“Adaptation”? Or “Contrary to Principle”?

I’m going to skip the “Few More Points” post because, at this point, it’s irrelevant to the legal question, and we’ve still not exhausted (a word chosen with care) that topic. This is where our differences are most stark, and for purposes of illustrating those differences, I must continue on this thread.

You said:

The ONLY reason that the constitution is as powerful as it is that it is a living document- it adapts. Not willy nilly, “hey I am this kind of law now” type changes, but gradual, powerful change like a sea change.

But you quote FindLaw:

The part that I think you forget is the “The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports.” part of the concept. Yes, the burden of proof is on anyone that wants to challenge a previous meaning or precedent- “rightly onerous” as the quote above says. But it emphasizes that this can, and must, at times be done.

I see your point. I disagree that Miller did what you claim. And I strongly disagree with the “living document” concept, as it negates the rule of law –

This policy . . . ‘is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.’

There are a couple of points I think you dismiss far too easily. The first is that the Bill of Rights isn’t just a bunch of laws dealing with, for instance, the sale of property between private parties, or regulations concerning the operation of motor vehicles. These were laws placed in the Constitution in order to limit the power of the Federal government from infringing or abridging the pre-existing rights of “the people.” All of us. The second is that, by going ahead and infringing on those rights under the “changed social conditions” excuse, we run the very real risk of destroying the Constitution and everything built upon it. You disagree, but I will attempt to illustrate why I say this, using examples.

The Bill of Rights is a set of rules that says “hands off!” But your “living document” philosophy says, “well, it meant that then, but it can’t mean that now. Things have changed.” I’ve illustrated that the Dred Scott decision (in dicta) and the Cruikshank decision (not in dicta) proclaimed that the right protected by the Second Amendment was the right to keep and carry weapons “for lawful purpose.” I said there were two cases prior to Miller that addressed the Second Amendment directly, and that Cruikshank was the first. The second was Presser v. Illinois (1886). Presser relied on Cruikshank as precedent. I’m not going to go into the history of the decision, please read it at your leisure, but this is what it said regarding militias:

We are next to inquire whether the fifth and sixth sections of article 11 of the Military Code are in violation of the other provisions of the constitution of the United States relied on by the plaintiff in error. The first of these is the second amendment, which declares: ‘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.’

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms ‘is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the ‘powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,’ ‘not surrendered or restrained’ by the constitution of the United States.’

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

In U.S. v. Miller the court waxed eloquent on who and what were the militia, and indeed they did say,

With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

But again, the court did not reject Miller’s motion to dismiss based on his membership in a militia (he was not a member.) And it did not overrule the legal holding in Presser that “the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”

It has subsequently been interpreted to do so, however. Erroneously in my opinion (and others.)

If, as you claim, the Miller decision departed from stare decisis in order to “overrule cases that have been hastily decided or (are) contrary to principle,” I have to wonder at the fact that it mentioned Presser only in a footnote, and Cruikshank not at all. Neither case was quoted.

This is where we have to discuss bad law – judicial decisions made either weaselling around what the law said, or controverting the law in part or in whole. These decisions do occur – else there would be no need to dispense with stare decisis and overturn them – but what you advocate here isn’t, in my opinion, the “adaptation” of the Constitution for the greater good, but the revision of law “contrary to principle” by the courts, thus bypassing the legislatures and “the people.” You cheerfully put that power into the hands of what I called “black-robed oligarchs.” And I meant it.

The Miller decision is the textbook example of the Supreme Court weaselling its way out of a tight spot. The 1934 National Firearms Act was debated heatedly in Congress, and there is a lot of historical documentation of its genesis. One of the things considered was the banning of handguns, since then as now handguns were the “weapon of choice” of criminals. This provision was either never formally added or later stripped because even in 1934 our Congresscritters understood that banning guns was a violation of the Second Amendment, and more importantly, a lot of good people owned handguns and wouldn’t vote for them in the next election if they tried it. Congress also understood that the Second Amendment was pretty explicit on the “shall not be infringed” language, but the Constitution also had the “commerce clause,” and Congress believed that using that excuse they could pass the 1934 NFA as a “revenue measure,” even though it was really a gun control measure.

The 1934 NFA was the result, in part, of one of America’s greatest brain-farts, Prohibition, but at least there we went through the legal exercise of amending the Constitution according to its rules. The ’34 NFA was an attempt to regulate and control the weapons of criminals – specifically those involved in bootlegging: fully-automatic weapons, short-barreled rifles, short barreled shotguns, and suppressors (silencers.) Congress tried to make this legal not by simply banning these weapons and accessories, but by taxing them – and establishing a registry (so that they could track the transfer taxes, of course.) Note that they didn’t try to do this to all weapons, just these specific guns used by the more notorious criminals in the more spectacular crimes. Of course, Prohibition was repealed (and most of the violent crime associated with it disappeared) in 1933, so one could be cynical and say that the real purpose of the ’34 NFA was to keep employed all those Revenuers who now had a vastly decreased workload. It was a pair of Revenuers who arrested Miller and Layton while investigating what they hoped was an illegal still, but all they found was Miller’s sawed-off shotgun.

In the mid-to-late 1930’s (the height of the Depression) FDR was shoving a lot of legislation through Congress, and much of it (in my opinion and in the opinion of a lot of other people) violated the Constitution. FDR was severely put out by the Supreme Court overturning the legislation he backed on Constitutional grounds so much that in 1937 he threatened to “pack the court” with judges who would see things his way (rather than the Constitutional way). FDR believed, as you do, that changing or circumventing the Constitution was necessary in order to adapt to the times. He just did so without using the rules written into it. He played upon public fear and anger to accomplish this, coercing the Court into backing down, instead of using his oratorical powers to convince the public to amend the Constitution (which I believe he probably could have done, but didn’t want to wait for.) This is an entire topic unto itself, but it’s necessary background.

Here’s background on the Miller case that’s important to understand so that you can place this very important case in its historical context. Some excerpts from this excellent source:

On September 22, 1938, the Fort Smith, Arkansas, Southwest American reported that “Jack Miller and Frank Layton of Claremore were re-indicted on a charge of transporting a sawed-off shotgun from Claremore to Siloam Springs last April 18.” Both Miller and Layton had originally pleaded guilty upon their first indictment, but Federal Judge Heartsill Ragon suggested they withdraw their plea and appointed a lawyer to represent them. In the ensuing arguments, Judge Ragon sustained the lawyer’s demurrer to the indictment, holding that the National Firearms Act of 1938 was unconstitutional. The prosecution then appealed the case to the Supreme Court.

The actual demurrer filed by Paul Gutensohn, Miller & Layton’s lawyer:

Come the defendants, Jack Miller and Frank Layton, and demur to the indictment, and for grounds thereof state:

1. That the indictment fails to state sufficient facts to constitute a crime under the laws and statutes of the United States.

2. That the alleged criminal act contained in the indictment as a violation of Title 26, Section 1132, United States Code, an Act of Congress known as National Firearms Act, approved June 26, 1934, and the provisions thereof, is not a revenue measure and is an attempt to usurp the police powers of the State and reserved by the States of the United States, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

3. That the Second Amendment to the Constitution of the United States provides: “A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;” that the said “National Firearms Act” is in violation and contrary to said Second Amendment and particularly as charging a crime against these said defendants, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

4. That the indictment herein charges the violation of Section 1132 (c) and Section 1132 (j) in which it is made unlawful to transfer a firearm which has previously been transferred on or after the 30th day of June, 1934, in addition to complying with subsection (c), transfers therewith the stamp affixed order; that there is no charge in the said indictment that the said defendants made any transfer whatsoever of the double-barrel 12 guage shotgun having less than 18 inches in length, and said indictment, therefore, does not charge facts sufficient to constitute a crime under the statutes of the United States.

5. That the indictment charges the defendants “not having in their possession a stamp affixed written order for said firearms, as provided and required by Section 1132(c) and section 1132(j) Title 26, United States Code, and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, approved June 26, 1934”; that said Section 1132(c) and Section 1132(j) does not make it a violation to merely fail to possess a stamp affixed written order for said firearms, and a failure to charge a transfer of said firearms by or to the said defendants, fails to set forth facts sufficient to constitute a crime under the statutes of the United States.

And Judge Ragon’s entire decision:

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132 c, Title 26 U. S. C. A., and the regulations issued under the authority of said Act of Congress known as the National Fire Arms Act.

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States.

The indictment is based upon the Act of June 26, 1934, c.757, Section 11, 48 Statute 1239. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States providing, “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 demurrer is accordingly sustained.

Now, I don’t know about you, but I find it fascinating that this case bounced directly from the Western District Federal Court of Arkansas on June 11, 1938, right past the 8th Circuit Court of Appeals (where normally it would have gone through a three-judge panel, and then possibly an en banc re-hearing before proceeding), directly to the Supreme Court. The appeal was filed January 30; the Court rendered its opinion on May 15.

Breakneck speed, don’t you think? And I find it even odder that the Court heard only the Government’s side, since no one represented Miller & Layton.

Now, given all that, the question is “why the urgency?” And second, what did the Supreme Court actually decide? As I’ve said, the 9th Circuit has declared that the Miller decision means the Second Amendment protects only the State’s right to a militia. The 5th Circuit disagrees. And here we have an example of how this is supposed to work.

Dr. Timothy Joe Emerson was charged with violation of section 922(g)(8) of the U.S. Code. The Federal District Court found that said section violated the Second Amendment of the Constitution. That decision was appealed – not to the Supreme Court, but to the 5th Circuit. The 5th Circuit reversed the lower court, but still we have a split between circuits, and the 5th Circuit’s U.S. v Emerson decision is very interesting to read as it does an “original meaning” analysis of the Second Amendment and it examines U.S. v Miller in detail.

Here’s the pithy part of the decision with regard to Miller:

The Court notes that several other federal courts have held that the Second Amendment does not establish an individual right to keep and bear arms, but rather a “collective” right, or a right held by the states. However, the only modern Second Amendment case from the Supreme Court is United States v. Miller, 307 U.S. 174 (1939). Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the National Firearms Act of 1934. Among other things, Miller had not registered the firearm, as required by the Act. The court below dismissed the charge, accepting Miller’s argument that the Act violated the Second Amendment.

The Supreme Court reversed unanimously, with Justice McReynolds writing the opinion. Interestingly enough, he emphasized that there was no evidence showing that a sawed-off shotgun “at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia.” And “certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Thus, Miller might have had a tenable argument had he been able to show that he was keeping or bearing a weapon that clearly had a potential military use. Justice McReynolds went on to describe the purpose of the Second Amendment as “assuring the continuation and rendering possible the effectiveness of [the Militia].”

It is difficult to interpret Miller as rendering the Second Amendment meaningless as a control on Congress. Ironically, one can read Miller as supporting some of the most extreme anti-gun control arguments; for example, that the individual citizen has a right to keep and bear bazookas, rocket launchers, and other armaments that are clearly used for modern warfare, including, of course, assault weapons. Under Miller, arguments about the constitutional legitimacy of a prohibition by Congress of private ownership of handguns or, what is much more likely, assault rifles, thus might turn on the usefulness of such guns in military settings.

Miller did not answer the crucial question of whether the Second Amendment embodies an individual or collective right to bear arms. Although its holding has been used to justify many previous lower federal court rulings circumscribing Second Amendment rights, the Court in Miller simply chose a very narrow way to rule on the issue of gun possession under the Second Amendment, and left for another day further questions of Second Amendment construction.

Emerson was appealed to the Supreme Court, and was denied cert. That decision stands as written in the 5th Circuit. Now, the part you’d probably be interested in regarding Emerson is this:

The district court held that section 922(g)(8) was unconstitutionally overbroad because it allows second amendment rights to be infringed absent any express judicial finding that the person subject to the order posed a future danger. In other words, the section 922(g)(8) threshold for deprivation of the fundamental right to keep and bear arms is too low.

Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Indeed, Emerson does not contend, and the district court did not hold, otherwise. As we have previously noted, it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms.

This is something crucial to understand in this debate. It is legal to restrict the right to arms – on an individual basis and under due process of law (said process in this case being met, according to the Court, “albeit likely minimally so.”) However, allowing the ’34 NFA to stand has put us on “the slippery slope.” (Hey, you can use “living document,” I get to use “slippery slope.”)

I said I would illustrate the problem of the “living document” method using examples. Example 1 is Miller – and the subsequent destruction of the protection the Second Amendment provides for the individual right to arms in the 9th Circuit. We go from having a right to “keep and carry weapons” wherever we go, so long as it is for “a lawful purpose,” to not having any individual right at all (if we live in the 9th Circuit.) Another example, and an even better one at that, is Kelo v New London, since it happened much, much faster and more innocuously.

Kelo is the result of two precedent-setting cases, Berman v. Parker (1954), and Hawaii Housing Authority v. Midkiff (1984). As we know, Kelo basically destroyed the “takings” clause of the Fifth Amendment, which reads:

…nor shall private property be taken for public use, without just compensation.

Prior to these three decisions the “public use” clause was understood to mean “for use by the public,” e.g., roads, parks, railway easements, etc. With Berman that meaning was expanded to allow the taking of property for commercial development but only if said property was in “blighted” areas, and only if there was an “integrated plan” for the use of the property. The Midkiff decision said that it was perfectly legal to take unblighted land for redistribution to the tenants upon it. It was a short hop to Kelo which said that it was A-OK to take unblighted land without an “integrated plan” and give it to developers because doing so would be a “public good” by increasing property tax revenues.

Had the Court in Berman held that the taking of non-blighted property for commercial purposes was in violation of the “takings clause” we’d (probably) never have gotten the Kelo decision, but given stare decisis it is unsurprising that “many members of the court” that you “personally admire” found as they did. But they shouldn’t have. This is a perfect example of when stare decisis should be abandoned because to do otherwise would run “contrary to principle.”

Julian Sanchez wrote a piece in the June 30 online issue of Reason entitled A Heap of Precedent. He makes a very pertinent point:

There’s a famous philosophical puzzle, originally attributed to Eubulides of Miletus, known as the sorites paradox or heaps problem. It goes like this: Two or three grains of sand obviously don’t constitute a “heap” of sand. And it seems absurd to suppose that adding a single grain of sand could turn something that wasn’t a heap into a heap. But apply that logic repeatedly as you add one grain after another, and you’re pushed to the equally absurd conclusion that 100,000 grains aren’t a heap either. (Alternatively, you can run the logic in the other direction and prove that three grains of sand are a heap.)

It’s not a terribly deep puzzle, of course: It simply illustrates that some of our everyday concepts, like that of a heap, are vague or fuzzy, not susceptible to such precise definition. Try to define such concepts in too much detail and absurdity results.

The problem is, concepts like “interstate commerce,” “public use,” “unreasonable search,” and “cruel and unusual” are similarly fuzzy. And stare decisis, the principle that cases are to be decided by reference to previous rulings, means that the Court’s interpretation of those rulings looks an awful lot like a process of adding one grain at a time without ever arriving at an unconstitutional heap—an instance of what law professor Eugene Volokh has called an “attitude altering slippery slope.” Jurisprudence is all about distinguishing cases, explaining why some legal principle applies in situation A, but not in apparently similar situation B. But if the grains are fine enough — the differences from case to case sufficiently subtle — plausible distinctions become harder to find.

From Berman to Midkiff to Kelo seems to me to be a very short, and very grainy example of the slippery slope. Sanchez also notes in his piece:

Stare decisis is an important guarantor of stability in legal rules: By insisting on like treatment of like cases, it provides people with a more detailed sense of when they’re engaged in constitutionally protected conduct than the stripped-down language of the Constitution alone ever could. But legal rules, to be legitimate, should also reflect a shared public understanding. That’s not to say the polls must vindicate each particular court ruling. But when stability begins to undermine the public’s sense that they understand the most fundamental rules by which they’re governed, it’s a sign that jurists need to be willing to step back and see the heap.

And here’s where I hope we can conclude this portion of the discussion on the law. As I quoted before, Antonin Scalia has said:

To some degree, a constitutional guarantee is like a commercial loan, you can only get it if, at the time, you don’t really need it. The most important, enduring, and stable portions of the Constitution represent such a deep social consensus that one suspects if they were entirely eliminated, very little would change. And the converse is also true. A guarantee may appear in the words of the Constitution, but when the society ceases to possess an abiding belief in it, it has no living effect. Consider the fate of the principle expressed in the Tenth Amendment that the federal government is a government of limited powers. I do not suggest that constitutionalization has no effect in helping the society to preserve allegiance to its fundamental principles. That is the whole purpose of a constitution. But the allegiance comes first and the preservation afterwards.

Some 25% of adults in this country own a firearm. Guns are in about 40% of all homes. When gun control laws go on a ballot they most often lose, and usually badly (“Yes, I support more effective gun control, but not THAT!“). The public, a large portion of it, possesses an abiding belief that the Second Amendment protects an individual right to arms. We believe that the right can be restricted, on an individual basis, after due process of law, but we really do believe in that right. Some who believe in that right identify themselves as liberal, and many who believe in that right don’t even own guns. Laurence Tribe, professor of law at Harvard, noted and self-described liberal, and author of the textbook American Constitutional Law used in most ConLaw classes today wrote this in that text:

Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm ‘We the People’ so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.

He believes in the individual right to arms too, and does not consider it outdated.

Because the gun control movement has failed to change that abiding belief enough to pass popular gun control legislation, they have attempted to use the courts to force the issue – to “legislate from the bench” as it is termed. They’ve had little success, but what they have accomplished is a reduction in public respect for the courts. They’ve had a lot of help. The Kelo and to some extent Raich v Gonzales cases are just the more egregious examples.

Sanchez said “…when stability begins to undermine the public’s sense that they understand the most fundamental rules by which they’re governed…, I think he missed something that I accused you of earlier – the desire for outcome over process. Had Berman been decided holding to the earlier understanding of “public use” we wouldn’t be where we are today. Had Midkiff reversed (or at least not extended) Berman, again we would not be where we are today. Vast areas of D.C. might still be “blighted,” and vast tracts of Hawaiian real-estate might still belong to the original owners, and that might not be the most ideal outcome, but no one would fear that their house or business might be taken from them because the town they live in wants more property taxes.

What you advocate risks public disrespect for law. A lot of people do not see government as benevolent, but as a necessary evil. I am one of them, and there are many, many more like me. Albert Einstein once said, “The strength of the Constitution lies entirely in the determination of each citizen to defend it. Only if every single citizen feels duty bound to do his share in this defense are the constitutional rights secure.” The “living Constitution” concept, by doing an end run around public opinion, harms this determination. Following the letter of the Constitution, even when it gives results we don’t like means that public opinion will grow and change and bring about revision of the Constitution to meet our changing needs – revision carried out using the mechanism designed into it, else we don’t really need to change it. We can still make mistakes this way; Prohibition proves that, but we will make mistakes at a much slower rate. But judicial activism – violating the Constitution because it just doesn’t meet today’s needs – slowly destroys our respect for law.

The Constitution is there to protect the rights of the minority. It has been abused, but the “living document” philosophy will result in its rot and corruption from within.

The Second Amendment to the Constitution protected a pre-existing right to arms. The exact scope of that right has never been determined, but at a minimum it protected the right to keep and carry weapons of military usefulness “for a lawful purpose.” If you believe that, then no law passed by the states nor Congress can repeal that right, and any attempt to do so will result in wholesale disregard for the law. And the right to arms is far from the only right under attack in this manner.

(Pardon me if you find any typos. I haven’t got the time to edit this piece thoroughly.)

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Note: Alex never responded to this post, and I have never heard from him again.

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