By George F. Will
Friday, June 27, 2008
Two of yesterday's Supreme Court rulings -- both decided 5 to 4, and with the same alignment of justices -- concerned the Constitution's first two amendments. One ruling benefits Barack Obama by not reviving the dormant debate about gun control. The other embarrasses John McCain by underscoring discordance between his deeds and his promises.
The District of Columbia's gun control law essentially banned ownership of guns not kept at businesses and not disassembled or disabled by trigger locks, even guns for personal protection in the home. The issue in the case was: Does the Second Amendment "right of the people to keep and bear arms" guarantee an individual right? Or does the amendment's prefatory clause -- "A well-regulated militia, being necessary to the security of a free state" -- mean that the amendment guarantees only the right of a collectivity ("the people," embodied in militias) to "bear" arms in military contexts?
In an opinion written by Justice Antonin Scalia, who believes that construing the Constitution should begin, and often end, with analysis of what the text meant to its authors, the court affirmed the individual right. Scalia cited the ancient British right -- deemed a pre-existing, inherent, natural right, not one created by government -- of individuals to own arms as protection against tyrannical government and life's other hazards. Scalia also cited American state constitutional protections of the right to arms, protections written contemporaneously with the drafting of the Second Amendment.
Scalia's opinion, joined by John Roberts, Sam Alito, Clarence Thomas and Anthony Kennedy, radiates an understanding that the right to arms is the right of each individual to protect his rights to "life, liberty and the pursuit of happiness." Hence the Second Amendment is integral to the Bill of Rights and is, for weighty reasons, second only to the First.
Obama benefits from this decision. Although he formerly supported groups promoting a collectivist interpretation -- nullification, really -- of the Second Amendment, as a presidential candidate he has prudently endorsed the "individual right" interpretation. Had the court held otherwise, emboldened gun-control enthusiasts would have thrust this issue, with its myriad cultural overtones, into the campaign, forcing Obama either to irritate his liberal base or alienate many socially conservative Democratic men.
The McCain-Feingold law abridging freedom of political speech -- it restricts the quantity, timing and content of such speech -- included a provision, the Millionaires' Amendment, that mocked the law's veneer of disinterested moralizing about "corruption." The provision unmasked the law's constitutional recklessness and its primary purpose, which is the protection of incumbents.
The amendment, written to punish wealthy, self-financing candidates, said that when such a candidate exceeds a particular spending threshold, his opponent can receive triple the per-election limit of $2,300 from each donor -- the limit above which the threat of corruption supposedly occurs. And the provision conferred other substantial benefits on opponents of self-financing candidates, even though such candidates cannot be corrupted by their own money, which the court has said they have a constitutional right to spend.
Declaring the Millionaires' Amendment unconstitutional, the court, in an opinion written by Alito, reaffirmed two propositions. First, because money is indispensable for the dissemination of political speech, regulating campaign contributions and expenditures is problematic and justified only by government's interest in combating "corruption" or the "appearance" thereof. Second, government may not regulate fundraising and spending in order to fine-tune electoral competition by equalizing candidates' financial resources.
The court said it has never upheld the constitutionality of a law that imposes different financing restraints on candidates competing against each other. And the Millionaires' Amendment impermissibly burdened a candidate's First Amendment right to spend his own money for campaign speech.
This ruling invites challenges to various state laws, such as Arizona's and Maine's, that penalize private funding of political speech. Those laws increase public funds for candidates taking such funds when their opponents spend certain amounts of their own money or receive voluntary private contributions that cumulatively exceed certain ceilings. Such laws, like McCain-Feingold, rest on the fiction that political money can be regulated without regulating political speech.
The more McCain talks -- about wicked "speculators," about how he reveres the Arctic National Wildlife Refuge as much as the Grand Canyon, about adjusting the planet's thermostat, etc. -- the more conservatives cling to judicial nominees as a reason for supporting him. But now another portion of his signature legislation has been repudiated by the court as an affront to the First Amendment, and again Roberts and Alito have joined the repudiation. Yet McCain promises to nominate jurists like them. Is that believable?