Three times I tried to write a post on Heller the day the decision came down, and three times the Great Magnet denied me. Why could this be? I am a proponent of ‘gun rights.’ I am a ‘fan’ of Justice Antonin Scalia, who kicked off Georgetown’s own Tocqueville Forum on its opening night with a typical speech [pdf] — expansive, casual, amusing, snide, cheeky, devastating, erudite, oracular, indifferent, robust, anti-democratic, pro-democratic — it was all enough to make you think, if only for a moment, that standing before you holding court (so to speak) was the world’s great heterodox, idiosyncratic conservative. Not that I’m only putting it thus because Heterodox Idiosyncratic Conservatives are the Dymaxion Cars of Our Generation. I read Scalia’s majority opinion in a fit of gusto; I found the reasoning tight, the logic compelling, the Wall-E like towers of compacted Anglo-American legal history dizzying yet granular in their vertical sweep and rambunctious majesty. I pulled quotes. I laughed out loud at footnotes 5, 13, 14, and 25 (and 6, for different reasons). Hell, I’m a law school graduate. I even dashed off a nimble endorsement, full of praise for Scalia’s great restraint in not openly ridiculing his fellow Justices (much). But the computer ate this, and I did not weep.
There is so much to love: the neat reaffirmation of Ginsburg’s relevant opinion, or the subpeplar outrage at Justice Breyer’s arbitrary and goofball “interest-balancing inquiry” (a creature with all the clarity and rigor of Casey‘s “undue burden” test). Yet nothing. I sat poised at laptop, fingers in proper position, and nothing came.
But I kept staring at that New York Times front page. You know the one: their nine portraits lined up on two sides, top and bottom, everyone in color, back to back the catchphrases faced each other:
The Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home.” — Justice Antonin Scalia
The majority “would have us believe that over 200 years ago, the framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.” — Justice John Paul Stevens
Now, I don’t own any guns. I won’t until I become a Virginia Country Gentleman or whatever. And I certainly don’t want the stateless citizens of Washington, D.C. to brandish yet more pieces in yet broader daylight. But Stevens is simply on the Good Ship Axiom when it comes to interpreting the Second Amendment, and what ‘the majority’ would ‘have us believe’ is precisely what is so — that the framers understood themselves as having no choice as far as the right to bear arms was concerned, choice coming down only to whether that right did or didn’t have to be inscribed on an extra sheet of paper so as to allay the fears of the Antifederalists, who would have run screaming for parts north, south, and west if Justice Stevens had, by some Homer- or Hayden Christensen-like power, appeared suddenly to deliver his dissent in their midst.
Stevens, you see, wants it easy. He wants Staples to send him a Constitutional Easy Button. He wants TOOLS, tools made available to unelected officials wishing to regulate civilian uses of weapons. Scalia, by contrast, doesn’t want tools. He wants elected officials to dig the earth of the law with their bare hands. I ruminated on this metaphor and flipped to the last page of the first section of that June 27, 2008 issue of The New York Times. And I found this:
This is not compassionate conservatism (which flattered the mind of the compassionate donor), it’s hard-work conservatism, which uses government to increase the odds that self-discipline and effort will pay off.
Given the red pen, I would’ve scratched out ‘mind’ for ‘heart’, but as it was my eyes kept skippety-skipping over that phrase “hard-work conservatism.” And I thought about the TOOLS that Justice Scalia reminded everyone (and DC lawmakers) about, the tools legislatures of all types can use to tightly circumscribe and control behavior which, by Constitutional Writ, cannot be absolutely prohibited. The Constitution makes us hard on ourselves. And so it should. Responsibility is not supposed to be convenient. Discipline is not an easy button, except in certain YouTube videos of Max Mosley [sorry, no longer available]. The genius of Heller is its recognition of our unenumerated right to make our lives more difficult — a right which shall not be infringed. In an America in which we are more on our own than ever in the anxious sense, so close yet so far away from Tocqueville’s soft despotism, this sort of conclusion is probably about as exciting as a glass of milk. But telling citizens to figure out how to control themselves without flatly banning handguns is actually, yes, slightly less mordant than telling them to figure out how to underwrite their medical needs without totally restructuring their health care system. There’s more hard work to be done there, but I suspect it’s of a slightly different sort — the Constitution being of course silent on individual mandates &c. Point is, at the meta level (woo hoo!), the hardest work involves sorting out different kinds of hard work, with gun regulation being of one kind and heath regulation being of another, and immigration regulation a third, and prostitution a fourth, and so on, and so on. In an age when we want one size to fit all for the good of the common manic-panic mind, this may seem like a half-empty glass of milk. To indulge in a moment’s optimism, my pitch is that it’s half full.
And that’s My Delayed Heller Reaction — 100% pun free.