The Roberts Court has shifted away from ideas necessary to enact policies on guns and mental health.
Thursday, January 24, 2013
As President Obama begins his second term, our hopes and expectations are shadowed by shooting tragedies whose nadir was reached with the deaths of so many children in Newtown. If these events have reinvigorated a conversation about gun regulation and access to mental health treatment, they must also ignite a discussion of political and constitutional values. Without the latter, the former will never come to pass.
Part of the problem is that our governance bodies are divided along such extreme ideological lines that any good theories on guns or health care are unlikely to come from them. When Mitt Romney said that 47 percent of Americans “believe the government has a responsibility to care for them… believe that they are entitled to health care, to food, to housing, to you name it,” he summed up the congressional divide and the sentiments of conservative Supreme Court justices who would like to do away with most entitlement programs of the 20th century.
As recently as 2008, Justice Antonin Scalia penned the opinion, in District of Columbia v. Heller, that upended two centuries of jurisprudence to hold that the Second Amendment grants an absolute right to individuals – rather than state militias – to keep and bear arms. If, moreover, the Centers for Disease Control or other federal agencies can’t gain access to data about guns and violence because the National Rifle Association insists that gun ownership falls within a “privacy” interest, then we avoid hard questions about how access to guns inflects bullying, suicide or domestic abuse, and we are doomed forever to airy discussions about video games. And if Jared Lee Loughner and James Holmes, both of whom suffered from undiagnosed schizophrenia, are treated by our criminal justice system as rational actors rather than as wake-up calls about the urgent need for improving our public health system, then we ensure that history will repeat itself.
WE ENSURE THAT HISTORY WILL REPEAT ITSELF
Conservatives on the U.S. Supreme Court, Stanford law professor Pamela Karlan writes, have coalesced around three troubling positions: First, the protection of “spenders” (as in Citizens United) rather than the underrepresented. Second, suspicion of Congress even when it acts by bipartisan majorities and proper democratic processes – as when Chief Justice John Roberts worried that the Affordable Care Act might allow Congress to make us eat our veggies, “extending the sphere of its activity and drawing all power into its impetuous vortex,” quoting The Federalist Papers. Third, and as a consequence of that suspicion, undermining the enforcement of major legislation – as when Roberts and Justices Scalia, Clarence Thomas and Samuel Alito declared that health care coverage has nothing to do with interstate commerce (the Commerce Clause being the legal tether for all public accommodation laws – laws that protect the environment, women’s equality, health, education, etc.).
The next Supreme Court case that takes this up directly could, if the balance shifts by a single vote, undo much of the grounding for all civil rights, environmental and health and safety laws
So it is, given the fits and fissures of the Roberts Court that there has been an upending of the traditional meaning of justice and our Bill of Rights. If we are ever to enact effective legislation to control weapons possession, we will have to reckon with the Court’s general genuflection to “spenders” – or monied lobbies like the NRA. If we fail to reinvigorate the values of mutually regarding political exchange and jurisprudence, we abandon the antidotes to a lethal distrust that is tearing us apart. Guns are simply the most deadly cipher for a nation that makes war upon itself.
PATRICIA J. WILLIAMS is a law professor at Columbia University and writes The Nation column “Diary of a Mad Law Professor.”