CHAREN: Supreme benchmarks

By Mona Charen | Monday, June 30, 2008

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COMMENTARY:

In the United States today we no longer enjoy the rule of law but instead the rule of lawyers - robed lawyers with the exalted title "justice" - but still unelected lawyers enacting their own policy preferences.

Before their common-sense decision in the Second Amendment case, a different complement of justices (Justice Anthony Kennedy siding with the liberals) demonstrated what a flimsy hold the words of the Constitution have on our jurisprudence.

In fact, when you consider the court is pretty well divided between four liberals and four conservatives with Justice Kennedy swinging from one side to another as the spirit moves him, we now enjoy a Republic of Kennedy. All this fuss and bother about the presidential race is misplaced. The most powerful man in the land is someone most Americans couldn't pick out of a lineup.

In Louisiana v. Kennedy, the majority held unconstitutional a statute that permitted the death penalty for rape of a child under the age of 12. In the case at bar, the child was an 8-year-old girl who was brutally raped by her stepfather. After feeding her a cocktail of drugs dissolved in a glass of orange juice, the defendant attacked the girl so brutally that, as the decision records: "An expert in pediatric forensic medicine testified that L.H.'s injuries were the most severe he had seen from a sexual assault. ... A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery."

Explaining why the statute violated the constitutional prohibition against "cruel and unusual" punishment, Justice Kennedy declared that, "Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule." Will someone please ask Justice Kennedy and his liberal fellows this question: If it's all a matter of "evolving standards," then why pretend to abide by a written document at all? And whose evolving standards?

As Justice Samuel Alito establishes in a devastating dissent, Justice Kennedy distorts the historical record to bolster his claim that the United States is moving toward a "national consensus" against capital punishment in such cases. In point of fact, the opposite is more nearly the case, but the court's own previous rulings have prevented the people from fully enacting their policy preferences. "When the law punishes by death," Justice Kennedy wrote, "it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." So that's it. Preacher Kennedy is not comfortable. And, as Justice Alito notes, "Although the court has much to say on this issue, most of the court's discussion is not pertinent to the Eighth Amendment question at hand."

Justice Antonin Scalia's majority opinion in District of Columbia v. Heller, by contrast, is all about - guess what - the intent of the Founders. The distraction of the "militia" clause in debates over the Amendment's meaning is now eliminated. Through exhaustive historical examples, ranging from the Glorious Revolution in England to recent precedents, the majority opinion shows that the introductory clause referring to militias does not limit nor vitiate the "right of the people to keep and bear arms."

When the First, Fourth and Ninth Amendments speak of "the right of the people" to free speech and to be free from unreasonable searches and seizures and so on, no one interprets these as collective rather than individual rights. Nor is it consistent with history or logic to argue that "keep and bear arms" referred only to military uses. The Founding generation did fear that the federal government might attempt to tyrannize them by confiscating their weapons and thereby disabling their militias. But that was not the only reason they sought to codify the right to bear arms. They saw themselves vindicating a pre-existing right, a right "inherited from our English ancestors" as the Supreme Court put it in 1897.

As the court was careful to clarify, the existence of an individual right to keep and bear arms does not mean the right is absolute. Time, place and manner restrictions have always been recognized even with respect to sacred First Amendment rights. But the hurdle states will have to clear to regulate gun ownership by law-abiding citizens just got inestimably higher.

This is good for the nation as a whole (just pick up "More Guns, Less Crime" by John R. Lott if you doubt it), but all of it is due to one vote on the court in the Republic of Kennedy. Remember that in November.

Mona Charen is a nationally syndicated columnist.

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