Dick Morris on the Supremes’ Gun Case

I generally enjoy Dick Morris’s insights about politics because, even if you don’t agree with him, he is a master tactician.  But when he writes about law, he is often out of his element, as this column in the Hill demonstrates right from the opening sentence (italics mine):

The nine august justices of the United States Supreme Court — or at least the five conservative Republicans — chose the wrong time to make a sea change in constitutional law, admitting the Second Amendment to our pantheon of civil liberties.

By demonstrating how willing they are to toss aside decades of jurisprudence in pursuit of a conservative agenda, they sent a chill into the souls of women all across the nation and resurrected fears that Roe v. Wade is next on the chopping block. At a time when the GOP should try to assuage the concerns that lead women to vote Democratic by 10 points more than men do, the Supremes have escalated the angst on which Democrats can and will play in the run-up to November.

Where to begin?  Would that there were five conservatives, Republican or Democrat, on the Court.  In fact, there are seven Republicans, but only four conservatives. 

Second, a sea change that has toss[ed] aside decades of jurisprudence in pursuit of a conservative agenda?  What is he talking about?  He says he’s talking about the ruling in Heller, the gun case (which he calls “the [Justice] Alito opinion striking down the D.C. handgun ban” though it was actually written by Justice Scalia).  But there’s no sea change because there was no jurisprudence to speak of.  Almost all the Lefty pundits who have weighed in on this have conceded that there is not abundant Second Amendment caselaw.  Instead, their pitch has been that the Court has settled (incorrectly, by their lights) a question that — precisely because of the lack of any Supreme Court authority — has been in doubt for decades.  (In truth, all the Court has said is that the Second Amendment means what it says.  That was in “doubt” only to the extent that the commentariat took it upon itself to doubt that the Amendment means what it says:  it is “the right of the people to keep and bear Arms.”)

Third, if the gun ruling is likely to be so unpopular and preserving gun rights is such a loser, why did Obama suddenly decide to be in favor of the Court’s ruling?

Fourth, Heller was decided not in a vacuum but in rough conjunction with Kennedy (invalidating capital punishment for child rapists) and Boumediene (establishing constitutional habeas rights for alien enemy combatants).  No one who followed the last well-publicized weeks of the term (or, for that matter, the last half-century of the Court’s rulings) could conceivably think the Court is determined to pursue a conservative agenda.

Fifth, the comparison to Roe is way off the mark.  As I said, there is a dearth of gun jurisprudence.  By contrast, as Ramesh, Ed Whelan and others have detailed, the Court has repeatedly upheld abortion rights even as it has conceded some of Roe’s many jurisprudential flaws.  And anyone who actually follows this stuff knows that Justice Kennedy, in the majority in the gun case, has worked hard to preserve the right vouchsafed in Roe.

Sixth, the gun case did not purport to invalidate any state laws and left miles of space for gun control regulations — such, I suspect, was the price of getting Justice Kennedy’s vote.

Seventh, Morris asserts: 

[T]he sight of the Supreme Court shattering precedent and finding a right to bear arms by a simple 5-4 vote makes it apparent how powerful the Court is and how important this election will be in determining its future direction. These calculations cannot but strengthen the Democratic Party and its appeal to liberals and women anxious to preserve Roe as the law of the land.

Ramesh and others may have better informed insights than I have about how anxious women are to preserve Roe as the law of the land, but I suspect it’s not nearly as one-sided as Dick suggests.  Indeed, Morris undermines his own argument by acknowledging that “were Roe repealed, most states, including all the big ones — except possibly Texas and conceivably Florida — would affirm a state right to choose.”  Right, that’s why the prospect of a Roe reversal should not chill anyone’s soul:  If you put bombast aside, there’s not a woman in America who would not be able to get an abortion someplace if she really wanted to.

But that aside, I think the members of the public (as opposed to the commentariat) who are very concerned about the power of the Supreme Court feel that way because of the justices’ penchant for the latent discovery of left-wing pieties purportedly guaranteed by our Constitution.  Those people are more likely to be McCain voters than Obama voters.  Again, why does Dick suppose Obama felt he had to agree with the gun decision?  And disagree with the rape decision?

Morris has some thoughts on the enemy combatants, on which he’s done some important research.  I’ll try to discuss those in a separate post.