NATELSON: NPR And Justice Stevens Are Wrong On Guns

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Robert Natelson Senior Fellow, Independence Institute
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A new article by National Public Radio’s Supreme Court reporter offers yet another instance of NPR’s left-leaning bias.

NPR operates on federal funds and other public subsidies. So it has a special obligation to make sure its news reporting is balanced. But Nina Totenberg’s report of her interview of former Supreme Court Justice John Paul Stevens is anything but balanced.

Stevens was appointed to the court by a Republican president, Gerald Ford. But like many other Republican appointees, once on the bench he veered sharply to the left.

Totenberg reports Stevens’ claim that the Second Amendment right to keep and bear arms protects individuals, and not merely state run militias. But she fails to balance that claim by telling her readers why the majority of the justices rejected it. Recent historical research has thoroughly discredited Stevens’ position: Statements from leading Founders show that the term “militia” meant all able-bodied males — not just those under state command.

“It’s not just guns,” Totenberg writes. “Stevens is equally critical of the court’s recent decisions striking down all manner of campaign finance regulations.”

But the court has not struck down “all manner of campaign finance regulations.” On the contrary, it has upheld a good number that it should have struck down—either because they were outside Congress’s delegated powers or because they violated the First Amendment.

Instead of reporting this, Totenberg pitches a softball: “Does [Stevens] think the court is taking a radical turn to the right? ‘Yes,’ he replies. ‘I really do.”

Now, both her question and his answer are objectively absurd: Four of the nine justices are liberals who have won victory after victory after victory by persuading one or more of their colleagues to side with them. And by historical standards, the current bench far more liberal than any serving within the first 150 years of the court’s existence.

According to Totenberg, “Stevens observed, ‘it is true’ that the court ‘seems to be more ideological than it’s been since the 1930s.’”

This “observation” is worth some follow-up questions: “Please explain why it’s ‘ideological’ to follow the Constitution’s original meaning? Isn’t that how courts generally interpret legal documents?” and “Do you really think the justices are more ideological today than the freewheeling bench led by Chief Justice Warren in the 1950s and 1960s?”

Instead we get another softball: “I guess your hope for a more neutral approach diminishes the more that happens.” Needless to say, she did not ask why it is less “neutral” to follow the Constitution’s original meaning instead of reading your personal views into the document, as Justice Stevens sometimes did.

Totenberg also makes a few historical mistakes: “Indeed, in the years that followed [Stevens’] appointment [in 1975], increasingly conservative Republican presidents appointed increasingly conservative justices.”

Really? Ronald Reagan was the first Republican president after Stevens was appointed, and he was also the most conservative. And on fiscal issues at least, the current Republican president is probably the most liberal. Similarly, none of the later Supreme Court nominees have been as “conservative” as such earlier nominees as Antonin Scalia (appointed by Reagan) and Clarence Thomas (appointed by the first President Bush).

More seriously, applying the term “conservative” to an originalist judge is a serious misnomer. Unlike judges who are liberal or conservative activists, originalists do not set out to reach liberal or conservative results. They merely apply to the Constitution the rules of interpretation that are standard for legal documents. Numerous Supreme Court cases show that the outcomes may be either conservative or liberal.

After offering a flawed definition of constitutional originalism, Totenberg gratuitously adds a common, but erroneous, criticism: “[A]lmost as soon as the ink was dry on the Constitution, the founders themselves did not agree on what they meant. And to this day, Supreme Court justices argue about the history and meaning of the words in the document.”

However, the disagreements among the Constitution’s promoters — as among serious originalist scholars today — centered mostly on difficult, marginal issues, not on the Constitution’s core meaning. Totenberg fails to mention that none of the Constitution’s leading advocates would have agreed with Justice Stevens’ anti-historical positions on campaign finance, the right to keep and bear arms, and the scope of federal power.

Rob Natelson, a former constitutional law professor with a background in journalism, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, and the author of The Original Constitution: What It Actually Said and Meant (3rd ed. 2015).

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.