Colin McNickle at Large

More intellectual dishonesty on guns

By Colin McNickle
Sunday, December 15, 2002

“Intellectual dishonesty” is a phrase I tend to use a lot in writing about the liberal left. And both have been running amok since Dec. 5.

That’s the day a three-judge panel of the 9th U.S. Circuit Court of Appeals ? the most liberal in the nation and the appellate court most often overturned by the U.S. Supreme Court ? opined that the Second Amendment does not guarantee an individual right to bear arms.

“(I)t is (the) collective rights model which provides the best interpretation ? ,” Judge Stephen Reinhardt wrote for the unanimous tribunal sitting in, predictably, San Francisco. The Second Amendment protects only the right of states to organize and maintain militias (“national guards” in modern parlance), the court held in a case (Silveira v. Lockyear) challenging a California law restricting the sale and ownership of semi-automatic guns.

The ruling, running nearly 90 pages, is an expansive, pseudo-scholarly look at not just federal court cases that have addressed the Second Amendment (they are, regrettably few and far between and regularly misinterpreted) but an attempt to divine something liberals traditionally have been loath to do ? the Founders’ original intent.

Loath to do, I note, because liberals regularly insist that the Constitution and its Bill of Rights are “living” documents, designed to “evolve” with the times (and not necessarily through the Constitution’s only acceptable evolutionary process ? amendment); original intent seldom much matters.

As this very same Judge Reinhardt once noted in a speech before law students at George Washington University, “Liberal judges believe in a generous or expansive interpretation of the Bill of Rights. We believe that the meaning of the Constitution was not frozen in 1789. That, as society develops and evolves, its understanding of constitutional principles also grows. We believe the Founding Fathers used broad general principles to describe our rights because they were determined not to erect, enact a narrow, rigid code that would bind and limit all future generations.”

Except in matters involving guns, I can only suppose.

Or as Balint Vazsonyi, director of the Center for the American Founding, told The Washington Times last week, “The Founding Fathers didn’t use broad general principles. They wrote a Constitution of laws. ? (T)hey specified rights. Judge Reinhardt’s description of rights ? reveals either that he has not the slightest idea of what rights are, or that he has taken it upon himself to redefine the concept of rights as well as the U.S. Constitution.”

Silveira offered the 9th Circuit a chance to respond to the exact opposite conclusion reached last year by the 5th U.S. Circuit Court of Appeals in New Orleans (U.S. v. Emerson). “A textual analysis of the Second Amendment supports an individual right to bear arms,” the court found. Boom. Period. Soon after, the Justice Department formally sided with the latter interpretation ? the clear original intent of the Founders ? as the position of the U.S. government.

Thus, the stage has been set for the ultimate showdown ? a contemporary definitive ruling from the Supreme Court on the true nature of the Second Amendment. I say “contemporary” because the high court indeed has definitively affirmed, in either direct finding or footnote, the individual right to bear arms at least thrice ? in Scott v. Sanford (1859), a.k.a., “the Dred Scott Case;” in Miller v. U.S. (1939), the case regularly twisted by liberals to extract the exact opposite conclusion that was reached; and in Lewis v. U.S. (1980), in which the court cited the right of law-abiding citizens to bear arms as not being proscribable.

Oh, by the way, one of the 9th Circuit’s “scholarly” citations comes from former Chief Justice Warren Burger in which he labels as “a fraud, I repeat the word ‘fraud,’” the traditional view that the Second Amendment guarantees an individual right. The source? Not a court case but ? are you ready for this? ? a 1990 Parade magazine article. Egads.

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All of this said, the ruling evoked some predictable editorials in the liberal media.

“(Judge) Reinhardt’s timely opinion, replete with historical citations, makes a credible argument that (the individual right to bear arms) was not what the Founders intended,” opined the San Jose Mercury News.

“Credible”? Incredible.

But by far the absolute worst commentary, though an exemplary example of the intellectual dishonesty that I spoke of at the outset, came in, yes, you guessed it, the Toledo, Ohio, Pink-Gazette (“Pink,” I repeat yet again to offer context, because it once chided Sen. Jesse Helms for saying “no” to communism).

The collectivist view is the “traditional” reading of the Second Amendment, it opined. Whose? The British? The P-G, as so many have before it, twisted Miller to dovetail with its anti-gun ideology. And it added that “Judge Reinhardt’s interpretation is the mainstream view” and that of Attorney General John Ashcroft the “innovation.”

“Legal ricochet,” was the headline on the editorial. “Rejecting Bush’s view of the Second Amendment,” was the subhead. In the interests of accuracy, the P-G should have substituted “the Founders” for “Bush’s.” But, hey, why let the facts get in the way of pressing your liberal case for the Socialist States of America.

The Emerson case? What Emerson case?

Save for the 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”), the Bill of Rights doesn’t guarantee rights to the states, it guarantees very specific, enumerated rights to individuals, you Blockheads.

And never mind, as UCLA constitutional law professor Eugene Volokh reminds, that 44 of 50 state constitutions have their own explicit guarantees of the right of the individual to bear arms, Pennsylvania included.

“Traditional”? “Mainstream”? Shorthand, with the word “liberal” lopped off.

This isn’t simply intellectual dishonesty ? this is Orwellian propaganda.

Oh, can you imagine how insufferable the Pink-G editorialists will be when the Supreme Court cuts these liberals’ legs off, knocks them on their Marxist fannies and rules that the Founders meant what they wrote? They’ll be absolutely apoplectic.

Colin McNickle is the Trib’s editorial page editor.