Hewitt made a point that Levin found unpersuasive: that Miers' seeing the Second Amendment as a personal rather than a militia right is a significant indicator of her overall approach to the Constitution. Here's that part of the interchange:
HH: But I can also point to you the one thing I've been able to find are her statements about the 2nd Amendment being a personal and not a militia right. That's a pretty big deal, isn't it?Hugh and Mark know more about ConLaw that I will ever even know that there is to know, let alone know, but -- I think Hugh's is a better point than Levin granted.
ML: I guess so.
HH: Does that matter?
ML: Yes. She's for the 2nd Amendment. Great. How about the other 99% of the Constitution?
HH: I'm just saying it's an indication, because to be...
ML: (laughing) all right. Let me ask you a couple of...
HH: We're running out...we'll come right back with Mark Levin. Don't go anywhere, America. Because the fact of the matter is, I've got him now. Because once you admit you get it right on the 2nd Amendment, which is one of the toughest things to get right, because of politics and opaque reasoning, we've got him. He's in the net. He'll struggle to get out, but we won't let him.
HH: Welcome back, America. It's Hugh Hewitt with Mark Levin, truly one of the trenchant observers of politics and law in America, author of Men In Black. Mark,...
ML: I mean, how can I argue with you after you say something like that?
HH: Well, that's intentional.
ML: Yes. Okay.
HH: Now, this is a serious point. The conservative critique of Miers may very well derail the most pro-firearms nominee in modern times.
ML: (laughing) And you base that on what?
HH: On her statement about it being an individual right, and on her gun ownership.
ML: That would be consistent with every other conservative jurist that I know. So that's not particularly spectacular. That's normal.
HH: No, I said of the nominees to the Court.
ML: Where does she stand on substantive due process?
HH: I hope very far away from it, but we don't know.
ML: Okay. Where does she stand on separation of powers?
HH: I think we'll find out that given the policy she advanced in the nominees that she put forward, and in the War On Terror arguments that advanced out of the White House, that she's very much an Article II judge.
ML: But we don't know.
HH: We don't know, although...
ML: Hold on. Now you said your 2nd Amendment. There's a lot of Amendments. I want to go through all of them.
There are pivotal issues which are signposts as to a person's overall approach. My impression is that Hugh is right in identifying the Second Amendment as such an issue. Let me illustrate from my own area of expertise.
About twenty-five years ago, a young fellow I knew was on the pastoral search committee of a small, conservative Christian church. They were interviewing a candidate who had taken his degree from Princeton. My friend was only interested in what programs this candidate would bring, what plans he had for making the church grow bigger. Princeton, to him, was just a fancy name. To me it was a warning sign.
So I made a simple suggestion. "Ask him who wrote the Pastoral Epistles and Second Peter, and when the book of Daniel was written."
He looked at me as if I had something in my nose. (I didn't.) He ignored the advice. They hired the guy. I later met and talked with Pastor X. Sure enough, he was a liberal, did not believe in the verbal, plenary inspiration of Scripture -- though the church did. My question, in under twenty words, would have shown the search committee that fact.
There would have been no point asking him if he believed in the Bible. He would have said "Yes." There would have been no point in asking him if he were a liberal. He would have said "No." Liberals know a thousand ways of squirming around what should be frontal questions.
Why ask about Daniel and the others? Because these were, particularly at the time, lynch-pin issues. If a fellow was wandering away from a high view of the inspiration of Scripture, first things to go would have been those items. Others would follow. Those specific questions located, if not his precise theological address, certainly the block he lived on. When you know what you're doing, you can do that.
On the other hand, if someone still affirmed that the book of Daniel was essentially contemporary to the narrated events, that Paul wrote the Pastorals, and Peter wrote Second Peter, the odds were overwhelming that he affirmed the view of Scripture that that little church held, and that I hold. I knew it was such an issue; my friend didn't. He ignored the point, and voted to hire a liberal.
Hugh equally may be right in identifying Second Amendment as such an issue. When you know what you're doing, you can find out a lot with just a well-worded question or two. This is Hugh's area of expertise. If he's right, it's a very encouraging sign.
UPDATE I: thanks to Generalissimo Duane for putting this up for Blog of the Week over at his excellent Radioblogger blog. [Sub-update: another site won. Thanks to all of you who voted for mine. It was fun!]
UPDATE II: one particular point made in a post by Dolphy at FreeRepublic has stuck in my mind. I found it a sharp observation, and haven't seen it anywhere else. An excerpt:
...I wonder about all of the constitutional experts here who are so insulted by the President's "trust me." Do they really expect any of us to believe that they carefully studied Luttig, Brown, Owens, etc. body of writings and opinions and independently judged their fitness? Or did they rely on the Coulter's, Kristol's and the rest "trust me?"