Why indeed? The Supreme Court recently refused the opportunity to consider a raft of lower court decisions regarding both the Second Amendment and the “qualified immunity” extended to public officials—most “controversially” (that is to say, most inappropriately), as applied to the police— protecting them against law suits for their actions—like blowing someone’s head off for no good reason—unless it’s been “clearly established” by prior court decisions that, e.g., blowing someone’s head off for no good reason is, you know, wrong. For that, the good justices who voted against considering any of the cases, aka “denial of certiorari”, received an earful from that fightin’ originalist/textualist, Clarence Thomas.
On both issues, Clarence is down with my quondam comrades over at Reason, demanding a powerful reassertion of our Second Amendment-guaranteed right to pack heat in any goddamn public place we choose, as well as our right to sue the police when they get medieval on our ass for no good reason. I myself am emphatically down with the latter and cool to the former.
Reason is host to the “Volokh Conspiracy”, a rag-tag group of generally libertarian lawyers, the most reliably irritating of whom, by my standards, is Josh “Two-Gun” Blackman, a defiantly shoot ‘em up law professor of South Texas College of Law Houston, who fills us in loudly on the latest betrayals of the shoot ‘em up heritage of Justice Nino “Sure Shot” Scalia,1 author of the Court’s majority opinion in D.C. v. Heller (2008), declaring that the Second Amendment recognizes a natural right of self defense that cannot be invaded by the federal government, which was vaguely “incorporated” into the 14th amendment and thus applied to the states by McDonald v. Chicago (2010), though not to Josh’s satisfaction.
Josh’s frustration with the Court’s lily-livered approach to affirming a man’s gol-durned right to flourish his gol-durned fahahms any gol-durned place he pleases has only grown over the years, and he has an articulate but lonely ally in Justice Clarence “Shot Gun” Thomas. In his post on the denial of cert, Josh quotes from a dissent that Thomas filed:
The text of the Second Amendment protects "the right of the people to keep and bear Arms." We have stated that this "fundamental righ[t]" is "necessary to our system of ordered liberty." McDonald v. Chicago (2010). Yet, in several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a "justifiable need" or "good reason" for doing so. One would think that such an onerous burden on a fundamental right would warrant this Court's review. This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens' Second Amendment rights, the Court simply looks the other way.
It is entirely appropriate for my purposes that Thomas would bring in a reference to the Court’s famous/infamous decision in Roe v. Wade, first because a great many supporters of Roe would insist that the Court has been at least as persistent in ignoring state infringements on the right to abortion as it has been (according to Justice Thomas, not to them) with regard to Second Amendment rights. That’s because (according to me) both Heller/McDonald and Roe were very poor decisions, which the Court, lacking (perhaps wisely, from a political perspective) the courage to overturn outright, frequently tries to ignore, allowing states the freedom to legislate that the Court’s original decisions would seem to deny them. In fact, this pattern has been far more pronounced in the case of Heller/McDonald.
That’s because, again, according to me, Heller was very largely decided in an fit of pique by Justice Scalia in reaction to the Court’s earlier decision in Lawrence v. Texas (2003) that recognized a guy’s right to a blow job, the only appropriate response to this outrageous stamp of approval given by the Court to the “so-called homosexual agenda”, as the good justice so disdainfully described it, being the recognition of a guy’s right to a Glock.2 So that the present-day Court’s denial of cert in ten Second Amendment cases is nothing more, or less, than a passive-aggressive refusal to actually implement Nino’s pique, the second shoe (or maybe the first, since I don’t know the order in which the decisions came down) falling on the poor man’s deceased head this month, after the Court decided, in Bostock v. Clayton County, that federal “Title VII” prohibitions of discrimination on the basis of sex extend to non-hetero folks as well as us straights, a decision that I commemorated in a post titled “The United States Supreme Court is dancing, dancing, dancing. The United States Supreme Court is dancing, dancing on Nino Scalia’s grave.”.
My ultimate bone to pick with anyone who defends Heller is the notion that there is a fundamental right of self defense as a matter of “natural law”, because, as I have said many times, most extensively here, there is no natural law. This lack is perhaps most glaringly evident when the conversation turns to firearms, because, of course, virtually nowhere in the world other than the U.S. is the notion that there is a natural law right to firearms considered other than barbaric. A natural law whose acceptance turns on geography is not natural.3
On the other hand, I am most happy to give Justice Thomas (remember him?) an honest thumb’s up for his dissent in Baxter v. Bracey, criticizing the Court’s denial of cert with regard to the disastrous doctrine of “qualified immunity.” Both Reason and the Volokh Conspiracy have been recording the toll in deaths, destruction, and shattered lives by this judge-made doctrine that absolves the police from responsibility for grossly criminal acts over and over again, protected, it seems, by both the “conservative” desire to encourage aggressive law enforcement and “liberal” desire to empower government, both desires equally corrupted and corrupting. Reason has run dozens of articles describing the endless outrages that this noxious doctrine has rubber-stamped as acceptable behavior, using the Court-manufactured “clearly established law” doctrine—essentially treating the police as robots who have to be programed to understand that each of an infinite range of brutal acts is forbidden by the law. For example, if the police are told that it is wrong to beat handcuffed prisoners over the head with billy clubs, that doesn’t mean that they should be expected to know that it is also wrong to beat handcuffed prisoners over the head with baseball bats, because bats and billy clubs are two different things.
I must confess that I find it “interesting” that the one member of the Court who professes skepticism to the Court’s policeman-friendly gloss on what was once known as the Ku Klux Klan Act of 1871 is also the one member of the Court who is black. One would think that the “liberals” on the Court would be embarrassed to be outflanked on the left by Mr. Originalism. But apparently not.
1. Scalia, born in Trenton, New Jersey of immigrant parents, was (probably) not raised as an outdoorsman but, in my biased and censorious opinion, as an adult liked to indulge himself in a seignorial lifestyle, going quail-hunting with likes of Dick Cheney and other gluttons of privilege. He probably didn’t affect lederhosen and Alpine hats while decimating the wild fowl, but I like to believe that he did.
2. I have always found it “interesting” that in his majority opinion for Heller, Scalia 1) found a constitutional right of self defense via the Second Amendment, 2) found that this right necessarily included an indefeasible right to ownership not just of a firearm but a hand gun (“necessary” for close range defense), and 3) found that this right to ownership of a hand gun included the right to ownership unencumbered by any of the trigger lock mechanisms mandated by the Washington, DC ordinance in question, rendering it entirely nugatory, without overturning any federal restrictions on firearms previously approved by Congress; so that this judicial demolition derby was conducted entirely at the expense of the DC government, almost as if the good justice had it in for those liberal DC folks, who often appeared suspiciously friendly to the “so-called homosexual agenda”. (Scalia lived in the ritzy suburb of McLean, Va.)
3. Sherlock Holmes makes a similar remark regarding the power of demons in somewhere in the opening chapters of the Hound of the Baskervilles.
