Robyn Blumner with a howler: Gives Scalia both barrels on Second Amendment opinion

If there's one thing that Robyn Blumner (the editorial pinata of The St. Petersburg Times) ought to know about, it is the law. After all, she obtained a law degree, passed the bar (New York) and headed Florida's branch of the ACLU.

I've been looking forward to her opinion of the recent Supreme Court decision respecting Washington D.C.'s gun ban.

Blumner, if her position at the Times is not an immediate tip-off, is a political liberal.

She tacitly admitted in a March 2008 column that Roe v. Wade has its constitutional foundations as "'super-duper' precedent" rather than in the Constitution. But apparently that sauce is magically reserved for the goose. Try to figure out the underpinnings of Blumner's preferred method of Constitutional interpretation. Consider that a dare.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." —The Second Amendment to the Constitution.

Now we finally know what this Amendment means. The Supreme Court's five conservative justices have just ruled that we all have a constitutional right to own a gun.

(The St. Petersburg Times)

Is that a skeptical tone? Blumner notes that Scalia wrote the opinion of the Court, and she notes that "the court's four liberal justices vigorously dissented, reading history and precedent quite differently and finding that the Second Amendment proclaimed a collective right protecting state militias."

Of course, they lost and Scalia's opinion is now law. So it's worth a walk through Scalia's logic constraining federal gun-control efforts, to see if it holds.

What do we care if the logic holds if we don't buy the originalist method of interpretation? If the Constitution is a "living document" then why can't the Constitution simply mean what the majority of justices say it means? You know, like a "'super-duper' precedent"? Could it be that Blumner has been won over to the type of constitutional interpretation that Bush and McCain advocate for members of the federal courts?

In District of Columbia vs. Heller, the court reviewed a district law barring the possession of handguns, even in one's home, and directing that rifles be dismantled or sport trigger locks. The court struck this down as unconstitutional.

In his analysis, Scalia spent a great deal of time laying out the historical underpinnings of the Second Amendment. Beyond the right of self-defense, Scalia declared that the framers viewed the right to bear arms as a check against an overbearing federal authority. Having just come through their own need to toss off the oppressive government of King George III, the framers thought it essential to empower a citizens' militia. "(W)hen the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny," Scalia explained.

But if that's true, and the Second Amendment grants citizens the capacity to revolt against usurpations by government, then doesn't it follow that they have the right to the weapons needed to do so? Doesn't this logic lead us to an individual right to a nuclear device? How else to challenge an American government run amok? Or, if not so great a weapon of mass destruction then at least an assault rifle, the very basic outfit of any revolution.

Oops. Blumner seems to have accidentally slipped out of the originalist mold. An aberration, I trust. The Constitution was not originally referring to nuclear devices. Those were not yet invented. It was referring to guns, since those were the common arms of the day. Using the "living Constitution" model the logic might follow that nuclear arms would be a Constitutional right--but then apparently any logic works using that method, including finding that the government can deny citizens the right to own a handgun.

A guest on the Hugh Hewitt Show last week (I believe it was "smart guy" John Eastman of Chapman Law School) helped illuminate Scalia's argument. Guns were in common use at the time. People kept them for hunting and for self-defense, as well as for forming militias. As such, the right to bear arms was a given, and the language of the Constitution affirms it while limiting the federal government's reach in abridging that existing right.

Blumner's apparently not up on that sort of thing for purposes of her embryonic venture into originalism:

No dice, Scalia says, in full punt mode. Scalia claims that the individual right to bear arms does not include "M-16 rifles and the like" because it covers only those weapons "in common use at the time" of the amendment's adoption in the 18th century and not "dangerous and unusual weapons."

As to how Scalia's perfectly reasonable justification of the originalist interpretation represents "punt mode" I guess we'll just have to wonder--unless we simply take Blumner's word for it.

First, all weapons are dangerous — it's sort of the point. Second, if citizens in a militia — or a person protecting his home from a robber — is to have any chance today they must be armed with something better than a flintlock musket.

In the original context it is plain that Scalia refers to weapons that are dangerous and unusual. Not merely one or the other, lest dangerous objects like scissors be banned by the government. Cannons were not a common household weapon as the Constitution was written, therefore (under Scalia's view) it is not likely that private ownership of a cannon was considered a protected right. Somehow Blumner overlooks that obvious and key aspect of the argument.

Not to worry, says Scalia, because the Second Amendment includes all modern advances of "bearable arms" even if they "were not in existence at the time of the founding." But not military-type arms.

There is no cohesive logic here. The Second Amendment's prefatory clause must mean something, at least granting individuals the right to weapons that a modern militia would carry. Scalia accepts an updating of the Constitution relative to weapons needed for defending oneself against a home invasion but not against government tyranny. That's pretty result-oriented judging and not terribly strict to any original construction.

One wonders what "modern militia" Blumner has in mind, that we can judge the appropriate type of arms which come under the protection of the Second Amendment.

Contrary to her claim that there "is no cohesive logic" in Scalia's argument, the originalist position notes that the right applies to common weapons and should be protected because of the need for local protection (local militia). As robbers would tend to use common weapons, common weapons serve as an adequate protection. There is typically no need to use nuclear weapons to obliterate a cat burglar.

The Second Amendment has always put me in a quandary since the framers' purposes for it inevitably leads to an open floodgate of weapons ownership.

That is Blumner's tacit admission that the only way around the Second Amendment is wholesale reinterpretation. Just not Scalia's! Sauce for goose not sauce for gander!

But Scalia's opinion was not an honest attempt at sorting this out. It was a sophistical, political decision of just the type that he rails against.

And this is Blumner's tacit admission that she views Scalia's opinion as the same type of decision, in principle, as decisions she supports! Unless, of course, she can imagine an originalist justification for a decision like Roe v. Wade.

That is the irony that trips up liberals like Blumner. They don't need any originalist justifications for their Supreme Court justices. A political decision is just fine. But not if the other side does it.

Blumner's argument amounts to a tu quoque ("You, too!") fallacy. She uses her inept analysis of Scalia's opinion to argue that Scalia is inconsistent with his own principles. But even if she is correct, which she is not, Scalia's method would be consistent with Blumner's principles. Speaking of dishonest attempts to sort this out.