As Promised, Fisk #3 or: Next Up at the Plate, Erwin Chemerinsky!

Duke University Professor of Law and Political Science Erwin Chemerinsky has attempted another shrill, frantic refutation of last Friday’s Parker v. D.C. decision. Published in Wednesday’s Washington Post, it’s entitled A Well-Regulated Right to Bear Arms. Professor Chemerinsky is a regular guest on right-wing radio host and blogger Hugh Hewitt’s afternoon radio show along with Chapman University’s John Eastman. Each week they discuss the legal news and offer their opinions on what happens to be the case of the moment.

I’m fully convinced that Hugh chose Erwin for his radio guest for the same reason Fox News chose Alan Colmes for their nightly television show. Aside from his Leftism, Erwin has a voice suitable for the print media, just as Alan Colmes has a face for radio. But then, that’s just my personal opinion. A lot of people think Bob Dylan can sing.

Anyway, as a bit of background, I’ve posted a couple of times on one exchange between Chemerinsky and Eastman. On Wednesday, June 8, 2005 they discussed the appointment of Janice Rogers Brown to the D.C. Circuit Court of Appeals (please, please let the court re-hear Parker en banc. And let Judge Brown write the decision!) As the Geek with a .45 has noted, you’re going to hear the phrase “Contradicting 70 years of Constitutional Jurisprudence” a lot for the next few weeks or months. You heard it or its equivalent here first, 6/8/05 in this exchange:

John Eastman: You know, I mean, it’s just so preposterous, I don’t even know where to begin. The reason Chuck Schumer is so upset about this, is Justice Brown is the kind of judge who will, you know, adhere to the Constitution. And when the members of the legislature, even the exalted Chuck Schumer himself, want to take actions that is not authorized by the Constitution, she’ll be willing to stand up and do her duty, and strike it down. That’s not an arrogance, that’s what the judges are there for, to adhere to the Constitution, and not to let the legislature roll over them and do whatever they want. You know, it really is preposterous. We’ve turned this upside down. The judges that do exactly what they’re supposed to do are demonized, and those that take a powder and let the legislature get away with every abuse, every extension of power imaginable, are touted at the cocktail circuit.

Erwin Chemerinsky: I think what Senator Schumer is saying, and is absolutely right, is that Janice Rogers Brown’s repeated statements that she believes that the New Deal programs like social security are unconstitutional, is truly a radical view. That’s not a judge who wants to uphold the Constitution. That’s a judge who wants to shred the last eighty years of American Constitutional law. Janice Rogers Brown saying she believes that the Bill of Rights should not apply to the states, would undo the last seventy years of Constitutional law. That’s not a judge who wants to follow the law. That’s a judge who wants to make the law in her own radical, conservative views.

John Eastman: Hang on, here, because Erwin…there’s a wonderfully subtle change in your phraseology that demonstrates what’s going on here. You said she won’t follow the Constitution, and then you said it’s because she won’t follow the last seventy or eighty years of Constitutional law. What happened seventy or eighty years ago that changed the Constitution? There was not a single amendment at issue in the 1930’s that changed the Constitution. Some radical, federal programs were pushed through. Some radical judges, under pressure, finally signed on them, and the notion that we can’t question that unconstitutional action that occurred in the 1930’s, and somehow that defending that unconstitutionality is adherent to the rule of law, is rather extraordinary. There are scholars on left and right that have understood that what went on in the 1930’s was…had no basis in Constitutional law, or in the letter of the Constitution itself.

Yes, it’s “activism” to uphold the original meaning of the Constitution, but it’s not activism to make up law out of whole cloth, or rip a right out of the Constitution with one judicial decision. As I’ve said before, the Left isn’t afraid of “irreversible change.” They’re afraid of reversal of their changes. And, typically, they won’t come out and say that.

Professor Chemerinsky continues in the same vein in his op-ed. One more time, let us fisk:

In striking down the District of Columbia’s handgun ban last week, a federal appeals court raised the crucial constitutional question: What should be the degree of judicial deference to government regulation of firearms? The decision by the U.S. Court of Appeals for the D.C. Circuit interpreted the Second Amendment as bestowing on individuals a right to have guns.

Bzzzzzt! I’m sorry Erwin, but only two sentences into your op-ed and you’ve told a blatant lie already. Let’s go to the decision itself, shall we?

The wording of the operative clause also indicates that the right to keep and bear arms was not created by government, but rather preserved by it. Hence, the Amendment acknowledges “the right . . . to keep and bear Arms,” a right that pre-existed the Constitution like “the freedom of speech.” Because the right to arms existed prior to the formation of the new government, see Robertson v. Baldwin, 165 U.S. 275, 280 (1897) (describing the origin of the Bill of Rights in English law), the Second Amendment only guarantees that the right “shall not be infringed.”

(One legal citation removed for better readability.) Yes, Erwin, the Second Amendment doesn’t bestow anything. It protects what the Founders considered a natural right that existed prior to the establishment of the government formed under the Constitution – thus that right could not be the right of a political entity that did not exist prior to ratification of the Constitution and the Bill of Rights.

Strike one.

But even if this reasoning is accepted, and it is very much disputed, the Court of Appeals still should have upheld the law as being a reasonable way of achieving the government’s legitimate goal of decreasing gun violence.

(Emphasis mine.) The fact that Erwin could actually type those words demonstrates just how factually and morally bankrupt the anti-gun position is. “(A) reasonable way of achieving the government’s legitimate goal of decreasing gun violence”? In Washington D.C.???

Stipulated: The three laws challenged by the Parker suit effectively disarm one group and one group only – the law-abiding residents of and visitors to the District.

Stipulated: According to this site, the 1976 homicide rate in D.C. was 26.8/100,000 population (down a bit from 32.8 the previous year.) After passage of those gun restrictions, the homicide rate hovered about that level – going as high as 35.1 in 1981 and as low as 23.5 in 1985 (the only year it dropped below 26.8) before shooting up in 1988 to 59.5 and peaking in 1991 at 80.6. Along with the rest of the nation, D.C.’s violent crime rate dropped after that, but as of 2005 it was still 35.4/100,000.

Here’s a map of the D.C. metropolitan area:

Alexandria Virginia abuts Washington. According to the FBI in 2005 the homicide rate there was 2.3/100,000 population. Virginia is one of ten states that still allows open carry. I’m not suggesting cause and effect here, but I am pointing out that allowing citizens to own guns – even carry them in public – does not mean tremendous homicide rates. The point is, disarming the law-abiding citizens has had no beneficial effect on homicide rates in the District, and anyone with half a brain understands how unreasonable such a belief truly is.

But Erwin thinks such laws are “a reasonable way of achieving the government’s legitimate goal of decreasing gun violence.”

I’m sorry Erwin. Strike two.


There is a major debate among scholars and judges involving two competing views of the Second Amendment. One approach, adopted by the Supreme Court in 1939 and by most federal courts of appeals, sees the Second Amendment as preventing Congress from regulating firearms in a manner that would keep states from adequately protecting themselves.

This “collective rights” approach rejects the idea that the Second Amendment bestows on individuals a right to have guns. The alternative view, adopted by the D.C. Circuit on Friday, sees the Second Amendment as creating a right for individuals to have firearms.

Erwin, repeating and re-repeating a lie does not make that lie true.

Foul ball.

Each approach is consistent with the text of the Second Amendment, and each is supported by strong historical arguments about the original meaning of the provision. The Second Amendment says: “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.” Those who take the collective rights approach focus on the initial language of the provision, while those who take the individual rights approach focus on the latter language.

Ooooh, another foul. Not precisely, Erwin. The “collective rights” side demands that the prefatory clause completely encompass the right protected by the operative clause. The individual rights proponents understand that we are the militia. The fact that a “well-regulated” militia does not today exist ain’t our fault. But we know that citizens possessing their own firearms makes the possibility of the formation of a militia. Just ask the Algiers Point Militia, and those like them that form after disasters – natural and man-made – that result in a breakdown of official law enforcement and leave us exclusively to fend for ourselves.

We the People are the government, Erwin. The ones drawing a federal, state, or local government paycheck aren’t our masters, they’re our employees. And the sooner we get back to that understanding, the better off we’ll all be.

Each side of the debate marshals impressive historical arguments about what “militia” and “keep and bear arms” meant in the late 18th century. In the past few years, two other federal courts of appeals exhaustively reviewed this history, and one determined that the Framers intended the individual rights approach, while the other read history as supporting the collective rights approach.

That would be the Fifth Circuit, finding in 2001 for an individual right in U.S. v Emerson, and the Ninth Circuit in 2002’s Silveira v Lockyer. I’ve read both. If it weren’t so important, it would be quite amusing to reflect on the fact that the Ninth Circuit uses Silveira to attack Emerson. The court in Emerson performed a thorough “strict scrutiny” examination the law under question, but it first had to determine whether such a right existed in order to do so. “Strict scrutiny” is a test reserved “only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right.” Most of the opponents of the Emerson decision protest that a strict scrutiny examination was not called for. After all, they argue, the right is not an individual one, so it can’t be a fundamental right. People like ACLU president Nadine Strossen who actually had the temerity to say “the fact that something is mentioned in the Constitution doesn’t necessarily mean that it is a fundamental civil liberty.”

Even though, you know, it’s the Second Amendment in the Bill of Rights.

The majority on the panel decided otherwise, and spent the better part of a 75 page decision (as did the D.C. Circuit court) studying the question in deep detail; an “original meaning” examination.

I think the fact that the right in question is #2 on the list might have had something to do with that.

But the fact remained that Emerson stood in strict opposition to the Ninth Circuit’s “collective rights” position first reached in its Hickman v Block decision of 1996. Here’s the Ninth’s exhaustively researched, deeply-considered, well thought-out reasoning behind their “collective rights” conclusion in Hickman:

We follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action.

That’s it. That’s their whole argument. The judicial equivalent of “Go away, boy. You’re bothering me.”

I think they were embarrassed by the level of scholarship involved in Emerson, myself. In Silveira the Ninth Circuit pulled out all the stops in order to justify their Hickman decision. Silveira was a unanimous decision, but one of the three judges wrote a “special concurrence” in which he – well, you read it:

It is well established that, as a threshold matter, this court must determine whether the plaintiffs have standing to assert their claim…. The plaintiffs in this case are simply not entitled to standing and thus I cannot join the court’s discussion of the merits of their Second Amendment claims.

Here, the court claims that “[a]lthough in every case we are required to examine standing issues first,… here an examination of that question requires us as a first step to conduct a thorough analysis of the scope and purpose of the Second Amendment. Only after determining the amendment’s scope and purpose can we answer the question whether individuals, specifically the plaintiffs here, have standing to sue.” Respectfully, I disagree. Previously, this court decided the scope and purpose of the Second Amendment. We are bound by that precedent. In Hickman, this court announced that the Second Amendment guarantees a collective right, not an individual right.

(Legal references removed for clarity.) In essence the Ninth Circuit declared in Silveira that they had to do what they didn’t even bother to attempt in Hickman, but judge Magill proclaims that because they had already “announced” (interesting choice of words, there) that the Second Amendment didn’t protect an individual right – without such an analysis – such an analysis wasn’t necessary.

Isn’t this known as “circular reasoning”?

To top it all off, the Ninth Circuit decided another case that same year, Nordyke v King, and used Hickman and Silveira as precedent – Hickman 14 times, Silveira 28 times.

You think they’d have cited somebody in Hickman.

But a crack showed in the fa├žade of the Ninth Circuit. Judge Gould concurred with the Nordyke opinion, but wrote in his special concurrence:

I join the court’s opinion, and write to elaborate that Hickman v. Block was wrongly decided, that the remarks in Silveira v. Lockyer about the “collective rights” theory of the Second Amendment are not persuasive, and that we would be better advised to embrace an “individual rights” view of the Second Amendment, as was adopted by the Fifth Circuit in United States v. Emerson consistent with United States v. Miller. We should recognize that individual citizens have a right to keep and bear arms, subject to reasonable restriction by the government. We should also revisit whether the requirements of the Second Amendment are incorporated into the Due Process Clause of the Fourteenth Amendment.

Our panel is bound by Hickman, and we cannot reach the merits of Nordyke‘s challenge to Second Amendment. But the holding of Hickman can be discarded by our court en banc or can be rejected by the Supreme Court if it decides to visit the issue of what substantive rights are safeguarded by the Second Amendment.

I write to express disagreement with the “collective rights view” advanced in Hickman and Silveira because I conclude that an “individual rights view” of the Second Amendment is most consistent with the Second Amendment’s language, structure, and purposes, as well as colonial experience and pre-adoption history.

(Again, my emphasis.) I’ve said it before, most recently in Game Over, Man

We depend upon the honor and intellectual honesty of the judges who make up the Justice system, yet it seems that those who are truly honest and honorable are outnumbered by those who are “willing to bury language that is incontrovertibly there.” The honest and honorable ones abide, under the rule of law, by precedent that is otherwise insupportable. The middling honest ones, the ones Justice Brandeis labled as “men of zeal, well-meaning but without understanding” “build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text.”

Judge Gould is apparently one of the (evidently few) intellectually honest and honorable.

And, of course, the appeal for an en banc rehearing was denied.

The Supreme Court denied cert, too.

Enough asides. Continuing:

The assumption in this debate, and one that the D.C. Circuit followed Friday, is that gun control laws are unconstitutional if the individual rights approach is followed. This assumption, though, has no basis in constitutional law. No rights are absolute. Even the First Amendment, which is written in the seemingly absolute language that Congress shall make “no law” abridging freedom of speech or religion, allows government regulation.

BZZZZZZT!!!! I’m sorry Erwin, but that’s strike THREE! Yer outtahere!

This is fear-mongering at its most blatant. “Oh no! There’ll be no more gun control laws! There’ll be armed felons in the streets carrying tactical nuclear weapons! The sky is falling, the sky is falling!”

The D.C. District court didn’t overturn U.S. v Miller, and the National Firearms Act is a gun control law. The court states explicitly:

Indeed, the right to keep and bear arms – which we have explained pre-existed, and therefore was preserved by, the Second Amendment – was subject to restrictions at common law. We take these to be the sort of reasonable regulations contemplated by the drafters of the Second Amendment. For instance, it is presumably reasonable “to prohibit the carrying of weapons when under the influence of intoxicating drink, or to a church, polling place, or public assembly, or in a manner calculated to inspire terror…” State v. Kerner. And as we have noted, the United States Supreme Court has observed that prohibiting the carrying of concealed weapons does not offend the Second Amendment. Similarly, the Court also appears to have held that convicted felons may be deprived of their right to keep and bear arms. These regulations promote the government’s interest in public safety consistent with our common law tradition. Just as importantly, however, they do not impair the core conduct upon which the right was premised.

You should slink off back under your rock now, Erwin you lying sack.

But you don’t:

The D.C. District Court ruled on the Constitutionality of the three laws at question.

Therefore, under the individual rights approach, there still is the question of what types of government regulations are appropriate.

Wait… Didn’t you just say that “(t)he assumption in this debate, and one that the D.C. Circuit followed Friday, is that gun control laws are unconstitutional if the individual rights approach is followed”??? Now you’re discussing “what types of government regulations are appropriate”?

Doesn’t bending yourself into a logical pretzel hurt?

But you’re still not finished:

For 70 years the Supreme Court has distinguished among constitutional claims in deciding how closely to scrutinize laws and how much to defer to legislatures. In instances where there is reason to distrust the government, such as for laws discriminating on the basis of race, “strict scrutiny” is used and the government can prevail only if its action is necessary to achieve a compelling purpose.

And we’ve got no reason to distrust the government about gun control? And there’s that “70 years” thing again. As John Eastman asked,

What happened seventy or eighty years ago that changed the Constitution? There was not a single amendment at issue in the 1930’s that changed the Constitution. Some radical, federal programs were pushed through. Some radical judges, under pressure, finally signed on them, and the notion that we can’t question that unconstitutional action that occurred in the 1930’s, and somehow that defending that unconstitutionality is adherent to the rule of law, is rather extraordinary.

This piece is long enough, but how many quotes do I need to drag out about the disarmament of citizens by government, you weasle? (Sorry Cowboy Blob and other ferret-lovers out there. It’s just an expression.)

But where there is little reason to doubt the legislatures’ choices, courts give great deference to the legislatures and uphold laws so long as they are reasonably related to a legitimate government purpose. For example, discrimination that is based on characteristics such as age, disability and sexual orientation need to meet only this more relaxed standard. Even rights enumerated in the Constitution, such as property rights, generally receive only this relaxed level of judicial review. For this reason, for 70 years, government regulation of the economy to protect employees and consumers has been upheld in the face of claims that it unduly restricts property rights.

Like Kelo v New London?

Oh, right. You were on the government’s side on that one, too, you statist fuckwit.

In other words, even if the D.C. Circuit is right in holding that the Second Amendment creates individual rights, that does not answer the question as to the level of scrutiny to be used in evaluating gun control laws. I believe that there is a strong argument that the regulation of guns should be treated the same as other regulation of property under modern constitutional law: The regulation should be allowed so long as it is rationally related to achieving a legitimate government purpose.

Again, Erwin, the Second Amendment doesn’t CREATE ANYTHING. It protects a pre-existing individual right to arms. Risking invocation of Godwin’s Law:

If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State. – Joseph Goebbels

(I don’t know if that quote is Goebbels’ or not, but it is eminently accurate in this context, whoever said it.) Every argument you make is predicated on the lie that the Bill of Rights creates the rights it is designed to protect, and for that if no other reason your arguments fail.

Under this standard, there is no doubt that the D.C. gun law is constitutional.

Thank jeebus even you can admit that.

The city’s government was pursuing the legitimate goal of decreasing gun violence, and its means were certainly reasonable.

And repeating this lie doesn’t make it any more true either. No, Erwin, they were not reasonable. Disarming the law-abiding without the ability to protect them (and no government can protect everyone, all the time) is not reasonable. Ask Carolyn Warren, Joan Taliaferro and Miriam Douglas. They found out the hard way as have thousands, nay, millions of others. Nor have those means proven in any way effective. But that doesn’t seem to matter to you in the least, so long as the State acquires more power.

The Supreme Court will probably review the D.C. Circuit decision. Whether the court takes the individual or the collective rights approach, it should uphold the D.C. law and make clear that courts will defer to legislatures in their regulation of firearms.

I certainly hope the Supreme Court reviews the case, but I don’t expect it to. It’s dodged the question thus far. I don’t see it opening the mason jar of worms it canned and put on the shelf in 1939.

The best you can hope for, Erwin, is that an en banc rehearing of the case gets the decision reversed. That’s what I think is going to happen, Janice Rogers Brown or no Janice Rogers Brown. There are too few intellectually honest and honorable judges in our system.

UPDATE: Fellow gun-blogger and gun-rights absolutist Publicola also fisks Erwin, and has links and excerpts from other very interesting caselaw. I strongly recommend you read his Fisking Erwin.

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