Former appellate Justice Robert H. Bork, the controversial conservative whose nomination to the U.S. Supreme Court was rejected by the Senate in 1987, said Tuesday that he saw no constitutional barriers to states barring assault weapons.
Bork spoke out on the issue at the Distinguished Lecture Series with former California Chief Justice Rose Elizabeth Bird at UC Irvine.
“I’m not an expert on the second amendment,” Bork said about the right to bear arms, “but its intent was to guarantee the right of states to form militia, not for individuals to bear arms.
“But assault weapons could be banned under the Constitution” by states, he said.
In a follow-up question after the lecture, Bork was asked whether his statement would apply to all gun control.
“Probably,” he replied. “It doesn’t mean it’s a great idea. It’s probably constitutional.”
The two former justices met Tuesday night before an audience of about 4,000 in the first of a new series of lectures. Bork had been former President Reagan’s choice for the U.S. Supreme Court, and Bird was voted out of office by California’s electorate.
Bork and Bird came at the U.S. Constitution from opposite sides of the political spectrum, but both agreed that the courts had been politicized in recent years.
“We are now witnessing a war for control of our legal culture, and most particularly for control of our Constitution,” Bork said.
“The Constitution is the trump card in American politics, and judges decide what the Constitution means,” he said.
Bork blamed “liberals” for imposing a moral and political agenda on the courts “that cannot be found in the Constitution and that no legislature will enact.”
He argued for a strict adherence to the “original understanding” of the Constitution.
“I’m simply suggesting to you that those are questions for the American people and their representatives and not the courts,” he said.
Bird argued that the courts are faced with an ever-more-complex society that the framers of the Constitution could never have envisioned.
“I think our founding fathers intended to set down principles. They didn’t set down a detailed piece of legislation,” Bird said.
“Once we get into very rigid viewpoints on any of these issues, we begin to lose the dynamics of what our system is all about,” she said.
The framers could never have envisioned multinational corporations, blood testing or lie detectors, she said: “If you look at the right to privacy in a rural, rustic society and look at downtown Los Angeles, there cannot be, I think, a rigid idea that is given by some god to our founding fathers that we then follow rigidly today.”
Bork, however, argued that “once you say you don’t know what principles they (the framers of the Constitution) were laying down, then you have nothing left to guide you except your own preferences. And you ought not to be making up the law according to your own preferences.”
On how the courts have been politicized, Bird pointed to reapportionment and said that once there were major decisions in the area of redistricting, politicians realized that they needed sympathetic judges on the bench.
The two were brought together for the exchange with a $50,000 matching grant from the Irvine Co.
James Stofan of UCI’s Alumni Assn. said Bird and Bork were “excited” about the lecture “because it’s the first time they’ve been on the same stage.”
Since her defeat in one of the most bitter judicial elections in U.S. history, Bird has been a commentator for KABC-TV. Bork resigned from the appellate bench and is a lecturer.