JUSTICE SCALIA BITES THE TAFFY
My liege, I did deny no prisoners.
But I remember, when the fight was done,
When I was dry with rage and extreme toil,
Breathless and faint, leaning upon my sword,
Came there a certain lord, neat, and trimly drest,
Fresh as a bridegroom; and his chin new reapt
Show’d like a stubble-land at harvest-home;
He was perfumed like a milliner;
And ‘twixt his finger and his thumb he held
A pouncet-box, which ever and anon
He gave his nose, and took’t away again; -
Who therewith angry, when it next came there,
Took it in snuff: - and still he smiled and talkt;
And as the soldiers bore dead bodies by,
He call’d them untaught knaves, unmannerly
To bring a slovenly, unhandsome corpse
Betwixt the wind and his nobility.
With many holiday and lady terms
He question’d me; amongst the rest, demanded
My prisoners in your majesty’s behalf.
I then, all smarting with my wounds being cold,
To be so pester’d with a popinjay,
Out of my grief and my impatience,
Answer’d neglectingly, I know not what, -
He should, or he should not; for he made me mad
To see him shine so brisk, and smell so sweet,
And talk so like a waiting-gentlewoman
Of guns and drums and wounds, - God save the mark! –
And telling me the sovereign’st thing on earth,
Which many a good tall fellow had destroyed
So cowardly; and but for these vile guns,
He would himself have been a soldier.
Henry Percy [“Hotspur”], “Henry the Fourth Part I,”
Act I, Scene III. William Shakespeare, First Folio, 1623
Comes now the Associate Justice of the United States Supreme Court, Antonin Scalia,
disappointed and disillusioned at not having been elevated to Chief Justice, as
he was promised by Bush-Cheney for putting Bush in the White House in 2000,
instead of turning the election to the House of Representative, as the
Constitution bade him do, now, in the face of unspeakable tragedy engendered by
his led decision (urged on by Hon. Clarence Thomas) declaring that the 2nd
Amendment betokens a PERSONAL right to keep and bear arms seeks factitiously to
soften that decision by asserting in an interview [hitherto ruled impermissible
for a sitting justice to comment on current cases] that perhaps there still are
bounds that may be set legislatively to control the wanton and reckless sale
and use of guns in this country.
Did no one inform him that declaring such a personal right to keep and bear arms
seriously implies the right to use such arms against unoffending human
beings? Was he misled by his clerks
into thinking he could not invalidate the District of Columbia’s virtual ban on
handguns by declaring the statute too broad, thus violative of a citizen’s
rights to liberty and property under the 5th Amendment? Had he no empathy for law enforcement
officers whose every encounter with civilians has become ominously pregnant
with the threat of violence? Is he so
blind to the virtues of liberalism [as in “liberal western democracy”] so as
not to realize that the increased use of force against law enforcement officers
correspondingly diminishes their sensitivity to civil rights and civil
liberties: instilled in them so cautiously and with such dedication by their
supervisors in law enforcement who have sought for sixty years to raise law
enforcement to the level of a respected profession, under whose care the trial
of suspects should occur in courthouses, not on the streets and in back rooms
of police stations?
Can he be so ignorant as to not understand the ephemeral line between suicide and
homicide that eliminates barriers to calls upon young black men to shoot at
whoever they see in a non-existent mirror?
Has he learned nothing from the transition witnessed recently and
increasingly of men who feel that they cannot support their families, who used
to just run away, but are now going out to buy guns and ammunition, returning
home and killing their wives, their children and themselves? Like the wonderful chef on the food channel,
should we all now, warmly and graciously ask, “How good is that?” Does he, perhaps, exult in the “in-your-face”
attitude of the NRA that held a national celebration of gun owners’ rights just
a few miles from and a few weeks after Columbine?
Let’s examine the perverse, esoteric logic of this so-called constitutional
scholar. He says that analyzing the
right to keep and bear arms must comport with the understanding of those terms
by the drafters of the 2nd Amendment. Thus, he adds with all (and I mean all) the cleverness he
can muster, the right to bear arms means the right to carry arms, so he is
comfortable ruling that the 2nd Amendment does not guarantee a right
to lug a cannon around your community.
How deft! How amusing!
Yes, yes, we’re on the right track. So what
did the founding fathers mean by “arms?”
Huh? Attendant upon the
commencement of the War of 1812, Eli Whitney conceived the innovation known as
“interchangeable parts.” That allowed
for rifles to be mass produced and quickly repaired. So when the framers of the 2nd Amendment said “arms,”
were they somehow anachronistically including not only handcrafted muskets, but
also mass-produced weapons designed for war?
Today, we have handguns that can kill 25 people in a minute and larger
weapons that one can carry or “bear” that can kill 100 people in a minute.
Let’s get back to the actual text of the 2nd
Amendment: A well regulated Militia,
being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.
Napoleon Bonaparte once observed, “Constitutions should be short and
vague.” Indeed, there has been
universal agreement that our Constitution wastes no words. So why does Justice Scalia so studiously
avoid the connection between State militias and the right to keep and bear
Examined another way, our local law enforcement officers are the counterparts of the
militias of yesteryear. Three or four
felons, each armed with two or three guns, and an infinite supply of
ammunition, can hold the police force of any village, town, mid-sized city, or
neighborhood at bay with their firepower for hours, perhaps days on end. The increased firepower of such criminals;
revolutionaries; gang members or madmen increases not only the risks to the
public at large, but also increases the effectiveness and frequency of hostage
taking. As a society, if nothing
else, Justice Scalia, do you really believe the Founding Fathers would have
disfavored preventive measures to diminish the warfare scaled destructive and
lethal capabilities of potential wrongdoers?
Ebullient in his sparkling wit and cheering
sense of humor, Justice Scalia generously suggests that in the 18th
Century, there were limits on the possession and use of weapons and that new
legislation limiting or governing or registering firearms will now be measured
against those standards. Is that what
interpreters of a “living Constitution” are supposed to do – tell the cop that
if he couldn’t arrest someone two hundred years ago for the same offence, he
can’t arrest him today for an even more egregious threat to peace and order?
Justice Scalia knows that in his lifetime, and even beyond the rule against
perpetuities, the Court is not going to be called upon to rule on new laws
affecting guns because the Supreme Court itself has made such enactments
For this national polity to survive, we MUST, therefore, repeal the 2nd
Amendment, once and for all!
Harvard Hollenberg is a writer and an appellate lawyer in New York City.
© Copyright Harvard Hollenberg 2012. All rights reserved.