Have Gun, Will Sue

They’re back.  Gun cases I mean.  After last year’s decision in Heller v. D.C., which we covered here at the Golden State, more gun cases are moving through the federal courts. Heller held that the federal government may not prohibit people from having handguns in their homes, ready for use in self-defense. The Second Amendment protects an individual right to bear arms, unrelated to militia service.

But what about states and cities?  May they pass local laws restricting the right?  The Constitution reserves to the states all powers not specifically granted to the federal government.  So, does the Second Amendment apply to them?

If you don’t care, you’re excused.  But don’t go far.  On Friday we’ll have a sex post.

The legal issue involved is whether all of the Bill of Rights of the U.S. Constitution apply to the states. In 1873, the U.S. Supreme Court said “no.” (In a case entitled, The Slaughter-House Cases.” ) Then, beginning in the same year of Custer’s Last Stand, the Supreme Court specifically said that the Second Amendment does not apply to the states.  (!876, 1886, 1894)

The Springfield Rifle Used by Custer's Soldiers

In the 20th Century, the Court began applying portions of the Bill of Rights to the states.  Freedom of speech and religion, right against self-incrimination, right to a jury in a criminal case were some of the rights “selectively incorporated” via the Fourteenth Amendment to the Constitution. Although most everybody has hated The Slaughter-House Cases for a long time, the Court has never overruled it.  Meaning, for instance, your state may refuse you a jury in a civil case unless it has its own constitutional provision giving you that right because the Seventh Amendment has never been applied to the states.

The National Rifle Association (NRA) is pressing several lawsuits trying to get rid of those old cases. Three federal courts of appeal have now ruled in those lawsuits.  Only the Ninth Circuit agreed with the NRA, holding that the Second Amendment can be selectively incorporated.  The other two circuits (Second and Seventh) thought that the three judges of the Ninth Circuit got too big for their britches.

Decisions of the United States Supreme Court are binding on all lower federal courts.  They are not suggestions, they are commands.  When there is a controlling Supreme Court decision, lower courts have to follow it, no matter now much they dislike it.   Even if the decisions are old, poorly reasoned, and maybe wrong; the lower courts have to toe the line.  As Judge Easterbrook explained last week, if lower court judges were free to question the reasoning behind Supreme Court decisions, those decisions would, “. . . bind only judges too dim-witted to come up with a novel argument.”

Judge Easterbrook, who wrote the 7th circuit’s opinion and Judge Posner who signed it, are not shrinking violets. Appointed by Ronald Reagan, both remain true conservatives and admit they are bound by Supreme Court decisions. But both are happy to share their thoughts with the Supreme Court, especially when they believe the Supreme Court isn’t thinking clearly.

So, at oral argument in the Chicago case, Judge Posner suggested it was “preposterous” to suggest — as the NRA does — that Americans in 1868 thought that an individual right to bear arms existed or that they wanted it applied to the states.  They had, after all, just put down an insurrection fueled by privately owned arms.  (1868, the year the 14th Amendment was added to the Constitution, controls an originalist’s or a textualist’s view.  What matters to that approach to constitutional interpretation was what the people who voted for the amendment thought they were voting for at the time they voted.  See our posts using Dudley Doright to explain this.)

Judge Easterbrook’s opinion also suggests that, because Heller rests on the right of self-defense, it may not carry the weight the NRA loads on it.  Suppose, says Easterbrook, a state abrogated the right to self-defense, which was the basis of Justice Scalia’s decision in Heller. As I’ve warned you before, you have to watch Justice Scalia very carefully.  He often begins his opinions in the middle, leaving out arguable premises and assumptions.  In fact, the more questionable his assumptions, the harder he tries to hide them.

So it was in Heller.  In addition to his blithe assumption about those semi-colons, he also wrote as though the right to self-defense was sacred, knowing all the time that it isn’t.

The Winchester 73 a/k/a The Gun that Won the West

The right to self-defense is a political right, not a constitutional right.  You look in vain for the words “self-defense” in the Constitution.  Because it is a political right, the people or their elected representatives may change it without amending the Constitution.  Because it is a creature of the common law and not of the Constitution, judges may change it. As Judge Easterbrook notes, a state could pass a law making shooting someone in self-defense a crime.  Then no one could have a gun at home for self-defense, because self-defense itself would be a crime. (One could still have guns for hunting and target shooting but regulations like those in Heller requiring that guns kept at home be disassembled and locked up would stand.)

And, as Judge Easterbrook points out, that is not a farfetched example.  Already the right to self-defense is restrained.  You have a duty to retreat in many situations.  Depending on the law in your state, you might well end up in jail if you shot an intruder as he was coming over the fence into your yard.  You could end up in jail if you shot him before he came through your window.  A court could one day decide that the threat of prison sufficiently deters burglaries, holding that private citizens cannot use deadly force no matter what happens.

In other words, your right to shoot other human beings — already quite limited — could be extinguished altogether, yanking the rug out from Heller.

Obviously that day won’t arrive for a very long time, if ever.  The current Supreme Court certainly won’t outlaw self-defense.  But Judges Easterbrook and Posner clearly enjoyed firing a shot across its bow.

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You can read Judge Easterbrook’s opinion here.

The Second Circuit opinion — one of the judges was Judge Sotormayor — is here.

The Ninth Circuit’s opinion is here.

The NRA’s petition asking the Supreme Court to take the case is here.

If you are keeping score, nine federal judges have addressed the issue since last year’s decision in Heller.  Four were appointed by Republicans, five by Democrats. Six think only the Supreme Court can decide the issue, three disagree. Of the three in the Ninth Circuit who stuck out their necks and applied the Second Amendment to the states, one was appointed by President Reagan, one by President Carter, and one by President Clinton. Go figure.

Guns in the National Parks

Springtime in Death Valley National Park - NPS Photo

In the midnight hours of the departing Bush Administration someone in the Department of Interior decided it would be a good idea to revoke a long-standing rule prohibiting carrying concealed weapons in our national parks.  Why someone would want or need to lug a hidden gun around in the parks was not discussed.  I guess they were just remembering their King Lear, “Oh, reason not the need!”

So they adopted a new rule allowing concealed guns in the national parks.  But they skipped the part about doing an environmental impact statement (EIS) as required by the law.

The Mythic Reason for Guns in National Parks

Recently, a federal judge in Washington D.C. threw out the proposed change on precisely that ground: An EIS was required but not performed; therefore, she granted an preliminary injunction against the government.

But before she did that, the judge granted an extension of time so the Obama Administration could file its own brief.  The government, speaking through lawyers who now work for President Obama’s Justice Department, argued that the rule was valid because it only allowed people to carry the guns, not fire them.  Since they couldn’t be fired, they would have no environmental impact; therefore, an environmental study was not required.

The judge was not impressed with that argument. [1]

It is worth noting that the case, in its current form, does not raise issues concerning the Second Amendment, although the National Rifle Association is trying to make it do so.  As of now, the case is purely about midnight rule-making and not a Second Amendment right to self-defense against wolves.

A Real Wolf

Besides, the Second Amendment has never allowed people to carry guns where ever they want.  If you don’t believe that, try taking one with you the next time you go to the airport and see what happens.

Moreover, the idea that tourists and backpackers in our national parks need to carry hidden guns is silly.  Hunters need guns; tourists don’t.  I’ve backpacked my entire life and have never felt even the slightest need for a gun.  In fact, the only time I’ve ever really been frightened by an animal in the wilderness was when some drunken Homo Sapiens started target shooting just over a ridge from where my family was enjoying a picnic.

A Real Girl

All this reminds me of James Thurber’s fable, “The Little Girl and the Wolf.”  Once upon a time a little girl — let’s call her Red Riding Hood — was walking through a dark forest, perhaps one in a national park, on her way to deliver some food to her ailing grandmother.  She was accosted by a talking wolf who asked her if she was taking the food to her grandmother.  She said, “Yes.”  So the talking wolf ran along to grandmother’s house and got there before the little girl.  When the little girl arrived she went in and saw somebody in her grandmother’s bed wearing a night cap.  Here is the rest of Thurber’s tale:

She approached no nearer than twenty-five feet from the bed when she saw it was not her grandmother but the wolf, for even in a nightcap a wolf does not look any more like your grandmother than the Metro-Goldwyn lion looks like Calvin Coolidge.  So the little girl took an automatic out of her basket and shot the wolf dead.

Maybe I’ve never felt the need to carry a gun in a national park simply because I’ve never met a talking wolf, but perhaps it’s a bigger problem than I thought.

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Thurber’s fable can be found in Thurber: Writings and Drawings published by the Library of America or in any copy of the original book, Fables for Our Time, first published in 1940.

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[1] Here is what she said:

The lynchpin of Defendants’ response is that the Final Rule has no environmental impacts–and that Defendants were not required to perform any environmental analysis–because the Final Rule only authorizes persons to possess concealed, loaded, and operable firearms in national parks and wildlife refuges, and does not authorize persons to discharge, brandish, or otherwise use the concealed, loaded, and operable firearms. In other words, the Final Rule has no environmental impacts according to Defendants because the Final Rule does not authorize any environmental impacts. By relying on this tautology, Defendants (1) abdicated their Congressionally-mandated obligation to evaluate all reasonably foreseeable environmental impacts, whether authorized by the Final Rule or not, and (2) ignored (without sufficient explanation) substantial information in the administrative record concerning environmental impacts, including (i) Defendants’ own long-standing belief under the previous regulations that allowing only inoperable and stored firearms in national parks and wildlife refuges was necessary to safeguard against certain risks to the environment and (ii) the almost universal view among interested parties that persons who possess concealed, loaded, and operable firearms in national parks and wildlife refuges will use them for any number of reasons, including self-defense against persons and animals (all of which suggests that the Final Rule will have some impact on the environment).

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UPDATE:  APRIL 18, 2009 – The Obama Administration’s Department of the Interior has announced that the government will not appeal.  The National Rifle Association will.

Guns and Commas – Snow Job

Some perceptive conservative jurists and columnists have looked into the Supreme Court’s decision in Heller v. D.C. in which the Court held that the 2nd Amendment to the Constitution protects an individual’s right to keep guns.  While conservatives generally applaud the ruling — because it agrees with their political and emotional views on the topic — it is subject to many of the same infirmities of Roe v. Wade, which liberals generally applaud — because it agrees with their political and emotional views on the subject.  The line between the two cases is short and straight  according to J. Harvie Wilkinson — appointed to the 4th Circuit court of Appeals by President Bush and on conservatives short list for a seat on the Supreme Court.  Both cases to him are “guilty of the same sins.”  According to Richard Posner — Reagan appointee to the 7th circuit court of Appeals — the majority opinion in the gun case is “evidence of the ability of well-staffed courts to produce snow jobs.”

Both cases are forays by the Court into quintessential cultural and political issues which dispassionate observers admit is constitutional ambiguity.  The words of the Constitution do not provide clear answers. In addition, many thoughtful observers, on both sides of both issues, question the wisdom of the Court involving itself in either.  A case can be made that the political process would resolve them faster.

In addition, Judges Wilkinson and Posner, together with conservative columnist George Will, argue that both Heller and Roe exhibit judicial immodesty .

Judicial modesty, in this context means, as Justice Brandeis eloquently warned judges, “We must ever be on our guard, lest we erect our prejudices into legal principles.”  Judges are not “knight errants” according to Justice Cardozo.  Judges ought not usurp the legitimate powers of the executive and legislative branches but should defer to those branches of government unless the Constitution unambiguously commands otherwise.

For Judge Wilkinson, the majority opinion in Heller failed that test as it failed others.  The opinion was a “failure to adhere to a conservative judicial methodology.”  Representing a transfer of power from the political branches of government the opinion is, for him an “exposé of original intent as a theory no less subject to judicial subjectivity and endless argumentation as any other.”  As in Roe v. Wade, Heller recognizes a substantive right “grounded in an ambiguous constitutional text,” a right the courts will now spend years defining in countless lawsuits.

For Judge Posner the irony in Justice Scalia’s opinion was that the originalist method of constitutional interpretation championed by Justice Scalia “would have yielded the opposite result.”  Questioning both its method and result, Posner sees the case as evidence that the current Court exercises “a freewheeling discretion strongly flavored with ideology.”

Such discretion, incompatible with judicial modesty, led the Court in the gun case to impose a national rule “neither necessary nor appropriate.”

Posner concludes,

A preference for judicial modesty–for less interference by the Supreme Court with the other branches of government–cannot be derived by some logical process from constitutional text or history. It would have to be imposed. It would be a discretionary choice by the justices. But judging from Heller, it would be a wise choice. It would go some distance toward de-politicizing the Supreme Court. It would lower the temperature of judicial confirmation hearings, widen the field of selection of justices, and enable the Supreme Court to attend to the many important non-constitutional issues that it is inclined to neglect.

Justice Scalia, the author of the majority opinion in the gun case, no doubt disagrees.  He has been accused of many things, but never modesty.  He is a man either incapable of introspection or one capable of breathtaking hypocrisy, but modest he is not.

Guns and Commas – The Last Post (For Awhile)

The Supreme Court of the United States has made it clear: Americans unaffiliated with any militia possess a constitutional right to keep and bear arms. More than 36,000 fire-arm related deaths befall the U.S. each year. Handguns account for more than 80%. Half are suicides. Because suicide is an impulsive act, many probably would not happen if guns were not so easily available. More male teenagers die from gunshot wounds than from all other causes combined. In addition to the deaths, more than 86,000 people a year are wounded by fire-arms, again mostly by handguns. In spite of those horrific facts and for what it is worth, here is my judgment on the case: The Court got to the right political and institutional result, but for the wrong legal reason. (I would not have voted to accept the case in the first place, but the Court did.)

Guns are too much a part of our current culture in the U.S. for the Supreme Court to pronounce them illegal. Institutionally and politically, the Court trimmed its sails. Even with the best captain and crew in the world, no sailing ship can sail directly into the wind, even if it needs to.

Enough Americans are not yet fed up with the audit of gun death and destruction. An opinion of the Supreme Court outlawing handguns would do nothing to speed the day when we are sufficiently fed up and might actually slow the process.

But purely as a matter of law, especially if you are — as Justice Scalia loudly and often proclaims himself — a “textualist,” you should conclude that the words and grammar of the Second Amendment protect only a collective right to bear arms for service in a militia. Otherwise, the entire first clause and all those commas are meaningless. Only a self-deluding textualist, hell-bent on achieving the result he desired would read the first clause of the 2nd Amendment out of the Constitution.

Frankly, the Framers never thought about gun control. Back then everybody had guns and all the states had militias. It never occurred to anyone that private ownership of handguns would ever be a serious societal problem in parts of the country. Nor did it occur to them that regulating handguns might solve such a problem. Moreover, Justice Scalia notwithstanding, gun control never crossed the minds of the white male property-owners over 21 who voted to ratify the Constitution. Guns, like limited suffrage, were taken for granted. As Newton could not have imagined a regime where his formulae do not work (Quantum Mechanics), neither could those men have imagined one without private guns or one where women voted.

It is silly to answer a modern question by imagining thoughts that dead people never thought. The Framers had no intention about gun control because they never thought about it. Neither did the people who voted to ratify the Constitution.

Ironically that is why, if you accept a theory of constitutional interpretation which includes modern understandings, it is reasonable to conclude that the ambiguous text of the 2nd Amendment protects an individual right to handguns and single-shot hunting rifles. The 5-4 decision probably tracks current opinion polls faithfully. That is where our culture is at the moment.

And make no mistake, that is exactly how the majority decided this case. That is what Justice Scalia labored mightily to hide in his opinion for the Court. After all, a real textualist would never ignore three lowly commas.

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This ends, for awhile anyway, the series of posts about the Second Amendment. Disappointed that the Court skipped the commas and the “ablative absolute” issue, I subside now to wait for a more literate Court.

While I complain about the Court’s sins of omission, here is Ross Guberman on the Court’s grammatical sins of commission.

Guns v. Commas – The Penultimate Post

He that uses many words for explaining any subject, doth, like the cuttlefish, hide himself for the most part in his own ink. -John Ray,naturalist (1627-1705)
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It is time to tackle the Supreme Court’s opinion in Heller v. D.C., the recent case in which the court held that Americans have an individual right to own at least some kinds of guns. This should be the next-to-last post about the case. (At least until some of the cases the National Rifle Association started last week wind their way through the court system.) The other posts are collected in the 2nd Amendment category at the right.

The decision was 5-4 with Justice Scalia writing for the majority. Justice Scalia is the best writer on today’s Supreme Court. He knows how to write a short, well-reasoned opinion. When he goes on for 64 pages, as he does in this case, something cuttle-fishy is afoot.

And, as I’ve warned you before, if you give Justice Scalia his premises, which he usually sets out in the first few paragraphs of his analysis, he’ll frog-march you away helplessly entwined in his logic. It’s his premises you have to watch. Often they are honestly debatable and sometimes flatly wrong.

His opinion in the Guns v. Commas case is an example. Here is how it starts.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.

Even Scalia knows he’s pulling the wool over our eyes:

Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.

But we aren’t concerned with other “legal documents” and Scalia knows it. We’re concerned solely with the Constitution which does not have “prefatory clauses,” except in the Preamble.

If your premise is shaky, it’s good to muddy the waters with an impossible example as soon as possible. For instance,

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.”

Then, after making up a provision that does not exist, run back to the unquestioned basic premise:

That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause.

Talking through his hat like this makes Justice Scalia irritable and depressed, like an unwilling child dragged to a weekly piano lesson.

When that happens, he takes it out on a fellow justice. This time it’s Justice Stevens on whom he vents his frustration.

(JUSTICE STEVENS uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 12.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).

Scalia spends a lot of cuttlefish ink disagreeing with the two dissents and often does it dismissively. But that enables him to gloss over other textual problems. For instance, what about the adjective “well-regulated?” Most everyone, back then and now, thought it meant a militia created and operated by a state government. But that is a troublesome understanding for Justice Scalia. So, he brushes it aside,

Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training.

Mr. Justice Scalia’s talent for deception is never as impressive as when he exercises it against unoffending, helpless dictionaries. “Regulated” does not mean “disciplined.”

A straw man to knock down is a good thing too, especially if it gets him back to his basic — and still unquestioned — premise,

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. . . . It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Eventually, he’s finished:

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

And not a word about those three commas, which is pretty good evidence that the Framers put them there for a reason; a reason which Justice Scalia finds disagreeable.

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Stanley Fish weighs in with a good point: Everybody on the Court spent their time worrying over the “intention” of the long-dead framers. (Technically, Justice Scalia worries more about the understanding of the people who voted to ratify.) My take on the case, coming this week, is related. Here is a teaser: the Framers had no intention about gun control because they never thought about it. Neither did the people who voted to ratify the Constitution.

Heller,Guns and Europe

Dear Europe,

Our Supreme Court today made it crystal clear that we Americans have a right to bear arms. Pistols, AK-47’s, M-16s, bazookas; you name it, we can have it. And not just in armories either. We can have them in our homes. Our offices. Our cars. Our Hummers. Our hip pockets. Wherever we want.

Because this may puzzle those of you living on the other side of the Pond, I thought I should explain why this is such a good thing.

In the first place, as Justice Kennedy of our Supreme Court explained during oral argument of this gun case, we need guns to defend ourselves from wild grizzly bears which roam the streets of our nation’s large cities. It is not well known that grizzlies ramble through the streets of New York City, looking for humans to eat. We keep this under wraps for fear it would hurt the tourist trade and we really, really need you to come spend your Euros which are worth so much more than our dollars.

The second reason this is a good thing is that our ability to own and carry guns deters crime. Let me explain: If a criminal thinks I might have a gun, he is deterred from robbing me. There is not a scintilla of evidence which indicates this is true, but it might be and that is good enough for us.

The third reason it is good for us to have this right to our guns is that it confounds our police forces. Used to a modicum of respect for the work they do, they became over-confident in their belief that we respect them and want to protect them from handguns wielded by criminals, battering husbands, and crazy people. Police everywhere will now subside into quiet acceptance of our view that a few dead policemen is a small price to pay for protecting ourselves against urban grizzly bears.

Finally — and seriously — now that we’ve secured our god-given constitutional right to bear arms, it will slowly become less important for us to do so. Eventually we’ll catch up with you and your culture; in the meantime, if you, your children, and your grandchildren choose to vacation elsewhere, we’ll understand.

And there are some hopeful signs that we’re growing up. For instance, our Supreme Court just last week reminded us — unanimously— that when we visit your countries we are completely subject to your laws, so we won’t be bringing our guns with us; not that many of us can afford to come visit. More examples of our incipient maturity include our current presidential campaign, the deep unpopularity of the Iraq War, and we’re about to get rid of George Bush.

We are a young country, barely 200 years old. We’re like a teenager who went out last night on a bender, came home bed-spinning drunk, and threw up all over the house. Because of the misery of the experience, we’re a little more mature this morning.

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Editor’s Note: We’ve been following this case all year, starting with those pesky commas in the 2nd Amendment to the Constitution. We’ve collected all those posts here.

The satiric Onion posits another reason why we love our guns.

Today’s news articles will be legion. Here are early takes from the BBC, the Guardian, the New York Times, and the Washington Post. Conservative law professors who have been involved in this boot-strap effort to insure that the right is an individual right will be doing some well-justified crowing here. Slate will be talking about it all day as well, especially in its “Supreme Court Breakfast Table.”

We’ll be back in a day or so to parse what the 157 page opinion has to say about those commas.

Guns and Commas – Part the Umpteenth

The argument about guns and commas in the Supreme Court is over and we await its decision about an individual right to bear arms which will probably arrive in late June. It won’t be the end of the argument, of course; Supreme Court decisions seldom are, but it will immediately be hailed as the best decision, as the worst decision, in the history of the Court. It will be neither. Slaves won’t remain in slavery because of it (Dred Scott), the economy won’t be caged for a generation (Lochner), concentration camps on American soil for American citizens will not be countenanced (Korematsu), and George Bush won’t be made president by five privileged people appointed to the Supreme Court by his father and his father’s predecessor.(Bush v. Gore)

If, as today seems likely, the Court rules in favor of an individual right to bear arms, the citizens who care deeply about the right will rejoice and the citizens, far less pugnacious, who think the right relates only to the militia will be saddened and angered. But not much will change because nothing the Court does will change the culture which owns so many guns. The District of Columbia and other crime-plagued urban areas will have to figure out new ways to limit handguns, college students and others will be shot by crazed people and federal judges will suddenly be in the gun control business. And the National Rifle Association will begin to lose members, money, and influence. Having won, for a generation or so, the personal right, it will no longer have a reason to exist. Oh, it will hang on for awhile, rather like horses after the invention of the car or trains after the invention of airplanes, but its relevancy will fade and so will it.

If I were a person of upstanding moral character I would just stop writing about the case. More than enough has already been said — and nothing with more humor than Dalia Lithwick here — but I can’t help myself.

The oral argument, which you can read in its entirety here, struck me as superficial. Chief Justice Roberts was almost cavalier, feigning disinterest in what standard the Court would apply to gun control laws after an individual right is established.

I’m not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don’t know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

And he was even more cavalier about the handgun ban itself, professing to see nothing about it that could be reasonable.

CHIEF JUSTICE ROBERTS: What is — what is reasonable about a total ban on possession?

Justice Scalia, from whom we may expect words about the commas and the grammar of the amendment, simply said,

But why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons — that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.

Justice Scalia was vigilant in protecting Heller’s young, inexperienced lawyer from mistakes. For instance, Justice Breyer asked if was unreasonable for a city with a high crime rate to say, “No handguns here”?

JUSTICE SCALIA: You want to say yes.
JUSTICE BREYER: Now, why?
JUSTICE SCALIA: That’s your answer.

Unsurprisingly, the young lawyer responded, “Yes.” Later in the argument Justice Souter asked Heller’s lawyer a different question. Again Justice Scalia sprang to the rescue:

JUSTICE SOUTER: Well, can they consider the extent of the murder rate in Washington, D.C., using handguns?
MR. GURA: If we were to consider the extent of the murder rate with handguns, the law would not survive any type of review, Your Honor.
JUSTICE SCALIA: All the more reason to allow a homeowner to have a handgun.
MR. GURA: Absolutely, Your Honor.

Only once did Justice Scalia fail to aid Heller’s lawyer. At the very end of his argument Justice Stevens asked him if a university could outlaw guns on its campus. The lawyer’s response was,

We would have to do some fact finding. . . It’s something that might be doable, but again, that’s so far from what we have here. We have here a ban on all guns, for all people, in all homes, at all times in the Nation’s capital. That questionably is too broad and too sweeping under any level of review.

Justice Kennedy, removing all doubt about how he will vote, voiced his conviction that everyone has a right to guns to protect ourselves from wolves and grizzly bears. No, I did not make that up. Here is Justice Kennedy from the argument.

JUSTICE KENNEDY: [To D.C.’s lawyer] It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?

JUSTICE KENNEDY: [To the Government’s lawyer]So in your view this amendment has nothing to do with the right of people living in the wilderness to protect themselves, despite maybe an attempt by the Federal Government, which is what the Second Amendment applies to, to take away their weapons?

JUSTICE KENNEDY: [To Heller’s Lawyer] I want to know whether or not, in your view, the operative clause of the amendment protects, or was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?

That, of course, is nonsense. Just as no grizzlies roam the streets of Washington, D.C. today, no one in the 18th or the 19th Century would have conceived the idea of handgun control. That does not mean; however, the Founders thought that having one was a sacred right. It could mean that or it could mean they just didn’t see the need to control handguns.  Or to explicate their use of commas.

Reply Brief in 2nd Amendment Case

Oral argument in the 2nd Amendment case is today. I have been remiss in not summarizing the last brief filed by the district of Columbia. On the other hand, you haven’t missed much. The brief was scattershot and left me with the feeling that a bunch of lawyers wrote a bunch of paragraphs, strung them together, and sent the thing off to the printer. As an example, the brief does — in passing — note that the first clause of the Amendment is not a preamble but a coherent part of the Amendment. This is one of the strongest arguments D.C. has. The lower court and all the briefs favoring an individual right make that assumption, glissading over the fact that it reads an entire clause out of the Constitution.

We’ll see if it matters. Oral argument often goes down unpredictable byways but, if the Court is about to hold that the Constitution accords individual Americans the right to bear arms, it will have to deal with the Amendment the way it was written and will not ignore the first clause.

Both an oral recording and a written transcript will be released after the argument is concluded. Scotus will be blogging live based on the C-SPAN feed. The Golden State will be back with its take on the argument but not as fast as the 400 million pundits who will offer instant analysis today.

I doubt we’ll hear much about the ablative in the oral argument. We may hear something about other Amendments, including the Ninth, Tenth and Fourteenth. There are many ways for the Court to finesse the fundamental issue. Courts are supposed to avoid constitutional issues when non-constitutional means of resolving issues are present. “Judicial Restraint” and “judicial humility” are labels usually associated with the concept. We’ll see. . . .

Given the interest in this case, the only safe assumption is that we Americans must really care about our guns.  Certainly more than we care about the English language.

2nd Amendment Case Update

We’ve had a brief respite from guns but the case is firing up again. Oh. I’m so sorry. I wonder if the 2nd Amendment protects puns and guns.

The District of Columbia’s brief is due tomorrow. (Tuesday) Walter Dellinger, the District’s lawyer who will argue the case and whose name appears at the top of the briefs, has been busy lately. He argued on behalf of Exxon last week in the Exxon-Valdez punitive damages case and had another argument earlier in February.

Oral argument in the gun case occasioned some lawyer maneuvering recently. Mr. Heller’s lawyers wanted to give the state of Texas 10 minutes of their oral argument time. The Court denied that request. The Solicitor General’s office asked for and got 15 minutes of time to argue the government’s position. (In favor of an individual right but one subject to much regulation.) The Court, as it commonly does when the government asks for argument time, granted that motion.

That means that advocates for the “individual” right to bear arms will have 45 minutes of oral argument time. (30 for Mr. Heller, 15 for the government.) The “collective” rights position will get 30 minutes.

In what is one of the great advances of the 21st Century, like nitrogen-bagged salads, transcripts of oral arguments are now available the same day as the arguments. In addition the Court, begrudgingly, sometimes allows tape recordings to be released the same day and I anticipate it will do so this time.

I’ll be back to summarize the Heller reply brief — the last one to be filed in the case — as soon as I am able. I’ll aim to be accurate and not take any pot shots. Oh, shoot! More puns — I’m sorry.

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UPDATE OF THE UPDATE – March 4,2008

The Court today announced that it agreed with this blog entirely and will release the audio tape of the argument shortly after the argument is concluded.  Why, you may ask, not just broadcast it live?  Well.  As I’ve said before, courts are the most conservative of political institutions.  The Supreme Court is waiting to see if radio really catches on.

Commas and the Law – The 2nd Amendment, Part VIII

47 amicus briefs against the D.C. ban on handguns were filed in the Heller v. D.C. case before the Monday deadline. Of necessity, the summaries here and in the next post in the series, represent only the tip of that iceberg. All the briefs are here.

One thing all these briefs for Heller proclaim is the need we all supposedly have to keep guns in our homes for self-defense. This is largely an urban myth. The odds of being attacked in our homes are about the same as winning the lottery. However, even if it were possible to dismantle that emotionally-based myth, the legal question would remain. Just because a man does not need a gun does not mean he has no right to have one. Nor does it address his right — or lack of one — to keep guns for hunting or target shooting.

A moment of disclosure here: As far as I am able to discern, I don’t have an emotional dog in this gun control fight. I grew up in a home fathered by an avid hunter and lifetime member of the NRA. I share with many hunters a love of the outdoors but am not a hunter myself. I have slept many nights in homes with guns and many nights in homes without guns and slept soundly in both. In addition, I believe that the Court’s eventual decision, no matter what it is, will have no practical real-world impact. More on that in a subsequent post when I assay my own prediction about what the Court will do.

Another common thread in the briefs is the assumption that the first clause is only a “preamble.” So far, I’ve read only two of the Heller briefs that dig deeper. Of those, only the brief of Professor Lund on behalf of an organization called The Second Amendment Foundation, devotes any time to the grammar of the Amendment. (Professor Lund has written before about the 2nd Amendment and he frequently cites himself as the authority for the propositions he asserts. However, his immodesty does not mean his arguments are wrong.)

But before he wades into the grammar wars, he too begins by declaring the first clause a preamble and then wastes no time telling the Court that we need to have guns to protect ourselves from violent criminals.

The principal reason for including a preamble praising the militia – a preamble that does not substantively alter the operative prohibition on federal overreaching – was to endorse the traditional citizen militia, which many Americans preferred as an alternative to standing armies. The language, grammar, and history of the Amendment show both that its protection is not limited to militia related activities, and that the protected right does extend to having arms for self defense against violent criminals.

But after that “preamble,” to his brief, Professor Lund meets directly the arguments of the English professors which I summarized here.

Still referring to the first clause as a “preamble,” he agrees that the clause is an “absolute phrase” grammatically independent of the second clause but then asserts, “Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended.” It is “self-evident” that the “preambular phrase” is just one reason for guaranteeing the right to keep and bear arms. Because the clause is independent, it modifies nothing in the second clause. The English professors are wrong. The absolute clause does not affect the “operative” clause. Their “self-evident” interpretation is wrong while Professor Lund’s “self-evident” interpretation is right.

Professor Lund continues:

Another very significant grammatical feature of
the Second Amendment is that the operative clause is
a command. Because no word in that command is
grammatically qualified by the prefatory assertion,
the operative clause has the same meaning that it
would have had if the preamble had been omitted, or
even if the preamble is demonstrably false.

Even if it could be proved that disarming the people is necessary to maintain the Republic, the government could not do it constitutionally.

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The other brief that I have read — thus far — which discusses the grammar is that of an Alabama organization named Foundation for Moral Law, a foundation dedicated to “defending the Godly principles of law upon which this country was founded.”  “Our God-given freedom starts with the natural right of self-defense,” according to the Foundation.

The Foundation has a slightly different take on the first clause and discusses the commas specifically.  According to the Foundation’s brief, “The clause containing the militia language is a dependent clause, while the arms-bearing anguage is located in the independent clause. . . .”  Thus the second clause can stand on its own, but the first clause, “. . .only forms a complete thought if coupled with the main focus of the compound sentence—the “right to keep and bear arms.” The function of the first and subordinate clause is to explain why the right must be protected; not to qualify it.

Of most interest, the Foundation discovered that the first and third commas were omitted when the 2nd Amendment was actually printed in the Statutes at Large of the United States  indicating:

. . . that the second comma was grammatically necessary to set off the two major parts of the amendment, while the other commas represented grammatical quirks of the time.

Everyone agrees it is just simpler to ignore the first and third commas.