The result was the Dred Scott decision, surely the high court's worst ever.
It made slavery not just a peculiarity confined to part of the country but
legal everywhere, voiding the those hard-wrought compromises that had
managed to preserve the Union ever since its founding. And The War came. The
moral of this story: Some questions are best left to time, precedent and the
evolving standards of the common law.
It happened again in 1973, when the Supreme Court in its wisdom installed
abortion as the law of the land rather than leave so morally troubling a
question to the several states. Instead of resolving the issue once and for
all, the high court ignited it. The acrimony over abortion now has been
mounting for decades and shows no signs of abating. That tends to happen
when courts lose the sense of restraint that ought to mark prudent law.
Now the court has agreed to open another Pandora's Box. (Or, as an Arkansas
politician once put it in one of his wilder flights of rhetoric, a whole box
of Pandoras.) Never mind that for decades now the question of the Second
Amendment's root meaning has been left open while a consensus gradually
formed, namely that the individual's right to bear arms does not mean the
government cannot regulate that right for good reason.
To quote a balanced appellate decision back in 2001 out of the Fifth Circuit
(U.S. v. Emerson), the "Second Amendment does protect individual rights
(but) that does not mean that those rights may never be subject to any
limited, narrowly tailored specific expectationsŠ."
The ruling in Emerson upheld an act of Congress denying the right to buy or
carry a gun to someone who was under a protective court order for good
reason. In that case, the defendant had threatened his estranged wife.
The decision in Emerson made good sense - and good constitutional law. The
right to bear arms may belong to the individual, but that doesn't mean it's
an absolute right that trumps society's interest in saving life and
preserving the peace.
The court could have declined to review this appellate decision out of the
District of Columbia, and just left it standing. That way, the justices
would not have run the risk of handing down a landmark decision that could
overturn not just one bad law in the District of Columbia but sensible gun
laws throughout the Union. On the other hand, the court in its zeal for
clarity could undermine the fundamental right of all Americans to bear arms.
Here's hoping the justices will practice a much praised but less practiced
principle called judicial restraint, and recognize that every right,
including the right to keep and maintain arms, carries with it a
responsibility. And that government should protect not only our rights, but
our safety.
Some questions of abstract principle are better left unresolved rather than
resolved clearly - and wrongly. When it comes to making law, ambiguity is a
much under-rated virtue.
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