It’s almost axiomatic at this point that those who most loudly decry violations of the second amendment will gladly sacrifice nearly any other amendment for the sake of national security. The most recent example of this principle is the flurry of Republican congressman who have argued that Tsarnaev should be denied his Miranda rights. Now there are certain instances in which the Miranda rights may not be read (the “public safety” exemption), but it doesn’t appear that this case qualifies. Anthony Romero of the ACLU said, “the public safety exception to Miranda should be a narrow and limited one, and it would be wholly inappropriate and unconstitutional to use it to create the case against the suspect.”

We are a nation of laws, not of men. But it’s my believe that those who often claim to “love the 2nd Amendment” despise the others. Let’s start with Heller. In 2008, Scalia wrote in District of Columbia v. Heller (2008) that, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Many gunnies (as I shall call them throughout the remainder of this essay) believe the case is closed. Hardly. The way Scalia conjured the decision involves several questionable steps, since the 2nd Amendment is hardly as sexy as it is made out to be:

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.

Essentially, Scalia argues that the entire first half, all that about the well regulated militia is an entirely irrelevant “perfunctory clause” which does not in any way limit the meaning of the Second Clause. Of course, Scalia often stands upon his soapbox and proclaims his undying admiration of the founders, but it’s bunk. His colleague William Brennan once said of such sympathies, “little more than arrogance cloaked as humility.” The Economist calls Scalia, an “uber-activist” legislating behind the bench. His colleague David Souter reportedly broke into tears after Bush v. Gore (2000) because it was so politicized. Jeff Toobin writes in his book, The Nine,

David Souter alone was shattered. He was, fundamentally, a very different person from his colleagues. It wasn’t just that they had immediate families; their lives off the bench were entirely unlike his. They went to parties and conferences; they gave speeches; they mingled in Washington, where cynicism about everything, inluding the work of the Supreme Court, was universal. Toughened, or coarsened, by the their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter though he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

When Scalia talks about the independent judiciary it’s bullshit. He’s the most political of the judges and Heller is a political decision. Kurt Eichenwald summarizes nicely,

To explain the meaning of the supposed prefatory clause of the Second Amendment, Scalia—who holds himself out as a strict textualist of the Constitution—felt the need to rewrite the Bill of Rights.

But let’s assume Scalia really does care about the Constitution. What about the other rights, like the right to due process, habeas corpus, protection from unwarranted search and seizure aren’t standing up so well. Things aren’t much different now than when Gore Vidal called the SCOTUS, the “nine-member legal counsel to the president.” For instance, in Guantanamo Bay, prisoners are being held without the right to Habeas Corpus, sometimes for a decade or more. This is in clear and resolute opposition to three Supreme Court decisions and President Obama’s own words. But the court turns a blind eye and refuses to hear Habeas Corpus suits from the prisoners, displaying a stunning capacity for contradiction.

The President has renewed the National Defense Authorization Act which allows for the indefinite detention of U.S. citizens without trial – for the first time in American history – without a peep from Congress or the media. Just two weeks ago Congress re-authorized Foreign Intelligence Surveillance Act (FISA) with only one day of floor debate. Don’t be deceived by the name, FISA tramples on the Fourth Amendment by authorizing the National Security Agency (NSA) to wiretap domestic conversations without a warrant. Aside from protest from watchdogs like Rand Paul (R – Ky.) and Ron Wyden (D – Or.) the bill flew through. Worse, the media didn’t cover the story because talk of the “fiscal cliff” and “gun control” have sopped up all prime time coverage. The New York Times reported the day after Christmas that the drones used in Pakistan for air strikes are now authorized for surveillance in America. Candidate Obama excoriated the Patriot Act, President Obama extended the it, even its most controversial provisions last year. Sound Orwellian yet?

So the writ of habeas corpus, the right to due process, and the protections against unwarranted search and seizure are being trammeled. Why are the gunnies complaining about simply regulating firearms? Remember when the gunnies said we had to sacrifice our rights for security, right after 9/11? Now they say simply extending background checks would be a horrific violation of the second amendment. Even Scalia would have trouble weaseling his way out of that one. But I’m sure he’s willing to try. Neither the President, nor the Vice President, nor any governor is talking about preventing sane citizens from owning guns with proper background checks. If there’s any hints of totalitarianism it isn’t the eroding of the second amendment, but rather the fourth and fifth, but it’s odd no one’s talking about that.