Posted by: Jay | March 20, 2008

Holy Crap!

I felt like Ray Barone’s father when I read this piece at Slate. Talk about your hit pieces. Is there any way to revoke a JD in law? Because after reading this dreck, I would imagine Dahlia Lithwick’s professors at Stanford would deny even knowing her. Aside from her obvious ignorance of the constitution and history, she litters the piece with ad hominem attacks against Justices Kennedy and Scalia as well as Chief Justice Roberts. There’s a lot to go over:

But who knew that a case testing the scope of the Second Amendment’s “right to bear arms” would smoke out a secret side of Justice Anthony Kennedy? A side so intensely protective of his right to self-defense that he makes—as I count—four separate references to some mythical “remote settler” who—at the time of the framing of the Constitution—would have needed a gun to “defend himself and his family against hostile Indian tribes and outlaws, wolves and bears, and grizzlies.”

Actually, Justice Kennedy’s reasoning was quite simple. If the term “bear arms” was a military term, then the government could have prohibited a settler (who unlike Lithwick claims is anything but ‘mythical’) living in a remote area from using his guns for the purposes of self defense.

It continues:

The constitutional question is whether that first clause limits the right to bear arms to a citizen militia, or whether the militia language represents a bit of constitutional phlegm standing between you and your full-throated right to bear arms.

The snark about ‘phlegm’ and ‘full-throated’ is nothing but a dismissal of the notion that the two clauses are separate.


Dellinger opens by whooshing us back in time to the framers, who, he says, used the words “bear arms” to mean “rendering a military service.” Chief Justice John Roberts immediately asks why the framers wrote “the right of the people” if they merely meant “the right of the militia.” Justice Kennedy spoils any suspense by telling Dellinger, in the form of a question, that he has no problem “de-linking” the two clauses to read the first as “reaffirming” the right to a militia and the second as enshrining a right to bear arms. Justice Antonin Scalia does Kennedy one better and contends that the two phrases “go together beautifully.” That’s five votes to create a fundamental right to bear arms, only eight minutes into the argument.

No, stupid. Not create. The fundamental right already exists. What they are doing is indicating they will protect. Protect that right. Good Lord.

Dellinger replies that the handgun ban is only on “one kind of weapon that’s considered especially dangerous,” to which Roberts retorts, “So if you have a law that prohibits the possession of books, it’s all right to ban newspapers?” Dellinger replies that the rifles and shotguns permitted under the D.C. ban are sufficient to carry out the purposes of the gun owner.

This is nonsense and either Dellinger deliberately attempted to mislead the court or wasn’t fully versed in the DC statutes. According to the laws in Washington DC, the moment a person puts a rifle or shotgun into a state where it is loaded and ready to fire (ie, functional), they have broken the law. It does not matter if they are doing so for self-defense. While a jury most likely wouldn’t convict, the fact is the person can still be arrested and would likely be subject to civil suits. It’s obvious that Lithwick doesn’t know either.

Paul Clement has 15 minutes to represent the part of the Bush administration that isn’t insane

Translation: Dick Cheney is insane for signing on to a brief filed by members of Congress in support of Heller.

Dellinger offers up a rebuttal that’s all triple Lutzes and camel spins.

I’m not sure if that is a compliment or what. To me, Dellinger offered up a lot of sizzle, but no steak.

Dellinger refocuses the court on its alleged priorities by reminding them that this is a case about “local legislation.” He reminds Kennedy that he of all people would hate a “national government that sets a single standard for rural and urban areas, for East and West, North and South,” and that the right to own guns causes “disputes among experts” such that the courts should hang back and allow the local legislatures to thrash it out.

Riiight. Yet, restrictions on abortion, something not even specifically mentioned in the constitution deserves judicial review without question, but violations of second amendment rights? “Oh just let the local legislatures handle it!” Do these people even realize why we have a judicial branch of government?

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.

Before she said ‘create’ and now she says ‘identify.’ To-may-to, to-mah-to. Whether she means the same thing, she’s wrong either way. there’s nothing to ‘identify.’ It’s already there. And I weep for the poor judges who are going to have to do some work in an area of civil rights not related to gender, sexual preference or race.

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.

Again. I won’t repeat what everybody knows needs to be said.

And while they don’t seem much concerned about how the judges will manage it, they’ve just about ensured that judges around the country will soon be ruling in gun cases the way they used to rule on speeding tickets.

And once again, I pity the poor judges. She sounds like some Klan guy would have sounded writing about how the Supreme Court would see to it that judges around the country would have more work to do in light of their decision in Brown vs. The Board of Education.

This piece is disgraceful.



  1. I thought it was amusing that the rant yammered on about federalism. Hey, Spark, DC is not state but is under the purview of congress/feds.

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