The Dying Constitution

 

By David K. Shipler 

              Conservatives like to deride liberals who believe in a “living Constitution,” which has stayed alive by applying its core principles to the evolving conditions of society. But the opposing view, that the Constitution must be interpreted only as the Framers supposedly intended, will not conserve anything. It will, if taken to the logical end now pursued by Republican extremists in legislatures and courts, strangle the founding document by cutting it off from the present, from the oxygen it needs to nourish the rights it is meant to preserve.

              The radicals on the right have formed a continuum of anti-constitutional movements that run from street thugs to election workers to politicians and to Supreme Court justices. Paradoxically, they cite the Constitution as their guide: the January 6 insurrectionists shouting their affection for a Constitution they’d obviously never read (in particular the Twelfth Amendment on Congress’s vote-counting process). Republican state legislatures organizing myriad ways to undermine the next elections. And the Supreme Court justices who are orchestrating an insurrection of their own by twisting the Constitution to fit their personal ideologies.

The “conservatives” in robes say they are keeping the Constitution as written, but they are actually making it all too malleable. They are turning it into a blank check for whatever policy they wish to inflict on American citizens, whether erasing women’s abortion rights, establishing in the public square a state-sanctioned Christianity (not Islam, for sure), or expanding practically everyone’s right to carry deadly weapons. All this has provoked accusations from the left that the Supreme Court is forfeiting its legitimacy, but the larger danger may be to the legitimacy of the Constitution itself.

Guns: Working Around the Second Amendment

By David K. Shipler

            Please forgive the cynicism, but here’s a prediction: For all the heartfelt hand-wringing and passionate calls to action since the Newtown massacre, Americans will not be made safer from gun violence. After a year or five years (let’s give Congress plenty of time), the country will still be awash in firearms, they will still be available to many untreated mentally ill people, and mass shootings will still occur on occasion, probably even in schools. Guns exist in a perfect storm of politics, law, and culture not easily revised.

In the most optimistic scenario, the Second Amendment might serve as an asset to those favoring modest controls, for under recent Supreme Court rulings, gun ownership is no longer jeopardized. Recognizing an individual right to bear arms rather than one based only in state militias, the thin conservative majority has effectively eliminated what the National Rifle Association and its supporters saw as the dire threat that all guns would eventually be outlawed and taken from the hands of law-abiding citizens.

That cannot happen as the Second Amendment is now interpreted. In both District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), a 5-4 majority ruled that the right to keep a loaded gun at home was protected by the Second Amendment. Whether the right extends to handguns outside the home remains uncertain until the justices consider cases that have been decided differently in lower courts.