Guns, Democracy and the Supreme Court

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http://www.thenation.com/article/172260/guns-democracy-and-supreme-court



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.

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.”