Originalists? Since when….

The Supreme Court handed down its landmark decision in District of Columbia v. Heller this past week. While the Court’s decision has been lauded by supporters of gun rights and decried by those who fail to recognize that the opinion still allows some gun control regulations, the most striking aspect of the Supreme Court’s opinion is the legal stance taken by those in dissent. The four Justices who dissented – Souter, Breyer, Ginsburg, and Stevens – usually take a position that views the Constitution as a “living document.”

This living document, they regularly argue, allows for the creation of new rights and standards that the Founders and the drafters of the 14th Amendment never envisioned. For example, the drafters of the 8th Amendment would not have envisioned a constitutional problem with the execution of child rapists – nearly all felonies were punishable by death at the time of adoption of the amendment. Yet, in the Heller decision, these Justices decided that they would become strict originalists and conclude that at the time of the 2nd Amendment’s adoption, it was not meant to protect the right of individuals to use guns for non-military purposes (i.e. hunting and self-defense).

While an argument can be made about the original intent of the 2nd Amendment, there can be little debate that modern society – the American public over the course of the last 100 years – would view the 2nd Amendment as granting an individual right to use guns for hunting and self-defense. What is startling about the position of the four Justices in dissent is that it exposes their lack of a clear and consistent overarching view of constitutional interpretation. Their dissent reveals that they decide cases based on what they feel - not on what the law is. The dissent arguably could have written a dissenting opinion that still found the DC law constitutional under a living document philosophy, but they choose not to. Their failure to do so is even more evidence of a lack of a clear approach to constitutional questions.

This lack of a clear philosophy means that the four Justices in dissent are simply acting as legislators – making decisions based on the current political climate rather than on a principled view of the law.

Whomever our next President is will likely have the opportunity to appoint at least one Justice to the Supreme Court. Let’s hope that he appoints someone with a clear philosophy rather than someone who views themselves as the ultimate decider of what is right (in their eyes) rather than what the law is.