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DC v. Heller: A Dismaying Performance By The Supreme Court
One can interpret today's decision in the Heller case from both "external" political perspectives or from a more "internal" legal one. I begin with the former: My own hope, which was spectacularly unrealized, was that the Supreme Court would unanimously accept the very well-written and -argued brief by the Solicitor General, in behalf of the Bush Administration, which argued both that the Second Amendment indeed protected an individual right to "keep and bear arms" and disagreed with the particularly rigorous test that the Court of Appeals for the District of Columbia had applied to the D.C. ordinance. Thus, according to the Solicitor General, the Court should remand the case back to the court below for reconsideration under a proper, somewhat looser, standard that would still have easily supported invalidating the ordinance.
Unanimous acceptance of his sensible view might have helped to diminish at least some of the culture war that has been waged now for at least four decades between advocates of "gun rights" and "gun control," who have their own interests in demonizing their opponents. Instead, the Court fractured along an all-too-predictable 5-4 axis, with the five conservatives supporting the rights of gun owners and the four liberals (or, more accurately, "moderates") seemingly supporting the most extreme version of gun "control," which is outright prohibition. The Solicitor General also offered a way for the Court to make sure that gun control would not become a key issue in this year's presidential race. Now there is no avoiding it, though, as a partisan Democrat, I confess to being relieved that the dissenters did not prevail, for the upholding of the D.C. ordinance would, in effect, have served as a massive in-kind campaign contribution to John McCain.
Then there are the "internal" features of the opinions, more interesting, no doubt, to lawyers (and law professors) than to pundits, but not without their broader interest. One of the most remarkable features of Justice Scalia's majority opinion and Justice Stevens's dissent (joined by Justices Ginsburg, Breyer, and Souter) is the view that the Second Amendment means only what it meant at the time of its proposal and ratification in 1789-91. Thus they spend a total of 110 pages debating arcane aspects of the purported original meaning of the Amendment.
If one had any reason to believe that either Scalia or Stevens were a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions are what is sometimes called "law-office history," in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other -- and, presumably, their colleagues who signed each of the opinions -- with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find "a clear answer" to the question of whether the Second Amendment supports a "right to possess and use guns for nonmilitary purposes." This is simply foolish. Neither Scalia nor Stevens pays any real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence.
What is especially ironic is that the strongest support for Scalia's position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been "dynamically" interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias -- and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge -- there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship. One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so. Thus, in effect, they could not be citizens. Charles Sumner, who, unlike Taney is quoted by Scalia, strongly endorsed the rights of anti-slavery settlers in Kansas to have guns to protect themselves against their pro-slavery opponents.
If one reads only Scalia and Stevens, one would believe that there is no dynamism to the Constitution, which is both stupid as a theory of interpretation and, more to the point, completely misleading as a way of understanding the American constitutional tradition.
All in all, a dismaying performance by the Supreme Court, whatever one thinks of the actual result.
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". . . is the view that the Second Amendment means only what it meant at the time of its proposal and ratification in 1789-91."
Well, gee, Levinson, why believe the Framers ACTUALLY meant what they ACTUALLY said as to their intents. And since those irrelevancies resulted in the Constitution, let's just throw the Contitution out with the bathwater.
So long as anything can be argued, regardless how bogus, then anything goes. Let's just declare the underlying implication also irrelevant: there is a "right" to have private armed gangs -- so long as one is careful to claim to be patriots and that the gang is a "militia" (Presser notwithstanding), and that therefore the military is no longer to be "in exact subordination to the Civil Power" (Sam Adams).
Thus there is a criminal gang "right" to "defend against" gov't/rule of law, protected by the Second Amendment, simply because those who reject the standards and ignore the Framers' own statement of intent say so.
Scalia -- and it seems Levinson also -- is for "original intent" except when it might tend to interfere with achieving his self-serving political ends, even if that means rejecting not only "original intent" but also the rule of law altogether.
In medieval times it was lawful to protect one's self from the police. With the Guantanamo Bay prison facility, and secret prisons of the US government, there appears to be something to fear, which is neither a republic nor a democracy.
"the historical record is complicated and, indeed, often contradictory"
You know better than to substitute that irrelevancy for legal authority. Historians are not practitioners of law, therefore it is appropriate for them to treat all primary materials as relevant to their tasks. However, as you know, Levinson, not everything written, including most materials historians view as primary, is primary material in law. You know, that is, that legal authority rules out a huge mass of materials which are NOT legal authority; thus law is determined by Constitution, statute, case law, and legislative history ONLY.
The only way to arrive at the NRA/Scalia conclusion -- which you support -- is to reject that standard in order to -- yes, Levinson -- selectively choose whichever NON-law will lead YOU to YOUR conclusion. Constitution and rule of law, and standards, be damned: let's impose your academic delusion on the real world; who cares how many deaths result: YOU aren't at risk of the consequences of that delusion because you don't operate in the real world. More guns means more deaths by gun -- and to hell with the fact that the Founders/Framers themselves engaged in gun-control, and more.
What poop Mr. Levinson.
You said:
"One of the most remarkable features of Justice Scalia's majority opinion and Justice Stevens's dissent (joined by Justices Ginsburg, Breyer, and Souter) is the view that the Second Amendment means only what it meant at the time of its proposal and ratification in 1789-91. Thus they spend a total of 110 pages debating arcane aspects of the purported original meaning of the Amendment."
How you must yearn for an activist court that interprets the law according to what "right minded" people think a law should mean in today's environment.
That's not the SC's function. It's congress's function to make laws that fit the times. The SC provides decision on opposing interpretation of a law but not with a filter that fits your or my ideas about what it should mean today versus when the law was made.
That's an invitation to make any law mean anything you want isn't it?
That's having the un-elected court make laws isn't it?
Prof. Levinson should read the Framers' debates of that which became the Second Amendment, in place of the NRA tracts. The first draft of that which became the Second, as codified by James Madison, read in full -- and note especially the final clause:
"The right of the people to keep and bear arms shall not be infringed; a well aremed, and well regulated militia being the best defense of a free country: but no person [INDIVIDUAL] religiously xcrupulous of [AGAINST] bearing arms, shall be comeplled [INVOLUNTARY] to render military [MILITARY] service in person."
The last clause is the only posited "individual right" -- that of conscientious objection -- debated concerning that which became the Second -- and it was voted down; which means, Levinson, that the Second has nothing whatever to do with "individual" anything. As the militia is a PUBLIC institution, and the private individual IS NOT, and the Second is expressly and only about well regulated -- under law -- militia, the Second cannot and does not apply to private individuals. There is a seaparate body of aws for the latter; that body is called GUN CONTROL REGULATION.
Further: the Second Amendment, within the scope of which is expressly the militia, DOES NOT "protect" ANYTHING within its scope FROM the rule of law. The Bill of Rights, and the Second, were ratified on December 11, 1791 -- SUBSEQUENT to which, on May 8, 1792, the Congress enacted the "Militia Act," which regulates the militia, Second Amendment notwithstanding.
When the Federal Bureau of Instigation breaks down my door (We're not here to create disorder, we're here to preserve disorder) will my telephone actually work long enough to call the well regulated militia? Can the cops get here in time to save my right to privacy? No? Well off to whatever Gitmo they have cooked up I go. See ya.
It SHOULD be as difficult to get a gun and license for one as it is to get and be able to drive a car. So far it is not. That said. What is different? Seems to me anyone who wanted a gun got one somehow. No one enforced the laws we have. And I just stay out of Texas where they shoot first and ask questions later.
advocates of "gun rights" and "gun control," who have their own interests in demonizing their opponents.
What interests other than a lessening of the violence inherent in "gun rights" would supporters of gun control have ? The deaths on 911 caused the US convulsions and yet a look at your murder rates should at least give pause for reflection. Is everything in the US to be decided on emotion ?
Oh my. Another person who has not read history. No one with the gun rights crowd demonizes their opponents. That is left up to the anti gun crowd who made sure Gore lost the 2000 election because of his ant gun stance,
"No one with the gun rights crowd demonizes their opponents."
You obviously don't read American Rifleman. Anyone who in any way favors any kind of regulation is "gonna take away your rights". I'm a gun owner by the way.
Do you have any idea how many lives are lost annually to ant guns? Gore took a principled position on them. I have a hard enough time controlling ants, I don't need the little bastards armed.
Many years ago I lost faith in the Supreme Court. In going back through the decisions by this august body I became totally appalled at some of the decisions. The Taney court was a poor excuse for any judicial body as was true of Plessy v Ferguson. With the ever political fight of the executive to choose candidates to the Supreme Court and other federal courts it is time to change the idea that judges are chosen for life. It is time for the judges to have fixed terms and hopefully this will put a stop to judges who are predisposed to decisions and then look for anything to support their bias.
I agree Activist judges like Ms. Abzug are the worst of the worst.
I am glad you agree.
Abzug?? Ms Abzug was a US Rep. Not a judge. Get your fact straight.
Abzug? Bella Abzug!?!? As Obi Wan said, "now there's a name I've not heard for a long time."
It's ok, man, she died ten years ago. She can't hurt you any more.
Not sure what you define as "judicial activism", but as I am guessing you don't think Scalia or Thomas have EVER engaged in it, you're probably using it wrong.
Let's see--why would the Founders write in a right to own guns as so fundamental? We know that NOT every farmer had a gun. We imagine guns were common to the original settlers for hunting and protection against American Indian attacks. So. Think again--the wealthy farmers in the Continental congress had slaves; to keep those slaves, don't you think they needed guns? Of course they did. Why did the Americans revolt--we are taught it was because they objected to paying a tax on TEA. Is that really very likely? At that time in England, the abolitionist movement was growing; indeed, slavery and slave trading was abolished in England in ...I think about 1808. The handwriting was on the wall--would the Americans sit back and allow the British to decide if they could engage in slave trade and using slaves, necessary to the american economy at that time. They could NOT tolerate that. So the Revolution. The Northern States would not be so dependant DIRECTLY on the work of slaves (only indirectly--textile mills manufactured the cotton ...). Anyway, the right to BEAR ARMS if it is an individual right---the primary purpose just by LOGIC had to be the only way to control and maintain the system of slavery. Now,....how do we reconcile this with the scalia et al original intent doctrine? It is shameful.
I am not an historian, but I think I am correct in this analysis!
If you should get the chance, you should read Lincoln's Coopers Union address. It is essentially a legal brief to prove that the founding fatherfs believed slavery would die out naturally.
Therefore, they outlawed slavery north of the Ohio and forbade the further import of slaves beyond 1808. Washington freed his slaves in his will.
But not while he was alive. Whatever the founding fathers believed, in my view is not important. They owned slaves, benefited from their labor, in some cases benefited from their sexual availability. They thought that others would give up what they themself were not willing to gove up?? Freeing them in their will in my view doesn't show much moral backbone. They were not willing to pay for labor but thought other would be willing to pay for labor??
As to Lincolns Cooper Union address, He had no idea what the founders believed. He knew what they said, but what they believed, that is shown more by their keeping slaves. Words are cheap, actions show more of their beliefs than words.
There was also those annoying Brits who kept telling the colonists to quit stealing Indian lands. Even Washington was involved in a land-grab, and had a definite interest in making sure that land would actually come into his possession.
Total factual mis-statement. God, this stuff is sickening.
The meaning of the Second Amendment becomes quite clear if one removes the emotional "gun" issue. Let's restate the 2nd in another context:
A well educated electorate, being necessary for the security of a free state, the right of the people to keep and read books, shall not be infringed.
If this were the law, would only educated people have the right to keep books? Or, would only the voting electorate be allowed to read? Of course not. All the people would have the right to keep and read books, and the state would benefit by having a more educated electorate.
The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. [Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)]
I seem to remember J Neil Schulman using that phrasing about books--definitely good reading
One of the problems especially in modern times is that much of the bill of rights effectively institutionalized being able to get away with lawless behavior. We favor giving "criminals" some cover.. Washington Jefferson and their brethren could have been accurately and correctly hung as criminals because they actually were. Yet a government cannot build into its laws a right to rebel. It can however limit its ability to root out the beginnings of a revolt or a different way of life or spiritual expression. So long as the people around you do not snitch the government has a difficult time finding out about your plans and activities. the 4th amendment requires probable cause. the 2nd builds in a chance to mount an armed force if in the course of human events it becomes necessary to throw off the govt. I know it is hard to grasp but the constitution builds in to the system some lawlessness and danger to avoid the danger of a despotic government. We limit the ability of government to become too efficient at enforcing its laws. It is a good thing I think.
The Federalist papers and State laws describe the functions and responsibilities of the militia, who were (and still are) ALL male residents 17 to 47 (or thereabouts) and the militia is REQUIRED to be armed, with the type of weapon prescribed by their rank. So all you guys who do not have a weapon and ammunition at hand in your house are actually breaking the law. Ha! Think about that!
And the Federalist Papers also specify that the weapon should be of a type that is used by the military, so that as the military has built bigger and more powerful ways to kill each other, we should be similarly armed, which means that if you want a grenade launcher; go ahead and buy one.
And note that our taxes are as high as those in Switzerland, you just don't add them up. Payroll tax, income tax to the Feds, State and county, gas tax, telephone tax, utilities taxes, property taxes and of course medical insurance (which is a tax. You just don't call it that, but it is a component of Switzerland's tax so it should be added). My taxes add up to well over 50 percent, and I don't get any help from the government with health care, unemployment, education, retirement etc that the Swiss do. I would be glad to only pay 50 percent and even happier to get something back for that money.
Actually one could argue that Article I Section 8 read with the 2nd amendment requires that congress buy us all guns.
...and once armed we would all then be expected to take the next flight to Iraq to help keep the streets safe.
"No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." - Thomas Jefferson
If the government eliminates the right to own and bear arms, the only people who will obey the law will be law abiding citizens.
When, as a law abiding citizen, I am prevented from bearing my arm by the government and someone comes into my home, place of business, college campus, high school campus, fast food restaurant, or anywhere else, as we have seen several times over the past ten years, and kills me and several of my friends and peers, the government has prevented me from defending myself and others and is then responsible. The government must then pay for my family's support and education. It must also pay for the families of the people I would have kept from getting killed.
The choice I have is not to not get educated, educate others, live where I want to live, or work in my chosen profession by staying away from places that ban guns. The choice I have is to go where I want, stand my ground, and defend myself and others if I have to as the law permits me to do. I cannot be required to run or cower behind a desk until I am found and killed.
What does protecting yourself against tyranny in government have to with protecting yourself from a mugger? Jefferson and the other founding fathers had just fought off an oppressive government and wanted future generations to have the right to do the same. We now most certainly have the most oppressive government in our history, and yet I haven't heard anyone in the NRA suggest its members should band together to take over Washington and drive Bush out at gunpoint.
we idiots elected him, and as far as anyone has proven to my knowledge he has either gotten consent of congress, or restricted his tyranny to non-us citizens whom he argues are at war with us, thus he cloaks his not quite naked tyrrany in tattered shreds of legality.
so we should continue to use legal means to get him out of office and resist his improper acts.
Another total off subject no fact post. I mean let's have a debate not a talking points contest.
Levinson:
I read a review of your book. Where did you get the idea that this country was a Democracy?
When Benjamin Franklin was asked, following the Constitutional Convention of 1787 what kind of government we had, he said, "A Republic - if you can keep it."
Reply on my website,
www.myspace.com/anarchyjack1/
I respectfully disagree - and agree - with Mr. Levinson.
I despise Antonin Scalia, but he got this one right. His discussion of Lord Blackstone's arguments on "the natural tendency to resist", which Stevens weakly dismissed as being "irrelevant," brought to bear the fact that our right to bear arms was deeply rooted in the colonists rights as English subjects. Stevens naively dismissed that inherent right as being outdated, focusing on the state militia clause, in which he wears out his copy of Madison's writings.
Further, Mr. Levinson has a short memory. In the recent decision for Boumedeine, et al. v. Bush - which extended Habeus Copus rights to Guantanimo detainees - not only were Justices Ginsberg, Stevens, Breyer and Souter joined by Justice Kennedy in ending Bush's unlawful and immoral detainment of these unconvicted individuals, he delivered the Opinion of the Court as well -and did a damn fine job of it. Yes, he's a conservative. He was, after all, put on SCOTUS by President Reagan. But like another Reagan-era Justice, Sandra Day O'Connor, he winds up being the lone voice of reason on a court, otherwise divided and yes, diminished by partisan bickering.
Regardless of whether you agree with Scalia on this one; you have to agree his reasoning on this compared to his Gitmo dissent is completely inconsistent. There will surely be more people killed because of this ruling, even while insuring them, so he believes, with their rights. Meanwhile insuring rights to the Gitmo detainees, he dissented, will get more people killed. Duh!
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