Monday, August 09, 2010

Breyer, in McCormack, Destroys Roe

You have to admire Justice Breyer for creating the predicate which will strike Roe.

The decision of the Court to find, in the Second Amendment, the right of an individual to possess arms for his own defense would amount, said Breyer, “to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the states and the federal government. Private gun regulation,” he went on, “is the quintessential exercise of a State’s “police power”—i.e., the power to “protec[t] . . . the lives, limbs, health, comfort, and quiet of all persons. . . . ”

But of course there is nothing more “quintessential” to the province of local government in this country than the laws on homicide and assault.

...“Determining the constitutionality of a particular state gun law,” said Breyer, “requires finding answers to complex empirically based questions of a kind that legislatures a are better able than court to make.” Unless Breyer has the most artfully focused case of amnesia, he should have known that this was indeed one of the most important arguments raised against Roe v. Wade. Justice Blackmun, writing for the majority of the Court in Roe, professed not to know when human life begins. He did not know, that is, what any textbook at hand could have readily told him. It required the Senate Committee on the Judiciary to survey virtually all of the textbooks on embryology and obstetric gynecology, bringing out the remarkable convergence of the scientific evidence on a point that Justice Blackmun regarded as inscrutable and unanswerable.

...The regulation of guns was a matter quite portentous to Breyer because “it embodies a judgment that the regulation will help save lives.” To weigh the constitutionality of these regulations of guns “would thus almost always require the weighing of the constitutional right to bear arms against the “primary concern of every government—a concern for the safety and indeed the lives of its citizens.” In the full corpus of Breyer’s writings touching on abortion, almost nothing reveals more dramatically the convenient closing of his mind to the fact that the surgical dismantling of body parts in an abortion actually marks the destruction of a human life.

...It is possible, of course, to conceive of many variations and gradations in the regulation of guns. So many, in fact, that the Court could judge these regulations only by addressing “issues of empirical fact.” Breyer asks, “How can the Court determine if there are less restrictive alternatives without considering what will happen if those alternatives are implemented?” It seems evident to Breyer that the Court would be better able to weigh its judgments if it could draw on a richer fund of experience, with fifty separate states flexing their freedom and inventiveness to try out a vast mix of regulations. But a point so obvious would surely have been even more obvious on the matter of abortion: As Aristotle reminded us, for example, a decision taken in ignorance is not exactly a “voluntary” decision. And so what varieties of things may be done to insure that the woman contemplating an abortion understands what she is doing: understands, that is, whether that child she is carrying is less than human, or how far along it is in its development, or just who, among its relatives, it happens to resemble.


HT: First Things

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