How the Supreme Court Learned to Stop Worrying and Love Guns

As we discussed last time, the Supreme Court’s latest gun decision in the case known as McDonald v. The City of Chicago, decided that the Second Amendment applies to the states as well as the federal government. Remember that two years ago – for the first time in the Nation’s history – the Court decided that the Amendment guaranteed an individual’s right to keep and bear arms, even though that individual never wore the uniform, never served his country under arms, and was never in the militia.(Or even the Texas Rangers.)

For the last two years the federal government has had no right to prevent you from keeping guns in your home. Now no state government can prevent it either.

Of course, before the ruling, most states already had their own constitutional provisions that protected your right, but now even if the citizens of your state voted to outlaw guns in your home, the Supreme Court would strike down that democratic decision.

Not that any such thing is likely to happen anytime soon. About 80% of Americans currently believe that we have a right to have guns in our homes.

So the federal Second Amendment now applies to the states and their towns and cities. The state of Illinois cannot stop its citizens from keeping guns in their homes, therefore, neither can Chicago, a political subdivision of Illinois.

But why? Why is the Second Amendment incorporated against the states?

Citizens Bearing Arms - Daniel Boone and Mingo

The answer demonstrates, as clearly and cleanly as Euclid could have, that the current Supreme Court is an activist court, at least when the five most conservative justices emotionally involve themselves in the outcome of a case.

Here’s why. Although the Court mustered a majority vote to apply the Second Amendment to the states, it did not muster a majority explanation of why. Of the two possible reasons to apply the Amendment to the states, both lost. One lost five to four and the other lost eight to one. Chicago should have won.

But five justices wanted a particular outcome and they voted for that outcome, even though they could not agree why.

“But wait,” I hear you say, “that’s not how it’s supposed to work.” And you are right. According to Chief Justice Roberts, judges are just umpires, calling balls and strikes, based upon their careful analysis of the law. They don’t care about how a case turns out, only about the legal reasons that require a result.

Balderdash.

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In the next post we’ll explain how Chicago lost this case. We’ll look at the most interesting of all the opinions in the case, that of Justice Thomas. We’ll call the post, “The Privileges and Immunities of United States Citizenship or How the Supreme Court learned to Stop Worrying and Love Beef!”

In meantime, here -with sound- is the opening theme of the 1950s television show, “The Texas Rangers.”

The Texas Rangers

The NRA Rides Off into the Sunset

You’ve been very patient and by now you know that the Supreme Court last month decided the most recent gun case. You also know that the Court announced that the states lack any power to prevent you from having a gun in your home. Of course, most states already have their own constitutional provisions allowing you to keep guns in your home. All the latest Supreme Court decision added was the guarantee – for as long as the case stands – that no state can change its mind, even if its citizens voted to do just that.

The Winner!

The National Rifle Association’s entire reason for existing is gone, wiped out by the United States Supreme Court simply giving it everything it wanted.

The result was no surprise, nor the fact that it came from the Court’s five most “conservative” and activist justices, the same five who just two years ago upended more than a century of settled case law which maintained that the right to bear arms applied only to members of a militia. (The same five activists earlier this term overturned a century of law and now unions and corporations can now spend as much money as they want in political campaigns.)

The latest case is fascinating, never mind that every Supreme Court watcher on the planet predicted the outcome and the five-four vote. 214 pages of text and five separate opinions will keep law students busy for a long time.

Three of the opinions are perceptive, well-written and good examples of the art of judicial opinion writing. The Court’s primary opinion and Justice Breyer’s dissent are of less interest. But Justice Thomas wrote an opinion that should give pause to anyone who believes he doesn’t think clearly. And Justice Scalia said good-by to Justice Stevens by engaging him in their long-standing argument about constitutional interpretation. (The position of Justice Stevens will win in the end. In fact, it had won before Justice Scalia ever took a seat on the Supreme Court, but he either failed to notice or just enjoys his lonely contrariness.)

So we’ll write a post about Justice Thomas’s opinion and one about Justice Steven’s final dissent. But first, we’ll have a look at the judicial activism that gave us the rule of law that nobody can keep you from having guns in your home – if you want them. (The Court has not yet decided that you must have a gun in your home, but the five gun-toters on the Court may not be through yet.)

So next time we’ll talk about how the five members of the Court got to the result they wanted, even though they could not agree on a reason supporting their decision.

Guns and Gay Marriage

“I will have no man in my boat,” said Starbuck, “who is not afraid of a whale.” Justices Scalia and Roberts will have no man in their boat who is not afraid of the “Privileges and Immunities” clause in the U. S. Constitution.

That pretty well sums up the argument this week in the latest gun case, although if you dropped into the courtroom during the argument, you might not have known the case was about guns, so abstract was the time.

As you’ll remember from our last post, there are two paths for the Court to apply to the states last year’s Heller ruling that individuals have a federal right to guns: It can “incorporate” the federal right via the Due Process clause [Substantive Due Process] or it can overrule The Slaughterhouse Cases and hold that gun ownership is a privilege of U.S. Citizenship, then apply that right to the states via the Privileges and Immunities clause, something the gun owners want.

The gun owners’ lawyer barely managed to clear his throat before Chief Justice Roberts jumped down it:

CHIEF JUSTICE ROBERTS: Of course, this argument [Privileges and Immunities]is contrary to the Slaughter-House cases, which have been the law for 140 years. It might be simpler, but it’s a big — it’s a heavy burden for you to carry to suggest that we ought to overrule that decision.

That question from a man who last month voted to overrule cases more than 100 years old so corporations now can enjoy unlimited spending in political campaigns and who last year voted to upset two centuries of understanding about the right to bear arms.

But nobody outdoes Justice Scalia when it comes to breathtaking judicial hypocrisy and activism. Here is a man who has called substantive due process “babble” and an “oxymoron.”

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it’s wrong, I have — even I have acquiesced in it?

(Laughter.)

Remember Justice Scalia’s view of the Constitution: “It is a document that says some things and doesn’t say others.” He claims that to be his lodestar in deciding cases. The “crucial fact” is whether it is there or not. To him, as to generations of lawyers on all sides of the political spectrum, the word “substantive” cannot be used to modify the word “process.” They don’t belong in the same sentence. What’s more, the word “substantive” appears nowhere in the 14th Amendment.

But states may not “abridge the privileges or immunities” of citizens.  Those words are there. Here is what the self-proclaimed originalist and textualist Scalia calls those words. He calls them “flotsam.” (And now we know how Justice Scalia writing for the court in Heller can blow by all those commas in the 2nd amendment as if they didn’t exist. For him, they too must have been “flotsam.”) But the right to bear arms isn’t “flotsam.” Scalia again:

See, the right to keep and bear arms is right there, it’s right there in the Bill of Rights.

This picking and choosing of words in the Constitution needs a name: We’ll call it “Selective Textualism.” You select the words (and grammar)you like, ignore the rest, then decide the case. Beautiful. Take note law professors!

But here’s the rub for a modern Court: What would it mean to resurrect the privileges and immunities clause? Justice Ginsburg asked the most important question for a modern Court:

What does the privileges and immunities of United States citizenship embrace?

Gay Cowboys?

All nine members of the Court are serious people and they take their jobs seriously. Overruling the Slaughterhouse Cases makes perfect sense, but might take the Court and the Nation in unpredictable directions. For instance, today guns; tomorrow, marriage. A Court with slightly different personnel might easily declare that marriage is a “privilege” of citizenship that no state can abridge. What then? Well, these two gun-toting cowboys  could get married. Health care might be a “privilege” of American citizenship. Who knows what other mischief those “activist” judges might get up to?

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But don’t worry. Justices Roberts and Scalia aren’t about to let that happen. Everybody who has read the transcript of the argument believes that the Court will apply last term’s Heller decision to the states  using “substantive due process.” The Court’s conservatives seem willing to ensure full-time work for at least one and possibly two more generations of lawyers who will litigate the details.

I see only one way the Court could overrule Slaughterhouse: The four moderates on the Court swallow their displeasure with Heller, agree to use the privileges and immunities clause to apply the 2nd Amendment to the states, walk down the hall, and convince Justice Thomas to join them. Unlikely, but not impossible. If it happens, remember: You read it here first.

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You can read the entire argument here. For a good news summary, try this. For a balanced legal analysis go here. For conservative legal views go here. For a more liberal reading, try this. And for an insightful (and humorous) view, try this by Dana Milbank. George Will weighs in, calling substantive due process “intellectual applesauce.”

The Guns are Coming! The Guns are Coming!

Today (March 2) the Supreme Court of the United States hears oral argument in the latest gun case. At issue is whether the Second Amendment to the U.S. Constitution prohibits state and local governments from regulating gun ownership.

The outcome is not in doubt; five justices – acting as national legislators – are going to find a way to make certain that no town or state inhibits your right to have guns, if you want them. Those five justices are emotionally invested in guns and will be unable to decide otherwise.

But how they get to that result will be fascinating.

Today, we’ll set the stage. After the transcript of tomorrow’s argument is available, we’ll translate it into English and tell you all about it.

You’ll remember the gun case last year. Blowing past those commas in the Second Amendment, those same five justices decided that the federal government may not interfere with an individual’s right to own guns. Left unanswered was the question whether a state or town could regulate gun ownership.

That is the case that will be argued tomorrow. Here’s what to look for.

The Bill of Rights in the federal constitution sets out many of our basic privileges as American citizens. Until after the Civil War, the Bill of Rights was not applied to the states, only to the national government. But the 14th Amendment, passed in 1868, demanded that no U.S. citizen be deprived of her “privileges and immunities” or of “due process” of law.

Crescent City Slaughterhouse

The Supreme Court promptly slaughtered the Privileges and Immunities clause of the 14th Amendment in the “Slaughterhouse” cases holding that the clause applied only to the recently freed slaves. (I’m simplifying here and will expand on this later, especially if it seems the Court really is interested in overruling Slaughterhouse.)

Most modern lawyers, on all sides of the political spectrum, hate Slaughterhouse, thinking that it effectively eliminates the Privileges and Immunities clause from the Constitution, while doing great damage to logic, law and language.

Nevertheless, it’s never been overruled and the current gun case asks the Court to do just that.

And here’s the rub: Liberal jurists want Slaughterhouse overruled, making the entire Bill of Rights binding on the states; conservative jurists hate incorporating rights through the due process clause, which they contend – with justification – was never intended to deal with substantive rights, such as the right to a jury or the right to receive Miranda warnings if you’re arrested or any of those other “technicalities.” Or the right to bear arms.

Mr. McDonald, the plaintiff in tomorrow’s case claims that the Court should overrule Slaughterhouse. The NRA, which is not in the case, but has ten minutes to argue anyway, doesn’t like that idea. (The NRA claims that it is the oldest “civil rights” organization in the U.S. That’s wrong. It defends only one “civil”right, the right to guns.)

Showing its true colors, the NRA just wants the Court to apply the 2nd Amendment to the states by incorporating it through the due process clause, something distasteful to conservatives. Nonetheless, the most conservative justices will be tempted to overrule Slaughterhouse and some of the moderate justices may well agree, even though they think the 2nd Amendment applies only to militias.

So look for some blurring of political lines tomorrow.

But don’t expect to listen to the argument. The modern-technology-hating Court summarily announced today that no tape recording will be released tomorrow. We’ll have to wait for the written transcript.

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For more, open any news site. Here is a good sample of the pre-game news coverage. And here is a sample of editorial opinion.

If you just can’t wait to read more about the Slaughterhouse Cases, here is a good summary.

For more on the first gun case, Heller v. D.C. see my series “Guns and Commas” especially the last post in that series.

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.