In the last post, I highlighted Jack Balkin’s argument that the Heller case was a response via the Courts to grassroots political activism, party politics/ideology, and public opinion. Part and parcel of the conservative movement. He articulates a very perceptive (imo) way of observing and understanding this pattern of events.
But I was reading this passage this morning on the bus from MacIntyre’s classic After Virtue. For an analysis of MacIntyre’s ethics/political philosophy here, see especially pts. 1-7. It struck home the meta point as to why the structure Balkin articulates is inevitably the case in a society in which there are no agreed upon first moral principles. What MacIntyre predicts a court truly functions as (peacekeeper of the brutal war of domestic politics) is certainly the case in the end result of Heller.
The Supreme Court in Bakke as on occasion in other cases played the role of a peacemaking or truce keeping body by negotiating its way through an impasse of conflict, not by invoking our shared moral first principles. For our society as a whole has none.
What this brings out is that modern politics cannot be a matter of genuine moral consensus. And it is not. Modern politics is civil war carried on by other means, and Bakke was an engagement whose antecedents were at Gettysburg and Shiloh.
MacIntyre then quotes Adam Ferguson:
We are not to expect the laws of any country are to be framed as so many lessons of morality…Laws, whether civil or political, are expedients of policy to adjust the pretensions of parties [Balkin's point], and to secure the peace of society.
After Virtue, pp.253-254
[Edit: No more Heller posts, I promise].