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.

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.

2nd Amendment, Comma, Update

Here is a quick update on the status of the 2nd Amendment case before the Supreme Court. It is set for oral argument on March 18, 2008. Normally, the Court sets two cases for argument, one hour each, on argument days. The Heller case is the only argument set for that day, so the Court will probably allow more than one hour. The government will, no doubt, be allocated time as well as the parties.

I have finished reviewing all the amicus briefs filed on behalf of those who support D.C.’s ban on handguns — and it is a good thing too, since the opponents will be filing this week. So much to read, so little time.

Little has been said about the 2nd Amendment commas in the briefs thus far. Nine pages of D.C.’s brief address grammar issues. Of more interest to grammarians — and to my thesis about the uses the majority and minority on the Court will put to those commas — is the brief filed on behalf of some English professors and linguists. I’ll be back on Monday to dissect it. (No doubt other professors will weigh in on the other side.)

In the meantime, here is the Readers’ Digest version of the briefs filed thus far.

1.) Doctors and law enforcement organizations weigh in with frightening statistics about deaths, especially those of children, resulting from handguns in the United States. (Even if one opposes the D.C. ban, this audit of death is awful.)

2.) Lawyers, specifically the American Bar Association, take the conservative view that the ban should be upheld. For the court to now decide that the U.S. Constitution protects an individual right to keep handguns in our homes will overturn too much history and too much law and involve the court in a decades-long series of cases meddling with States’ existing laws and States’ rights. Former Attorneys General and employees of the Justice Department agree, arguing that the Bush Administration’s radical shift is wrong-headed. (Although they don’t say it outright, their position is that no government can afford to have a well-armed citizenry. Revolutions result. Imagine the consternation if liberals took to the streets with their guns.)

3.) The others argue:

a.) The 2nd Amendment protects the right of the people to militias, not individual armaments. Not only do the words and the grammar indicate this, but the words “bear arms” mean “military weapons,” not personal armaments.

b.) But, if the Court should decide that the Constitution does insure the right of individuals to “bear arms”; that right, like all other rights in the Bill of Rights is not absolute. Those rights are subject to reasonable regulation and the D.C. ordinance is just such a reasonable regulation. (We can predict the reaction of only one Justice to that argument. Clarence Thomas won’t buy it. In the schoolyard gun case of a few years ago Thomas wrote separately, taking the position that all regulations of any kind imposed by the federal government on guns are unconstitutional. Not even Justice Scalia is willing to go that far. As Scalia once said, “I’m an originalist, but I’m not a nut.”)