WITH THE SECOND AMENDMENT IN ITS SIGHTS, WILL THE ROBERTS COURT, AS USUAL, DITCH "JUDICIAL CONSERVATISM" IN FAVOR OF THE POLITICAL KIND?
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By Jon Dodson
DWT Constitutional Consultant
Abortion. Affirmative action. School prayer. Gun control. All examples of divisive constitutional issues which typically pit hard-line reactionaries against persons with more nuanced viewpoints.The Supreme Court, for better or worse, has played a pivotal role on most of these issues. In so doing, it has unwittingly provoked political reactions, creating a bounty of campaign issues for right-wingers over the years. Ultimately these issues galvanized social conservatives, paving the way for the ascendance of the wingnut movement. The obvious example of the Court's role in this regard is now the country's most endangered precedent: Roe v. Wade.
ROE: A MESSY PRECEDENT, BUT STILL A PRECEDENT
I'll admit, from a philosophical standpoint there is a legitimate argument that the Warren Court overstepped its bounds in some of its decisions, notwithstanding their sensibility and progressiveness. (In the matter of Roe v. Wade--actually a product of the Burger Court, which decided it by a 7-2 majority that included Earl Warren's Republican successor as chief justice, Warren Burger--many law students leave their constitutional law class shocked and dismayed to discover that the opinion really was one of the most reckless pieces of legal reasoning ever to come down from the Supreme Court, laying out a menu of potential policy justifications completely unhinged to any specific constitutional right.)But whatever its questionable merits as a matter of constitutional law, the occasional overzealous decision has the authority of precedent and is bolstered over time by the mandate of its consistent application. And whatever its validity as a philosophy, the "judicial conservative" viewpoint is naught but a subterfuge when it's only selectively espoused and applied and its fair-weather proponents are merely cynical, opportunistic politicians.
This intellectual dishonesty is exposed in cases where the conservative judicial philosophies clash with conservative political objectives. Typically in these cases politically "conservative" Supreme Court justices have abandoned their judicial "conservatism."
A "CONSERVATIVE" COURT TARGETS THE SECOND AMENDMENT
One of the most telling cases this term will be District of Columbia v. Heller. It pits respect for precedent, and the intent of the constitutional framers (essential aspects of the strict constructionist and originalist judicial philosophies), against the NRA's pipe dream--a vast, unprecedented expansion of the right to bear arms.
Moreover, unlike with most divisive constitutional issues, the Court has played no role in expanding or diminishing the scope of the Second Amendment until now. The Roberts Court can't pretend that it's merely "correcting" an "activist" decision from the Warren court.
The issue, as phrased by the Court, is whether D.C.'s handgun ban "violates the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."Since our Nation's founding, the Second Amendment was understood to encapsule a collective right, a right to bear arms explicitly tied to the maintenance of state militias, and historically bound to the revolutionary sentiment that a people should be allowed to "alter or abolish" their government. However, in 2007, the D.C. Court of Appeals became the first federal appeals court to ever strike down a firearm ban based on the Second Amendment. It was only the second time a court interpreted the right to bear arms as an individual rather than a group right.
The Supreme Court will review the decision, agreeing to review the scope of the Second Amendment for the first time since 1939. In that case, United States v. Miller, the Court held that the Second Amendment protects only the ownership of weapons appropriate for use in an organized militia, and that sawed-off shotguns don't qualify.
AS JUSTICE KENNEDY GOES . . . ?
The Supreme Court has consistently refused to revisit this issue, but the Roberts Court hasn't gotten its hands on a Second Amendment case until now. What will it do?On the one hand, a federal appeals court has never before ignored the Miller precedent in striking down a gun law. So, hopefully, the Supreme Court merely intends to reinforce the Miller precedent, and admonish the D.C. Court of Appeals to stand down.
On the other hand, the Roberts Court has already displayed a breathtaking disrespect for precedent, and for "judicial conservatism." It may very well endorse the D.C. Circuit's interpretation, expanding the Second Amendment for the first time in history and striking down the D.C. handgun ban for good. Because easier access to guns is just what our blighted capital needs.
Will this be another case of conservative judicial activism? Another betrayal of the purportedly "objective" philosophy motivating the likes of Jjustices Scalia, Thomas, and Roberts--and underlying their criticisms of "activist" court precedents such as Roe?Most likely, the decision will come down to the views of Justice Kennedy, as usual. Perhaps he will overturn the D.C. Circuit, and uphold the handgun ban. Precedent, judicial conservatism, policy rationales, and an international consensus on gun control dictate that he do so.
Labels: Anthony Kennedy, Roberts Court, Second Amendment, Supreme Court, Warren Court
posted by KenInNY @ 4:45 AM
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13 Comments:
I'm sorry , but your statement that the "collective view" has been historically accepted is simply not true. Actually the most widely accepted view by Constitutional scholars is currently the "individual right" view.
“A well regulated militia being necessary to the security of a free state,
the right of the people to keep and bear arms shall not be infringed. “
A most significant grammatical feature of the Second Amendment is that the operative clause is a command. Because no word in that command is grammatically qualified by the prefatory assertion, the Second Amendment has exactly the same meaning that it would have had if the preamble had been omitted, or even if the preamble is demonstrably false.
Consider a simple, everyday example. Suppose that a dean announces: “The teacher being ill, class is canceled.” Nothing about the dean’s prefatory phrase, including its truth or falsity, can qualify or modify the operative command. If the teacher called in sick to watch a ball game, the cancellation of the class remains unaffected.
If the dean was secretly diverting the teacher to work on a special project, still there will be no class. If someone misunderstood a phone message, and inadvertently misled the dean into thinking the teacher would be absent, the dean’s order is not thereby modified in the least.
The Second Amendment’s grammatical structure is identical, and so are the consequences. Whatever a well regulated militia may be, or even if no such thing exists, the right of the people to keep and bear arms is not to be infringed. What’s more, whether or not such a militia can actually contribute to the security of a free state, the right of the people to keep and bear arms remains unaffected. Indeed, even if it could be proved beyond all doubt that disarming the people is necessary to the security of a free state, still the right of the people to keep and bear arms would remain completely unchanged.
The original Constitution gave Congress virtually unlimited authority to regulate the militia. As its operative clause makes clear, the Second Amendment simply forbids one kind of inappropriate regulation (among the infinite possible regulations) that Congress might be tempted to enact under its sweeping authority to make all laws “necessary and proper” for executing the militia clauses of Article I. What is that one kind of inappropriate regulation? Disarming the citizens from among whom any genuine militia must be constituted.
Congress is permitted to omit many things that are required for a well regulated militia, and may even take affirmative steps to ruin the militia. Congress may organize the militia so as to create the functional equivalent of an army,48 or it may so neglect the militia as to deprive it of any meaningful existence. The Second Amendment does not purport to interfere with the general discretion of Congress to regulate, or fail to regulate, or perversely regulate the militia. All it does is forbid one particularly extravagant extension of Congress’ Article I power, namely disarming American citizens, which might otherwise have been attempted under color of regulating the militia.
Old Vet, excellent post. It's obvious you have studied this a bit. I am going to save this post!
I will be interested to see what responses you get.
Thanks for the thoughtful criticism. I think that's a valid textual interpretation, but there is more to consider. The grammatical interpretation is but one of many factors. Another is the purpose, which the prefatory clause clearly denotes. Another is subsequent precedent, and the fact remains that our precedent has not followed your interpretation. So, among the constitutional scholars that matter - the judges, the individualist view has never been in the majority. And another is policy. (To be clear, I'm not a strict constructionist, I just rail about the hypocrisy of so many who call themselves strict constructionists.)
old vet, thoughtful and very interesting comment.
al, of course you're going to save old vet's post. He actually has a carefully thought out and well-researched opinion, as opposed to the usual inane dumb fuck drivel you post on this site.
Jon, interesting counterpoint to old vet's post.
I agree, the prefatory clause does clearly denote a purpose; for the individual right that is granted in the last part of the Amendment.
I find it interesting that you fail to mention U.S. vs Emerson and the 5th Circuit Court of Appeals holding that the Second Amendment to the United States Constitution guarantees individuals the right to bear arms. That court “acknowledged the
individual rights view has enjoyed considerable academic endorsement, especially in the last two decades.” Also, I’m sure you are familiar with Sanford Levinson of Yale University and his article “The Embarrassing Second Amendment”. He is just one of many scholars and judges who are changing their opinions on the Second Amendment.
Of course the D.C. Court of appeals said in District of Columbia v Heller “To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).”
The tide seems to be turning against the “states rights” interpretation of the Second Amendment.
Al,
I find your citations interesting, but would respectfully point you to U.S. vs Al, in which the court found that dumb fucks who repeatedly post the full text of National Enquirer articles sliming John Edwards don't get to be taken seriously when they attempt to join a serious discussion.
Its known as "the no-dumb-fucks rule". Look it up.
The Supreme Court has said that the “obvious purpose” of the Second Amendment was the continuation and effectiveness of the militia system of common defense. (U.S. v. Miller, 1939)
The court was no doubt right.
Two important facts of history from 1789 must be taken into account.
The first of these facts is that the amendment was written as a restraint against the federal government only. (See the preface to the first 12 proposed amendments to the Constitution as they were sent to the states for ratification.)
The second crucial fact of 1789, often ignored, is that militiamen were required to use their own arms for training in militia companies under state law. (See the discussion below.)
Putting these two facts together raises an important question for supporters of the “individual rights” interpretation of the amendment: Would the framers really have written the amendment to keep the federal government from infringing the “right” of individual militiamen to obey their own state militia laws?
The state laws generally required all adult male citizens to be enrolled in a militia company and to muster for training with weapons provided by themselves. Thus, except for exempts, law-abiding men already had weapons that could be used for defense of self and home and for hunting bears – within the limits of any state law, of course.
In the Miller decision, the Supreme Court presented excerpts from the militia laws of three of the four most populous states of the Union (Massachusetts, New York, and Virginia).
These excerpts show how the state laws provided for the organization and government of the militia. They identify the men, by age group, who were obliged to train as militiamen with their own arms.
John Adams, in an appendix to his “A Defence of the Constitutions of the Government of the United States of American,” (1787) details the operation of the Massachusetts militia law:
“By virtue of the laws of the country, every male inhabitant between sixteen and sixty years of age, is enrolled in a company, and a regiment of militia completely organized with all its officers. He is enjoined to keep always in his house, and at his own expense, a firelock in good order, a powder horn, a pound of powder, twelve flints, four-and-twenty balls of lead, a cartridge box, and a knapsack; so that the whole country is ready to march for its own defence upon the first signal of alarm. These companies and regiments are obliged to assemble at certain times in every year, under the orders of their officers, for the inspection of their arms and ammunition, and to perform their exercises and manoeuvres.”
Another state law, the Pennsylvania militia act of 1780, which remained in effect until updated in 1793, can be read in full by entering the words “Pennsylvania Session Laws” into the computer and continuing from there.
This 29-page document, titled “An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania,” shows just how well-regulated a militia could be. Any militiaman who appeared “on any occasion of parading the company to which he belongs” with his arms and accoutrements in an unfit condition was to be fined the equivalent of one to ten days of labor.
The preamble to the Pennsylvania militia act identifies what was also the real objective of the Second Amendment -- which was to alleviate fears that, under the federal government, the militia system would be replaced by a standing army:
“And whereas,” the preamble says, “a well regulated militia is the only safe and constitutional method of defending a free state, as the necessity of keeping up a standing army, especially in times of peace, is thereby superceded:…”
Anti-federalists such as Patrick Henry and George Mason had spread the fear that the new federal government would ignore state laws to abolish the militia system and set up an abusive standing army in its place. “What havoc, desolation, and destruction, have been perpetrated by standing armies!” Mason told the Virginia convention to ratify the Constitution.
And then Mason asked, “Why should we not provide against the danger of having our militia, our real and natural strength, destroyed?”
The Second Amendment was the Framers’ effort to provide just that. The people in the aggregate were guaranteed in their right to keep and bear arms as a well regulated state militia.
Come back to reality cbear. John Solomon of the Associated press and the Boston Globe. The National Enquirer would not run the story, it's too believable.
Sorry to disappoint you. Your man Edwards is just another politician chasing the money! Too cheap to spend his own.
Leif, let's continue with George Mason; he also said ""Who are the Militia? They consist now of the whole people." This sentiment was shared by the Federal Farmer, who referred to a "militia, when properly formed, [as] in fact the people themselves."
Noah Webster put it this way "Before a standing army can rule, the people must be
disarmed; as they are in almost every kingdom in Europe."
Also, the Miller decision is almost 70 years old. The Court has made mistakes in the past and has corrected them. I think this Court will correct the 1939 mistake.
The second ammendment will in my opinion be recognized by this Supreme Court as it was intended by the framers - an individual right.
Examining your quotes, Al:
You say,"Leif, lets continue with George Mason; he also said, 'Who are the Militia? They consist now of the whole people'"
Mason here was speaking of all classes, not of the “whole people” in a sense that would include women and children and other persons not qualified for militia service. That can be plainly seen when you read more of the paragraph:
“I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and {426} rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty.”
You say, "This sentiment was shared by the Federal Farmer, who referred to a 'militia, when properly formed, [as] in fact the people themselves."
Here, Federal Farmer refers to “the people” as being the body of militia itself – all men capable of bearing arms, as was required in state militia laws. This is the same use of “the people” as that of the Second Amendment. All that, again, becomes clear when you read more of the Federal Farmer paragraph.
“A militia,when properly formed, are in fact the people themselves, and render regular troops in a great measure unnecessary. The powers to form and arm the militia, to appoint their officers, and to command their services, are very important; nor ought they in a confederated republic to be lodged, solely, in any one member of the government. First, the constitution ought to secure a genuine and guard against a select militia, by providing that the militia shall always be kept well organized, armed, and disciplined, and include, according to the past and general usuage of the states, all men capable of bearing arms.”
You say, "Noah Webster put it this way 'Before a standing army can rule, the people must be disarmed as they are in almost every kingdom in Europe.'"
Webster’s “disarming the people,” as is seen in the more complete quote below, consists of disarming the “force that exists among the people” – the militia of the states, as provided under state law. Webster is making essentially the same argument as made by Madison in Federalist 46. European countries were not made up of independent states, each with its own militia force, as was the case in America, and the kingdoms could therefore disarm the people and rule with a standing army. In America, the forces of the people were simply too large, when joined together, and too strong for that to work.
“Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command: for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.”
The Patent and Copyright Clause in the Constitution provided an obvious model that the draftsmen of the Second Amendment could have used to limit the right to keep and bear arms to militia purposes. That model was emphatically not followed, for the Second Amendment does not say anything like, “The people shall have a right to promote the security of a free state by keeping and bearing such arms as are suitable for use in a well regulated militia.”
Furthermore, the familiar words of the Preamble—which announce that the Constitution was adopted “in order” to achieve specified goals—offered another model whose grammatical structure could have used to put some kind of militia limitation on the right to keep and bear arms. But that approach was not adopted either, for the Second Amendment does not read: “In order to secure the existence of a well regulated militia, which is necessary to the security of a free state, the right of those men subject to militia duty to keep and bear arms shall not be infringed.”
Instead, the Second Amendment protects the right of the people to keep and bear arms, grammatically unqualified by any militia limitation.
So there is no limitation on the type of arms to be borne?
Shoulder-launched SAMs?
Backpack nukes?
No limitation on where the arms can be borne? Courthouses? Public rallies of high-ranking politicians? Aircraft?
What kind of a Law is this? The kind of Law that says,"be careful whatcha say, or such person will be taken hostage in their own homes" with people who are going to have guns anyway. And with no Self Defense Law, people in DC are suppose to suffer the consequence, ha? They can't even stab an intruder with a knife. In other words, people's homes are Public Property with that type of
f--!! boy Law, You know what I
mean? This is highly unconstitutional. Can you imagine how many women are probably being held hostage in their homes,in DC against rapist and pedophiles.And no way or defending themselves.And the Govt. feeds right into it. Let it happen anywhere else, they are entitled to defend themselves. f--!! bureaucrats! These criminals are going to have guns regardless of the gun restriction Law in DC And they are doing it, out of spite. Because of this stupid Law. I've been incarcerated with inmates from DC. And it is true, gun violence have gotton worse, out of spite, because of the strict gun Law. These inmates are worried about their own families defending themselves, against an would be intruder.
And because of that, that is why they are deliberately, increasing violence with guns. I hear them talking about it all of the time, from down Lorton, when inmates use to be down there, and the DC Jail. I know how they think. And they do it on purpose, because of DC not being entitled to what everybody else is entitled to, as far as "Home Rule" So for the ones that have died from gun violence is the Govts. stupid fault. And they don't care.
Excuse the expression. And finally, I'll see you later.
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