Patterico's Pontifications


Lithwick on the Heller Argument

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 8:02 pm

Dahlia Lithwick on the Heller argument:

That’s five votes to create a fundamental right to bear arms, only eight minutes into the argument.

Excuse me? How do you “create” something that’s already in the Constitution?

Today we have four liberals rediscovering the beauty of local government and judicial restraint and five conservatives poised to identify a fundamental personal right that will have judges mucking about in gun cases for years to come. After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right.

Excuse me? What is “new” about a right that has been in the Constitution since 1791?

If you can get past this type of Orwelllian bullshit, the piece is a fairly entertaining rundown of the argument — capturing most of the important nuances, all with Dahlia’s inimitable snarky, disingenuous style.

8 Responses to “Lithwick on the Heller Argument”

  1. If you can get past this type of Orwelllian bullshit

    I personally can’t. I like her writing style, she certainly has talent. But those little throwaway digs poison the whole trough. They always seem to ruin the whole point she’s trying to make (“hmm, obviously if this isn’t a “new” constitutional right, then it won’t contrast very well with the liberal Justices discovering the joys of local government and judicial restraint; oh well, I’ll call it new anyway; remember the motto: Pithy Uber Alles”).

    It makes her look cheap, and frankly, not smart enough to analyze things and find a real point. She has to manufacture one.

    Bench (5baef3)

  2. I’m enjoying the image of four liberal justices rediscovering “the beauty of local government and judicial restraint.” If only.

    DRJ (a431ca)

  3. Lithwick is the next generation Maureen Dowd: a talented writer in the service of shamefully shallow opinions.

    JVW (85f15c)

  4. When you boil it down, cases like this are really about whether or not we have a written constitution. If judges are willing to ignore the plain text of the document and divine third-order rights emanating from penumbras, we really only have a written constitution to the extent there’s a piece of paper somewhere with words on it – a historical curiosity at best. That seems like a much more important principle than whether the court is willing to respect any individual ammendment.

    You always knew people like Lithwich would be horrified to see the “living” constitution “live” in a direction they don’t like. I predict a newfound enthusiasm for originalism, as long as you define it to be, say, Earl Warren’s original take.

    Eric (09e4ab)

  5. The Roberts Court has fallen in love with a new constitutional right.

    A “new” constitutional right that is actually written in the constitution versus an “emanation of a penumbra” of a right to abortion…

    Back to the “Constitution should be reinterpreted to mean what I think it should mean, not what the Founders meant” again.

    kimsch (2ce939)

  6. I did a (very) brief perusal of the comments to Ms. Lithwick’s essay, and the good news is that a number ofreaders are taking her to task for her curious understanding of the Bill of Rights.

    JVW (85f15c)


    The founders left no doubt as to what they meant.

    If you oppose civilian arms, you need to advocate repeal of the 2nd.

    Arguing the meaning of the amendment is pretty much by definition disingenuous.

    Liars make me weary.

    Merovign (4744a2)

  8. This isn’t new, of course. Even that great NY Times conservative, William Safire [/sarcasm] thought this way. In his June 10, 1999 NY Times column he had this to say:

    Here’s how to fix a flawed amendment that is the source of so much confusion: Repeal its ambiguous preamble. Let some member of Congress introduce an amendment to strike the words before the comma in the Second Amendment.

    Then vote the amendment up or down. If it fails to pass, stop arguing and compromise on nibbling. If Congress passes repeal, let ratification be fought out in the states, where representatives closest to the people can decide on strict licensing.

    That’s the decisive, constitutional way to come to grips with the abomination of too many handguns in trigger-happy hands.

    I tried to write the editor on that one, and they would have published my response except they wanted to take out the part where I claimed he had it completely backwards. They called that a “factual error.”

    Kevin Murphy (0b2493)

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