There You Go Again, George

So, based on his article today (copy linked below), at a time when the Conservative house is on fire, George Will is interested not in arguing for the Conservative cause, but in questioning it's very legitimacy. Wo, Déjà Vu all over again, as they say. Today's example is Will's argument that Conservative jurists haven't been sufficiently ideologically pure in the manner in which they concluded that the American people have the right to keep and bear arms. His argument seems to be that their interpretation was too simplistic, and that such interpretation thus opens the door to the same kind of constitutional free-styling characterized by the fuzzy logic of Democrats and Liberals.

Say what?

I won't bother you with the wonderfully diverse details of Will's central argument because they are impenetrable, but the jist of his argument is this: a literal interpretation of The Second Amendment is bad.

Let's review, shall we? The Second Amendment states: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." On a personal note, I believe that simple sentence has two too many commas, but that aside, these simple words - not to mention their straightforward historical context - are not enough for George Will, who writes: "Until June, the question was: Is the right guaranteed to individuals and unconnected with military service, or only to states as they exercise their right to maintain militias? The court held, 5-4, for the former view." He further writes that the Conservative wing, by interpreting the Constitution literally, has given short shrift to opposing views on individual gun rights, stating that there are "powerful, detailed, historically grounded 'originalist' arguments for opposite understandings of what the Framers intended with that right to 'keep and bear arms.'"

Let's first address the towering incoherence of an argument that states that Originalists have provided "powerful, detailed and historically grounded arguments" against an individual's right to keep and bear arms. No such arguments exist from Originalists except for those - like Will - who so define themselves, since it defies the very premise of Originalism to suggest that the Literal can be rendered obscure by taking words at their face value. To make this rhetorical Mobeus Strip coherent, Wills must redefine Liberals as Conservatives and Conservatives as Liberals, and he's well up to the task.

Are you with me so far? His second argument is also a doozy: Even though Originalism is based on the literal interpretation of the Constitution's words and the Framer's intent, Originalism runs the risk of becoming the exact opposite - and will encourage judicial activism - if we oversimplify it. Again, words cannot be interpreted for their literal meaning for fear of thus being interpreted literally.

It has ever been thus with many Conservative pundits, particularly those inclined to over-intellectualize. In addition to a disturbing tendency for introspection, Will and many others also excel at the endless - and frequently untimely - examination of minutiae, not to mention frequently reaching the wrong conclusions. Why do they do this? From my perspective, for Intellectuals, nothing gives one credibility like questioning ones own beliefs, affiliations, political party, you-name-it; and in the National Media, nothing gives a Conservative credibility like doing this frequently.

Don't take my word for it. Here's Will in his own words at the end of the article: "So, regarding judging, too, conservatism is a house divided. And as Lincoln said (sort of), a house divided against itself is really interesting." And there you have it in a nutshell. Nothing is of greater interest to a congenital Deep Thinker like Will than proving that any position - regardless of how clear - is subject to another interpretation, thus rescuing George Will from boredom.

Don't get me wrong, I'm not against introspection. Jesus demands it and philosophers aplenty endorse it. What I'm against is obsessive introspection; I'm against three-columns-per-week-deadline driven introspection; I'm against introspection demanded of Conservatives by their Liberal counterparts and The Media in order to get invitations to the right cocktail parties; and I'm dead-freaking set against the lifetime employment opportunities pursued by columnists like Will by endlessly talking to death every issue without resolving anything.

Will himself has addressed this issue before, and in so many words concluded that Conservative soul-searching makes Conservatives better. Maybe so, but somebody needs to tell George that the current debate isn't a polite exchange between equals; It's not an entertaining exchange between Mensa Lifers on the Left and the Right over tea; And it's most certainly not some intellectual exercise on behalf of the Common Folk by their Betters.

This is a freaking knife fight for the survival of freedom, democracy and capitalism, and the sooner that Wills realizes that and gets back to pounding the Democrats, the better.

http://www.chron.com/disp/story.mpl/editorial/outlook/6126567.html

2nd Amendment decision attracts conservative fire
By GEORGE F. WILL Copyright 2008 Houston Chronicle
Nov. 22, 2008, 9:41AM

Of conservatives' few victories this year, the most cherished came when the Supreme Court, in District of Columbia v. Heller, held for the first time that the Second Amendment protects an individual right to bear arms. Now, however, a distinguished conservative jurist argues that the court's ruling was mistaken and had the principal flaws of Roe v. Wade, the 1973 abortion ruling that conservatives execrate as judicial overreaching. Both rulings, says J. Harvie Wilkinson, suddenly recognized a judicially enforceable right grounded in "an ambiguous constitutional text."

Writing for the Virginia Law Review, Judge Wilkinson of the 4th U.S. Circuit Court of Appeals says Heller, like Roe, was disrespectful of legislative judgments, has hurled courts into a political thicket of fine-tuning policy in interminable litigation and traduced federalism. Furthermore, Heller exposed "originalism" — the doctrine that the Constitution's text means precisely what those who wrote its words meant by them — as no barrier to "judicial subjectivity."

The Second Amendment says: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." Until June, the question was: Is the right guaranteed to individuals and unconnected with military service, or only to states as they exercise their right to maintain militias? The court held, 5-4, for the former view.

In Roe, the court said the 14th Amendment guarantee of "due process" implies a general right of privacy, within which lurks a hitherto unnoticed abortion right that, although "fundamental," the Framers never mentioned. And this right somehow contains the trimester scheme of abortion regulations.

Since 1973, the court has been entangled in the legislative function of adumbrating an abortion code, the details of which are, Wilkinson says, "not even remotely suggested by the text or history of the 14th Amendment." Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.

Conservatives are correct: The court, having asserted a right on which the Constitution is silent, has been writing rules that are detailed, debatable, inescapably arbitrary and irreducibly political. But now, Wilkinson says, conservatives are delighted that Heller has put the court on a similar path.

In Heller, the court was at least dealing with a right the Constitution actually mentions. But the majority and minority justices demonstrated that there are powerful, detailed, historically grounded "originalist" arguments for opposite understandings of what the Framers intended with that right to "keep and bear arms."

Now the court must slog through an utterly predictable torrent of litigation, writing, piecemeal, a federal gun code concerning the newfound individual right. What trigger locks or other safety requirements impermissibly burden the exercise of this right? What registration requirements, background checks, waiting periods for purchasers, ballistic identifications? What restrictions on ammunition? On places where guns may be purchased or carried? On the kinds of people (e.g., those with domestic violence records) who may own guns? On the number of gun purchases in a month?

Judicial conservatism requires judges to justify their decisions with reference to several restraining principles, including deference to the democratic branches of government, and to states' responsibilities under federalism. But, Wilkinson writes, Heller proves that when the only principle is originalism, and when conscientious people come to different conclusions about the Framers' intentions, originalist judges must resolve the conflict by voting their preferences.

It has been said that the most important word in the Supreme Court's lexicon is not "liberty" or "equality" or even "justice," it is "five." But whereas in baseball a tie goes to the runner, in controversies about the constitutionality of legislation, a tie between serious arguments should, Wilkinson says, tilt judicial judgment to the democratic side — the legislature.

When rights are unambiguously enumerated, courts should protect them vigorously. But Wilkinson says that when a right's definition is debatable, generous judicial deference should be accorded to legislative judgments — particularly those of the states, which should enjoy constitutional space to function as laboratories for testing policy variations.

Roe and Heller, says Wilkinson, diminish liberty by "handing our democratic destiny to the courts." Many libertarian conservatives disagree, arguing that the protection of individual liberty requires robust judicial circumscription of democracy.

So, regarding judging, too, conservatism is a house divided. And as Lincoln said (sort of), a house divided against itself is really interesting.

Will is a Pulitzer Prize-winning syndicated columnist, based in Washington, D.C. (georgewill@washpost.com)