And Others.
On Sunday I mentioned Ian Hamet’s post A Challenge, and I promised to have more to say on the matter. Well, I do. (Warning! Extremely long post!)
But first, Ian has confessed to unconsciously plagiarizing libertarian author J. Neil Schulman from his book Stopping Power, and I have to admit I had forgotten about it too, even though I have a PDF copy of his book on my hard drive. You can buy a copy, like I did several years ago, at www.pulpless.com for $3.95. It’s worth the download time, and more than worth the price.
As I said, I have more to say on the topic, but once again I find that I will be repeating myself. My area of interest – rights in general and the right to arms in particular – is rather narrow though very deep, so when I’m writing about it for a general audience I find that I must keep hammering at certain fundamentals and that means repetition. Hopefully after two years of this, and an apparently slowly growing readership, I’m reaching some new people and not boring the hell out of the rest. Thank you for bearing with me.
Ian’s post and Schulman’s piece weren’t written to inspire dialog on the similarities and differences between an “intelligentsia” and a “militia,” nor to argue the meaning of “well regulated.” They were both trying to illustrate that words mean things. And further, that the founding document of this nation is a legal CONTRACT. This is a point that Supreme Court Justice Antonin Scalia keeps making time and time again in his public speaking. “How,” he once asked an audience rhetorically, “do you write a moderate contract?” And if the courts can decide that the words in a contract can mean whatever they want them to mean, then the contract isn’t worth the paper it’s written on:
If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.
Absolutely right. Now bear with me again, because I’m going to quote quite a passage from a speech Justice Scalia made on March 14th of this year that makes his point explicitly:
Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise – not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.
Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the “Living Constitution,” judges did their distortions the good old fashioned way, the honest way – they lied about it. They said the Constitution means such and such, when it never meant such and such.
It’s a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution. And the judge can simply say, “Oh yes, the Constitution didn’t used to mean that, but it does now.” We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes. I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs.
Well, let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law.
It’s one thing for a state to amend it’s libel law and say, “We think that public figures shouldn’t be able to sue.” That’s fine. But the courts have said that the First Amendment, which never meant this before, now means that if you are a public figure, that you can’t sue for libel unless it’s intentional, malicious. So that’s one way to do it.
Another example is the Constitution guarantees the right to be represented by counsel. That never meant the state had to pay for your counsel. But you can reinterpret it to mean that.
That was step one. Step two, I mean, that will only get you so far. There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.
What substantive due process is is quite simple – the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.
Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.
Just to insert, the Dred Scott court listed “those liberties that are fundamental to a democratic society and rooted in the traditions of the American people” and here I repeat Chief Justice Taney’s listing of the rights that could not be conferred upon blacks, free or slave:
(Citizenship) would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
Those liberties. In 1856 the Supreme Court wasn’t yet willing to reinterpret a “living Constitution,” so instead the Court’s members decided that excluding an entire race of people from its protections was perfectly valid. It’s only a little damage, and it’s for public safety, you know.
Scalia continues:
Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.
And, we see even more damage done in the name of that “Living Constitution” idea. Erosion of the First Amendment protections on political speech under McCain-Feingold. The continuing decimation of the Fourth and portions of the Fifth Amendment because of the War on (some) Drugs™, and the continuous assault on the Second Amendment under the aegis of “public safety,” just to name a few.
A while back I argued with Professor Saul Cornell of Ohio State University’s Second Amendment Research Center, making much the same points I’m making here. (See? Repeating myself.) Professor Cornell doesn’t believe the Second Amendment means what it says. Neil Schulman contacted an expert on the English language and asked him to parse the idea that Ian mildly reworded. Here is what Neil found:
I just had a conversation with Mr. A.C. Brocki, Editorial Coordinator for the Office of Instruction of the Los Angeles Unified School District. Mr. Brocki taught Advanced Placement English for several years at Van Nuys High School, as well as having been a senior editor for Houghton Mifflin. I was referred to Mr. Brocki by Sherryl Broyles of the Office of Instruction of the LA Unified School District, who described Mr. Brocki as the foremost expert in grammar in the Los Angeles Unified School District — the person she and others go to when they need a definitive answer on English grammar.
I gave Mr. Brocki my name, told him Sherryl Broyles referred me, then asked him to parse the following sentence: “A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed.”
Mr. Brocki informed me that the sentence was overpunctuated, but that the meaning could be extracted anyway.
“A well-schooled electorate” is a nominative absolute.
“[B]eing necessary to the security of a free State” is a participial phrase modifying “electorate.”
The subject (a compound subject) of the sentence is “the right of the people.”
“[S]hall not be infringed” is a verb phrase, with “not” as an adverb modifying the verb phrase “shall be infringed.”
“[T]o keep and read books” is an infinitive phrase modifying “right.”
I then asked him if he could rephrase the sentence to make it clearer. Mr. Brocki said, “Because a well-schooled electorate is necessary to the security of a free state, the right of the people to keep and read books shall not be infringed.”
I asked: “can the sentence be interpreted to restrict the right to keep and read books to a well-schooled electorate — say, registered voters with a high-school diploma?” He said, “No.”
I then identified my purpose in calling him, and read him the Second Amendment in full: “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.”
He said he thought the sentence had sounded familiar, but that he hadn’t recognized it.
I asked, “Is the structure and meaning of this sentence the same as the sentence I first quoted you?” He said, “yes.” I asked him to rephrase this sentence to make it clearer. He transformed it the same way as the first sentence: “Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
I asked him whether the meaning could have changed in two hundred years. He said, “No.”
I asked him whether this sentence could be interpreted to restrict the right to keep and bear arms to “a well-regulated militia.”
He said, “no.” According to Mr. Brocki, the sentence means that the people are the militia, and that the people have the right which is mentioned.
I asked him again to make sure:
Schulman: “Can the sentence be interpreted to mean that the right can be restricted to ‘a well-regulated militia?'”
Brocki: “No, I can’t see that.”
Schulman: “Could another professional in English grammar or linguistics interpret the sentence to mean otherwise?”
Brocki: “I can’t see any grounds for another interpretation.”
I asked Mr. Brocki if he would be willing to stake his professional reputation on this opinion, and be quoted on this. He said, “Yes.”
At no point in the conversation did I ask Mr. Brocki his opinion on the Second Amendment, gun control, or the right to keep and bear arms.
Stopping Power, pp. 151-152
However, people like Professor Cornell, Senator Diane Feinstein, the Violence Policy Center’s Josh Sugarmann and thousands if not millions of others are quite willing to ignore the plain meaning of the sentence and “interpret” the Second Amendment, and they are ecstatic when judges (such as the three on the bench when the 9th Circuit decided Hickman v. Block) decide things the way they’d like, rather than the way the Constitution is supposed to constrain them. As I quoted before, even überliberal Alan Dershowitz understands the inherent dangers:
Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it’s not an individual right or that it’s too much of a public safety hazard, don’t see the danger in the big picture. They’re courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don’t like.
Yet it’s been going on for decades, and the Second Amendment is hardly the only one under such attack.
Scalia again:
If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society – if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask.
If that is what you think the Constitution is, then Marbury v. Madison is wrong. It shouldn’t be up to the judges, it should be up to the legislature. We should have a system like the English – whatever the legislature thinks is constitutional is constitutional. They know the evolving standards of American society, I don’t. So in principle, it’s incompatible with the legal regime that America has established.
Secondly, and this is the killer argument – I mean, it’s the best debaters argument – they say in politics you can’t beat somebody with nobody, it’s the same thing with principles of legal interpretation. If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it – the original meaning of the Constitution – I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. When I find that the original meaning of the jury trial guarantee is that any additional time you spend in prison which depends upon a fact must depend upon a fact found by a jury – once I find that’s what the jury trial guarantee means, I am handcuffed. Though I’m a law-and-order type, I cannot do all the mean conservative things I would like to do to this society. You got me.
Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? Think about that. Natural law? We all agree on that, don’t we? The philosophy of John Rawls? That’s easy. There really is nothing else. You either tell your judges, “Look, this is a law, like all laws, give it the meaning it had when it was adopted.” Or, you tell your judges, “Govern us. You tell us whether people under 18, who committed their crimes when they were under 18, should be executed. You tell us whether there ought to be an unlimited right to abortion or a partial right to abortion. You make these decisions for us.” I have put this question – you know I speak at law schools with some frequency just to make trouble – and I put this question to the faculty all the time, or incite the students to ask their Living Constitutional professors: “Okay professor, you are not an originalist, what is your criterion?” There is none other.
And here’s where I quote (again) my favorite justice on my pet topic, 9th Circuit Justice Alex Kozinski, in his dissent to the denial to hear Silveira v. Lockyer en banc:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon – a sawed-off shotgun – was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller‘s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.
The majority falls prey to the delusion – popular in some circles – that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth – born of experience – is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.
All too many of the other great tragedies of history – Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few – were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:
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.
The sheer ponderousness of the panel’s opinion – the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text – refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it – and is just as likely to succeed.
(All emphasis in original, most legal references removed for clarity.)
Now there’s a man who can read and understand a sentence.
“The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees.” And what might give the government the belief that it could refuse to stand for reelection? What might strip the courts of their “courage to oppose” or the people their power to resist?
How about the systematic evisceration of the Constitution by making it a “living document” decided on by nine black-robed Justices who have, as Scalia pointed out, divorced themselves from the restrictions of that document. And we’ve let them. Scalia one more time:
The worst thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to 19 years ago now, by a vote of 98 to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it 100. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man — somebody who could read a text and give it its fair meaning — had judicial impartiality and so forth. And so I was unanimously confirmed. Today, barely 20 years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.
And that way lies chaos.
The point of Ian’s post is that words mean things, and the Second Amendment is a clause in the legal contract that established this nation. Whether you like it or not is immaterial. There is, in that legal contract, a method by which it can be changed – the amendment process. Yet not once have I seen any gun control group suggest that the Second Amendment be repealed through that process. Instead they have grasped the “living Constitution” concept and tried to redefine the meaning to mean what they want, rather than what it really means. The same for abortion, gay rights, property seizure under RICO statutes, “campaign finance reform” limits on political speech, and so on.
Ian’s argument was no straw-man. The “intelligentsia” vs. “militia” wording was immaterial, yet most of his respondents tried to parse the sentence and argue minutia, avoiding the blindingly obvious.
I’ve said it before, the Founders tried to make a foolproof system, but we keep making better fools.