every time I see yet another discussion on television about the importance of banning guns in the wake of the Sandy Hook tragedy. 

Now look, I’m not a particular fan or foe of gun control or gun rights. Some of our bishops and at least one Vatican spokesman have made general statements about the desirability of some form of gun control that seem reasonable in theory though thorny in practice.

Some people are convinced that restrictions would help prevent tragedies like the recent mass shootings; others are equally convinced they would not – and, indeed, that such gun restrictions would only make matters worse.  Each sides also appears to believe – and this is not unusual these days – that the other side is both idiotic and iniquitous.

For my part, I don’t intend to make any claims here about the substance of the gun control issue. That’s not my point for the moment.  My point is simply that the debate seems largely pointless in a way akin to the debates over soft-drink machines in my school.  The issue is moot, is it not? 

Am I wrong, or hasn’t the Supreme Court decided that the Second Amendment right to “keep and bear arms” is not merely for the purposes of a “well-regulated militia,” it is a personal right. And more to the point, hasn’t the Court signaled that they will henceforth “incorporate” this personal right to have a weapon into its application of the due process clause of the Fourteenth Amendment, as it has the other sections of the Bill of Rights. So that the exact limits of what the states will or will not be allowed to do with regard to regulating gun ownership will in the future be decided, not by locally-elected state officials answerable to the voters, but by five of the nine unelected members of the Supreme Court.

You may agree or disagree with the Court’s interpretation of the Constitution or with its particular judgments about what should or should not be allowed, but there it is.

And for those of you who disagree with the Court on this little matter of Second Amendment jurisprudence, now you know what those of us who oppose abortion have had to live with for the past forty years.  The entire business of democratic debate and compromise will very shortly become for you, as it has been for us, entirely irrelevant.

           5 – 4 = Justice Kennedy

In the world of “substantive due process,” where the Fourteenth Amendment guarantees not only a process, but places substantive limitations on the content or subject matter of state and federal laws, five votes are the only ones that count.  Such, in short, is the world of absolute “rights.”

Recent studies have suggested that large groups of people will actually come up with the right answer to a question a large percentage of the time.  It turns out that the people on “Who Wants to be a Millionaire?” should always ask the crowd, because the crowd is often more likely to be right than any single “expert.” There can be wisdom in numbers.

But that whole business about the wisdom of a larger number of people – a wisdom that might work itself out in various ways and by means of various compromises across different states and in different municipalities – when it comes to the major issues, forget it. It’s only which way Justice Anthony Kennedy is leaning on the issue-at-hand that seems to matter anymore.

Needless to say, this is not exactly what the Framers intended.  And the problem with a government that is unbalanced in one direction is that it will tempt other branches to unbalance themselves in other directions.  A judicial branch that repeatedly oversteps its Constitutional boundaries will tempt the executive to do the same.  Eventually, the branch that was supposed to be primary – the Legislative – ends up essentially powerless, with the Executive bypassing legislators on the one side, and the Judiciary increasingly undoing their legislative decisions on the other.

Look at what provokes the emotions of the nation, and you’ll realize that only two political choices matter anymore: the election of the president, and the appointing of members to the Supreme Court.  And, of course, the second of these isn’t an election or even a choice like a Cabinet member, who will come and go over a relatively short time. It’s more of – what? – a lifetime coronation?  If you get enough “votes” from the Senate, you become one of the members of the nine-person Star Chamber that decides whether we have guns or not, abortion or not, gay marriage or not, nationalized health care or not, religious liberty or not. 

Whatever you think about any of these issues – whether you’re in favor or opposed – you should realize that repeatedly depending on nine lawyers to decide these things for all 350 million of us across fifty very different states can’t possibly be the best way to resolve our deepest differences and arrive at wise, meaningful compromises. 

The virtues needed in a democratic republic are, like all virtues, of the sort that, if you lose the habit, they’re hard to get back.  And authority is certainly the sort of thing that, once you’ve ceded it away to others, is nearly impossible to get back.

So, to The New York Times, whose editorials deploring the Court’s Second Amendment jurisprudence have been so filled with outrage lately – “How could they have done this to us?” – I feel your pain.  And as a long-time opponent of abortion, all I can say is: Welcome to our world.


Randall B. Smith is a Professor of Theology at the University of St. Thomas in Houston, Texas. His latest book is From Here to Eternity: Reflections on Death, Immortality, and the Resurrection of the Body.