Posts Tagged ‘Second Amendment’

How the Supreme Court Learned to Stop Worrying and Love Guns

July 31, 2010

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.



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

July 26, 2010

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 in the National Parks

March 30, 2009
Springtime in Dath Valley National Park - NPS Photo

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

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

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

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.

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.

[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).


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 – Part the Umpteenth

March 25, 2008

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 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

March 18, 2008

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

March 3, 2008

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.



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.

2nd Amendment, Comma, Update

February 2, 2008

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.”)

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

January 11, 2008

We left off with the video of the high speed chase in the case of Scott v. Harris in the United States Supreme Court decided last year. [1]If you haven’t watched it, here it is again.

Victor Harris, age 19 at the time, was going 73 mph in a 55 mph speed zone on a road in Georgia. A police cruiser clocked him at that speed and then went after him. Young Harris fled, which resulted in the high speed chase (up to 90mph) you see on the video. After about 9 minutes of the chase, the police decided to “take him out” by shoving the Harris car off the road, resulting in the wreck you see at the end of the video. Amazingly, the wreck did not kill Harris but it did render him a quadriplegic, paralyzed permanently from the neck down. Harris sued the police, alleging that they used unnecessary force to stop him. (The police knew who he was long before the chase ended and could have abandoned the chase, gone to Harris’ house and arrested him there) Two lower courts, while not deciding the case either way, thought that Harris was entitled to have a jury hear his claim. The Supreme Court, by a vote of 8 to 1 threw Mr. Harris out of court without giving him his jury trial, holding that the video proved that no “reasonable” person could conclude that the police used unjustified force in ending the chase. The lone dissenter, Justice Stevens, saw something different and no one can rebut his senses because none of us can see anything except with our own eyes.

But the Court tried. It put the video up on its web site, the first time it had ever done such a thing, inviting people to look at it and make up their own minds.

Accepting the Court’s invitation, three law professors showed that video to 1,350 representative Americans to see if they agreed with the result. You can read the paper here.

The majority did agree, but a significant minority thought that the police overreacted and used unreasonable force. The people who agreed with the Court held “hierarchical” worldviews. The minority, which did not agree, held “egalitarian” worldviews. People are disposed to resolve disputes in a way which supports their group identities and their personal values:

Individuals who subscribe to a worldview that is relatively “hierarchical,” we predicted, would likely be strongly inclined to agree with the Court’s assessment of the risks posed by the fleeing driver, whose defiance of authority would provoke their resentment and fear. In contrast, subjects who subscribe to a more egalitarian worldview, we predicted, would be angrier at the police, as symbols of overreaching authority figures, who were indifferent to the danger their own use of force posed to the well-being of bystanders, not to mention the driver. As a result, they would form the judgment that the decision to chase the driver and to use deadly force to halt his flight were not risk-reducing on net.

That’s exactly what we found.

It turns out that our perception of facts are “pervasively shaped” by our values. Moreover, we clearly perceive this value-based perception in others but are very bad at seeing it in ourselves. The Court in the Harris case failed “to recognize the cultural partiality of its own perceptions.”

The Court’s appeal to brute sense impressions to justify its decision reflects a simple incomprehension that people with particular cultural commitments would likely see something very different. Only decisionmakers unaware of the role that cultural commitments were playing in their own perceptions of the facts could actually make an oversight like that.

But that’s not all. Ascertain whether a justice is more “hierarchical” or “egalitarian” and you can predict how that justice will interpret those 2nd Amendment commas. Those commas in the 2nd Amendment mean exactly what each justice wants them to mean. So much for the idea that the law, like grammar, is objective and rational.

And it gets worse, our values are shaped in large part by our emotions. But that is a subject for another day.
[1] Lawyers find the case fascinating for all sorts of technical reasons but my purpose today is to use the case to demonstrate how judges decide cases and how the Supreme Court is likely to decide the 2nd Amendment case we’ve been discussing in these posts about the commas in the amendment. Here is just a small sample of the legal debate. Orin Kerr, What Are the Facts in Scott v. Harris, The Volokh Conspiracy, (“The right answer is that Justice Breyer should believe his own eyes.”) (February 28, 2007); Case Comment, Fourth amendment – Reasonableness of Forcible Seizure, 121 Harv. L. Rev. 214, 222 (2007) (arguing that the Court’s analytical approach pushed it to make a bad ruling on an incomplete record); Tommy Crocker, Do Texts Speak for Themselves, Prawfsblawg, (November 5, 2007) (criticizing Court’s lack of justification for its result and stating “I can imagine how much easier teaching would be if I could simply say to students, ‘I’m happy to allow Marbury to speak for itself.’ ”)”); and Dave Hoffman, The Death of Factfinding and the Birth of Truth, Concurring Opinions, (April 30, 2007) (“each Justice saw the risk of speeding through his or her own cultural prism.”).

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

January 9, 2008

This business about the commas in the 2nd amendment is getting complicated. We’ve had several erudite comments and possible interpretations of the amendment. I encourage everyone to read them thoughtfully, which obviously is how each was written. For now, I am going to combine two statements from the comments written by “Scandal17″ who wrote,

You tell me what kind of clause you want it to be. . ., what kind of clause your judge wants it to be. It’s up for grabs in an absolute phrase, whether that phrase be in plain English, Latin, or Greek.

In other words, textual analysis is going to take each justice who performs it where ever that justice wanted to end up in the first place because no result is absolutely decreed by the text.

Another commentator agrees with the majority in the D.C. Court of Appeals decision. He says, “one readily sees that the Absolute clause does not modify the subject of the main clause.” That decision leads to the conclusion that the Amendment protects an individual right to keep and bear arms. We know already that Justice Thomas agrees and it is fair to assume that Justice Scalia and other Justices will as well. However, I suspect others won’t.

Which illustrates the point that judges — like the rest of us — make decisions through a complex interplay of emotion and reason. Mostly, the emotions lead and are followed by reason. Reason’s primary function is to justify the decision. The commas are tools for reason; applied after emotion.

Descartes would not agree with me. He posited that humans first must understand an idea before they can evaluate it. Spinoza thought otherwise. It was Spinoza’s thought that believing comes either prior to or at the same instant as understanding. The brain forms beliefs automatically. Rejecting a belief requires a conscious act.

I do not intend here to delve into the mind-body problem raised by Descartes. But a little background is necessary. Descartes started the whole mess with his cute little dictum, “I think; therefore, I am.” An innocent enough statement until you dig into it. Your shovel quickly reveals that it separates body from mind and spirit from both. That is a handy thing for people whose job it is to make decisions. They can pretend, at least, to be purely rational in their decision-making process. In other words, Descartes is a life-saver for judges. Without him they would stand naked before us, deciding cases based on emotion as well as reason, just like we decide what movie to see or what team to root for.

But Descartes may have been wrong.

My limited understanding of modern behavioral and neurological research is that it sides with Spinoza. While we are fully capable of analyzing and rejecting ideas and information, we tend first to believe whatever we read or hear. And what we read or hear is profoundly influenced by the culture in which we exist and our emotional needs.

What is true for all the rest of us is also true for judges. Here is Richard Posner — conservative judge of the 7th Circuit Court of Appeals, appointed by President Reagan — on the issue:

“[O]ften in law it is very difficult to verify (or falsify) empirical claims by objective data.” In such cases, “judges perforce fall back on their emotions or intuitions. They practice … ‘cultural cognition.’ ” The Role of the Judge in the Twenty-First Century, 86 B.U.L. Rev. 1049, 1064-65 (2006).

Which will eventually take us back to those commas. But first we’re going to watch a high speed auto chase. Here is the video which involved the legal question of whether the police were justified in using the force they did to stop the fleeing auto. (Be warned: The video ends in a bad car wreck.) Tomorrow we’ll discuss its relevance to those commas.

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

January 4, 2008

Since the last post on the commas of the 2nd Amendment I’ve had two comments from a scholar of Latin and Greek. You can read them at the end of the last post in the series or you can wait until the next post in which I will quote both as we finish our examination of the grammar of the amendment.

Today, however, the first brief in the D.C. gun control case will be filed in the Supreme Court. Here is a copy. I will summarize it for those of you without the time or inclination to read it. You’ll have to skip to page 27 (p- 46 of the PDF version) to find the first reference to a comma. I’ll begin my summary of the brief with that portion. Today’s filing is the brief on behalf of the District of Columbia. The District wants the Supreme Court to reverse the decision of the court of appeals which would have the effect of sustaining the constitutionality of the District’s handgun ordinance.

We’ll start with the commas. According to the District’s brief, the first version of the Amendment, drafted by Madison and submitted to the Virginia ratifying convention, read as follows:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Forget the last clause, the conscientious objector provision; it did not make into the Constitution. Instead focus on the semi-colon after the first clause and the first clause itself. You’ll note that the final version transposed the first and second clause of the amendment and changed the semi-colon to the first of the three commas. Here is what the District has to say in its brief about that:

A select House committee meeting in executive session transposed the first two clauses, making the reference to a “well regulated Militia” more prominent, and substituted a comma for the semi-colon, underscoring the connection between the two clauses. Id. at 170. The new structure and punctuation reflected the fact that the need to protect the right followed from the need for the militias.

“Whoa,” say the grammarians — and the majority of the court of appeals — “they just blew by that comma. I thought commas separated independent clauses. Doesn’t substituting a comma for a semi-colon underscore the independence of the two clauses, not their connection?”

I imagine we’ll be hearing from the other side about that.

But the District’s discussion of the first clause and the commas occurs in the context of its basic argument which is that the amendment deals only with military matters. The District argues that the subject of the clause is “the militia” and the object is “the security of a free state.” In other words, the amendment protects the possession and use of guns only while serving in an organized militia. This is about the military, not civilians. According to the District:

The first clause—“[a] well regulated Militia, being necessary to the security of a free State”—speaks only of militias, with not a hint about private uses of fire-arms. A well-regulated militia is the antithesis of an unconnected group of individuals, each choosing unilaterally whether to own a firearm, what kind to own, and for what purposes.

The second clause—“the right of the people to keep and bear Arms, shall not be infringed”—equally ad-dresses the possession and use of weapons in connection with militia service. In 1791, “Arms” and “bear Arms” were military terms describing the use of weapons in the common defense, and the word “keep” was used in connection with militiamen’s possession of the arms necessary for militia service.

Taken together, the two clauses permit only a militia-related reading. To conclude that the Framers in-tended to protect private uses of weapons, the major-ity below read the entire first clause to be extraneous and the second to be in tension with the natural, military meaning of “bear Arms.” If that had been the Framers’ intent, they would have omitted the first clause and used non-military language in the second.

Not a word about the “ablative absolute” of Latin.

The District makes two other arguments in its brief, both of which would allow the Supreme Court to duck the fundamental constitutional issue of whether the 2nd Amendment protects an individual’s right to own guns. As I’ll point out in the next installment of this series, reasons exist for the Court to do just that.

First, the District argues that the 2nd Amendment does not apply within the boundaries of the District of Colombia. The purpose of the entire Bill of Rights was to constrain the federal government from impinging on the rights of states and individuals but the district is a federal-enclave. Because the District’s legislation has no effect outside the boundaries of the District, the ordnance does not implicate the 2nd Amendment. (Congress is vested with plenary power over the District in Article I, Section 8 of the Constitution.)

Finally the District argues that even if the amendment provides an individual right to own guns and even if the amendment applies in the District, the ordnance still passes constitutional muster because it is a reasonable regulation of that right.

According to a long line of Supreme Court decisions, our constitutional rights are always subject to reasonable limitation. Justice Holmes’s aphorism that the First Amendment’s right of free speech does not extend to shouting “Fire!” in a crowded theater is an example. The District argues that banning handguns, requiring registration and trigger-locks is just such a reasonable limitation.

The District’s brief is the first in what I am sure will be a series of fine briefs. Responsive briefs are due in early February and I will return to discuss them. While we wait, we’ll finish off the commas.


I see that the Washington Post editorialized about the addition of Walter Dellinger to the District’s lawyers today. You can read that here.