NEW YORK—A week ago, Justice Anthony Kennedy was a liberal hero. Joining the court's four liberal jurists, he declared that while 9/11 may have changed everything, it didn't change the Constitution. Despite statements by the Bush administration to the contrary, Guantanamo is not a legal no-man's land. Prisoners of war being held at America's Devil's Island now have the right to challenge their detention in federal courts.
"Thank God," an editorial cartoonist friend told me after Kennedy cast the deciding vote in a 5-4 decision restoring habeas corpus. "We were one vote away from fascism."
Antonin Scalia's dissent—"[granting Guantanamo detainees the right to a fair trial] will almost certainly cause more Americans to get killed"—was widely ridiculed as baseless and hysterical.
What a difference a week—and your politics—make.
Then Kennedy cast the swing vote in another major decision. Declaring Washington, D.C.'s, handgun ban unconstitutional, he accepted the National Rifle Association's argument that the Second Amendment's reference to "a well-regulated militia" is not a conditional clause. Wherever they live, Americans are indeed entitled to purchase and keep a handgun.
"What an idiot!" my friend e-mailed me. "Doesn't he get it? Kids are going to die!" Shades of Scalia; irony included free.
"A la carte" airline pricing—$2 for a Coke, $15 to check a bag, $30 for a coach seat that sucks 95 percent as much as the regular ones—pisses people off. When it comes to constitutional questions, however, we Americans like to pick and choose our favorite parts of the Bill of Rights like items from a Chinese menu: one from column A, another from column B.
Liberals revere the right to free speech enshrined in the First Amendment. The right to bear arms, not so much. With conservatives, it's the other way around. Sometimes they clash over the meaning of the original 10 amendments. It's freedom of, not from, religion, say right-wingers. Freedom from, argue advocates of the separation of church and state.
The recently concluded Supreme Court session highlights Americans' unique refusal to accept the Bill of Rights in toto. Republicans decried Kennedy v. Louisiana, which struck down the death penalty for someone convicted of raping a child. They applauded the court's approval of an Indiana law requiring voters to show ID at the polls.
Reactions to Supreme Court rulings are rarely related to whether or not the nine justices correctly interpreted the Constitution. They're political. Law-and-order conservatives like their justice Taliban style, tough and vengeful. Thus their dismay that capital punishment for rapists could be deemed cruel and/or unusual. States with GOP-dominated legislatures like voter ID laws, not because they think they don't violate the equal protection clause, but because they tend to reduce turnout among Democrats.
Partisanship is healthy. Creating your own Constitution around your personal stand on the issues is un-American.
As a holistic advocate of the Bill of Rights, I agree with the D.C. gun ban ruling. When the Constitution was signed in 1787, all land-owning white men—the class of citizens whose voting rights it guaranteed—owned (or were allowed to buy) guns. A "well-regulated militia" was usually an ad hoc affair, a group of guys called up for up to a year (often less) to respond to the threat of, for example, an Indian attack.
Today, the Bill of Rights applies to everyone, even illegal immigrants. Moreover, while militias have gone the way of the musket, it's a fair bet that the government would ask ordinary citizens to use personal firearms to defend U.S. territory in the event of an invasion—i.e., form militias. Why, then, shouldn't the 18th century right to own a gun, which applied to everyone covered by the Constitution at the time, apply to everyone now?
There's also a practical argument. As history proves, every government falls. Every nation gets invaded. No one knows when it will happen in any given case, but thus far it's proved inevitable. When the U.S. government turns against its people, gun nuts will be in a far better position to resist than the double-decaf-latte types on the Upper West Side of Manhattan. We'll all be praising Charlton Heston's memory when foreign troops are marching down Broadway.
But practical arguments aren't legal, much less constitutional, arguments. Either you agree with the Bill of Rights—all of it—or you don't.
If liberals think the right to own a gun is antiquated, if they think the ability to resist future government tyranny is less important than reducing the number of young men getting gunned down, they have a perfectly defensible argument. And they ought to do something about it. They should convince two-thirds of the states to ratify a constitutional amendment abolishing or amending the Second Amendment. Crafting an argument based on the principle around 18th century grammar and punctuation is tacky and embarrassing.
Ted Rall is the author of the book Silk Road to Ruin: Is Central Asia the New Middle East?, an in-depth prose and graphic novel analysis of America's next big foreign policy challenge.