American Constitutional Law Specialist, Eh?

Dr. James J. Magee is the Judge Hugh M. Morris Professor of Political Science and International Relations for the University of Delaware:

James Magee, PhD (University of Virginia, 1975) joined the Department in 1976 and specializes in American constitutional law and the United States Supreme Court. Professor Magee has received three times the University’s Excellence in Teaching Award and twice the University’s Excellence in Advising and Mentoring Award. He teaches courses in US constitutional law, judicial process, American politics and directs a UD study abroad program in Italy.

He teaches:

Introduction to Political Science (Honors and Regular Sections)
American Political System (Honors and Regular Sections)
Political Culture: Italy (Study Abroad)
Introduction to Law
Constitutional Law of the United States (Honors and Regular Sections)
Civil Liberties (Criminal Procedure)
Civil Liberties (Individual Rights and Freedom) (Honors and Regular Sections)
The Judicial Process (Honors and Regular Sections)

among other courses, according to his CV. He’s written several books and numerous book reviews, but interestingly, none seem to touch on the Second Amendment.

So I found it interesting to read up on the good professor after reading his January 27 op-ed No constitutional right to military weapons, published at DelawareOnline. I left a comment to the piece, but I was pressed for time. This one, I think, deserves a full-fledged Fisking, given the credentials of its author.

So let us Fisk:

The News Journal reported that National Rifle Association President David Keene had “lashed out” last Sunday in Dover to a packed audience of some 1,500 people against proposed state and federal bans on military-style weapons and high-capacity magazines.

The NRA has long insisted that the Second Amendment guarantees private individuals a right to own and bear arms. The very conservative former Chief Justice Warren Burger after retiring from the Supreme Court publicly derided this interpretation as a “fraud.” However, in District of Columbia v. Heller (2008), the Supreme Court adopted a portion of the NRA’s account in declaring a municipal ordinance prohibiting individual ownership and use of handguns for self-defense a violation of the Second Amendment.

This was the first thing I took exception to in my comment – the “appeal to authority,” said authority being Chief Justice Warren Burger. The good Professor does note that Justice Burger’s opinion was rendered after he retired, not as part of a Supreme Court decision or (heaven forbid) a dissent.  No, the Burger court never heard a Second Amendment case.

What the good Professor does not tell you is what else Chief Justice Burger had to say on the topic. After retiring, the Justice apparently traveled the speaking circuit and also did a little op-ed writing of his own. In January of 1990 he wrote a piece for the Sunday Parade magazine newspaper insert entitled The Right to Bear Arms. In it, he makes much the same argument as Professor Magee, but states:

Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing — or to own automobiles.

Excuse me? The Second Amendment – which the Chief Justice quotes – reads:

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.

And then he follows it with this:

We see that the need for a state militia was the predicate of the “right” guaranteed; in short, it was declared “necessary” in order to have a state military force to protect the security of the state. That Second Amendment clause must be read as though the word “because” was the opening word of the guarantee. Today, of course, the “state militia” serves a very different purpose. A huge national defense establishment has taken over the role of the militia of 200 years ago.

Some have exploited these ancient concerns, blurring sporting guns — rifles, shotguns and even machine pistols — with all firearms, including what are now called “Saturday night specials.” There is, of course, a great difference between sporting guns and handguns.

(My emphasis.)

Burger’s focus wasn’t on “military weapons,” it was on handguns – particularly “Saturday Night Specials.” Warren Burger didn’t (apparently) have a problem with private possession of machine pistols, as they were in his eyes “sporting guns”!

But the Second Amendment mentions “sport” or “hunting” nowhere. It speaks of the need for a milita, and prohibits the infringement of the pre-existing right to keep and bear arms.

As an authority to appeal to, I think Chief Justice Burger is lacking, but he’s the best the Other Side™ has.

Continuing, the Professor now attempts to, as his type always does, read overweening import into the Second Amendment’s opening clause:

That amendment’s prologue once seemed to restrict possession of arms to state-organized militias summoned to defend individual states: “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.”

With professional police forces and a national military, these militias became obsolete along with the amendment. (My emphasis.) However, in the Heller case, Justice Antonin Scalia (an avowed textualist), wrote for a 5-4 majority and oddly dismissed the prologue that provided a limited context for understanding the meaning of the amendment and that supported Burger’s rejection of the NRA’s position. Scalia reconstructed a moribund amendment newly to read: “The right of the people to keep and bear arms shall not be infringed,” and this translated into a substantive, individual right to self defense. Two years later, the same majority in a case from Chicago ruled that the right announced in Heller (extracted from constitutional language that once had seemed only to promote “the security of a free state”) paradoxically binds the states as well.

Detached from the prologue or any other context, the right “to keep and bear arms” could literally include any arms.

Now Professor Magee is supposed to be an expert on Constitutional Law, is he not? Apparently, however he has no grasp of the Rule of Law and the power of precedent. Let’s examine his assertion that Scalia’s decision “oddly dismissed the prologue that provided a limited context for understanding the meaning of the amendment.” In the antebellum Scott v. Sanford or “Dredd Scott” decision, the 7-2 majority of the Court decided that the plaintiff, a slave, and by extension all black residents of the United States was not and could not be a citizen of the United States because:

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised 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.

(My emphasis.) The Court understood precisely what rights they were denying to blacks by denying them citizenship, and you’ll note that – in a Supreme Court decision no less – the right to “keep and carry arms” is in no way associated with enrollment in a militia, “well-regulated” or otherwise.

But this was a horrible, unjust decision, you exclaim! Indeed it was. And after a long and bloody war, in large part fought to determine just who were and weren’t citizens, the Constitution (you remember, that document that Professor Magee is supposed to be an expert on?) was amended. The Thirteenth Amendment said yes, blacks were citizens, and the Fourteenth Amendment said “they get all the same rights as everyone else.” In fact, the language was interestingly evocative of the wording in Dred Scott:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Again, my emphasis.

What was one of those “privileges and immunities” defined by the Dred Scott court? The right to “keep and carry arms wherever they went.”

But not so fast! After the war there was much resistance to allowing blacks to enjoy the privileges and immunities that tens of thousands had been killed wounded to win them. In 1875, after an incident in which several hundred blacks were disarmed and then subsequently slaughtered, charges were brought against some of the killers in U.S. v. Cruikshank. Among the charges was one having to do with the disarmament of the victims, specifically:

The second (count) avers an intent to hinder and prevent the exercise by the same persons of the ‘right to keep and bear arms for a lawful purpose.’

What did the Supreme Court determine? (This one is a favorite among the gun-control crowd – as long as it is suitably edited):

The second and tenth counts are equally defective. The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.

“See! SEE?!?” they shout. But they always leave out the next part:

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 The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constituton of the United States.

(My emphasis.)  So, between the Dred Scott decision of 1857, the ratification of the 14th Amendment in 1868, and the Cruikshank decision in 1875 the pre-existing right to “keep and carry arms wherever” we go, the right of “bearing arms for a lawful purpose” went from the inherent right of every citizen to something which Congress couldn’t infringe on, but your state and local governments could.

Which is why we have developed a myriad patchwork of gun laws from state to state, county to county, and city to city.  That’s why it may be perfectly legal for you to do something in one location, but by driving to the next county or city you could be guilty of a felony for doing the exact same thing.  Hardly an ability to keep and carry arms wherever you go, no?

And that is why Heller and McDonald were so important – because Heller said the right was individual, like all the rights protected under the First Amendment, and McDonald said Cruikshank was WRONG, and that the equal protection clause of the Fourteenth Amendment applies to that right, and NO jurisdiction can infringe on it, not just Congress.

However, in the landmark 1939 case of U.S. v. Miller the Supreme Court did not ignore the “the prologue that provided a limited context for understanding the meaning of the amendment”. Miller, a known moonshiner, was arrested in possession of a sawed-off shotgun that the government could easily prove he’d taken across state lines. In Federal district court the judge declared that the National Firearms Act (NFA) of 1934, which made it illegal to move such a weapon across state lines without possession of a $200 tax stamp (on a $10 shotgun) and that also required registration of the weapon and its owner, was unconstitutional as it violated the Second Amendment. That decision was appealed and went immediately before the Supreme Court without any delaying moves through the Appeals court. In the short interim between the District Court decision and the Supreme Court hearing, Miller vanished and no one appeared before the Court to speak on his behalf.

Mr. Gordon Dean for the Solicitor General’s office argued (among other things) that Miller had no standing in relation to the Second Amendment because he obviously wasn’t a member of a “well-regulated militia,” but the Court did not take that argument into account.  It studied and discussed just who were the militia, but rejected the argument that Miller had no standing. Instead, the Court decided the case on the merits of the weapon:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 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.

(My emphasis.)  Remember, no one was there to argue Miller’s side. Had there been, abundant evidence was available that “short-barreled shotguns” have been of military usefulness since their invention, but this raises another question that I also mentioned in my comments.

The 1934 NFA regulates automatic weapons – like Justice Burger’s “machine pistols” – exactly the same as short-barreled shotguns. The same requirement for registration and the same $200 tax stamp.

What if Miller had possessed, say, a Browning Automatic Rifle? That weapon was part of the Table of Equipment for any infantry platoon in the U.S. Army at the time. (And a favorite of Clyde Barrow.)  Could the Court have claimed ignorance of that? Prior to 1934 you could order one directly from the manufacturer and have it shipped to your door. But could the Court say that such a weapon was not “part of the ordinary military equipment”? That was the basis on which they reversed and remanded the Miller decision to the lower court for finding, a finding which never happened.

So Justice Scalia’s odd dismissal of “the prologue that provided a limited context for understanding the meaning of the amendment”? Two prior Supreme Court cases, Scott and Cruikshank dismissed it before him, and Miller was based on whether the weapon was of military usefulness, not whether Miller was a member of a militia or whether the weapon was suitable for “sporting purposes.”  I’d say he followed precedent properly.

And Professor Magee’s a Constitutional expert?


Larry Ward, promoter of “Gun Appreciation Day,” asserted on national television last week that the amendment was meant to arm “the people” to oppose a “tyrannical” government. This would constitutionally entitle “the people” to whatever arms they need to wage war against the United States should it be declared “tyrannical,” presumably by Larry Ward or other attentive citizens.

Simply to state his position is enough to refute it.

Not so fast there, Guido. I could write another entire essay on this topic, but that’s for another time. That statement is a lazy way to avoid an uncomfortable subject, and if the Professor would like, I’m up for a discussion on it, too, but getting back to this piece:

Responding to President Obama’s inaugural remark that absolutes are not necessarily principles, the NRA’s CEO Wayne LaPierre in Reno on Jan. 22 quoted Supreme Court Justice Hugo L. Black who in the first James Madison lecture in 1960 at New York University law school had said: “There are ‘absolutes’ in our Bill of Rights, and they were put there on purpose by men who knew what words meant, and meant their prohibitions to be ‘absolutes.'” LaPierre ignored Black’s definition in the same lecture of the Second Amendment “to include only arms necessary to a well-regulated militia.”

Black, in fact, had joined the unanimous opinion in 1939 that the Court in Heller effectively overruled.

Really? Go back and read Miller again, Professor. I think you missed the big flashing sign.

Whatever one thinks of the unprecedented ruling in Heller, opponents of regulations or bans (of) military-style automatic weapons and high-capacity magazines should read what Justice Scalia in Heller actually said: “Of course the right was not unlimited … [W]e do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation.” “We also recognize another important limitation on the right to keep and carry arms. [T]he sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'”

The AR-15 rifle is currently the most popular long gun in America, manufactured by literally dozens of companies and owned by literally millions of people. It is also carried by the majority of police departments around the country. Does that not qualify as “common use”? As the semi-automatic version of the select-fire M16 and M4 military-issue rifle and carbine, does it not meet the Miller “ordinary equipment” test?  As the joke goes, “Is gun.  Is not safe.”  And it’s hardly unusual.

Neither Gov. Markell nor President Obama is proposing anything forbidden by the only decision the Court has ever made that comes anywhere close to the NRA’s account of the Second Amendment. There is no constitutional right to possess the type of “dangerous and unusual” firepower that killed kindergartners in Newtown. Accustomed to weapons “in common use at the time,” the founding generation, even the most gifted and farsighted among them, could hardly have imagined such weapons.

The founding generation could “hardly have imagined” radio, telephones, television, communication satellites, the internet, cell phones, fax and copying machines, scanners or any of the other myriad advancements in information technology, but those are all protected under the First Amendment’s freedom of expression.

The current Chief Judge of the Ninth Circuit Court of Appeals wrote a rather famous dissent in the 2003 Silveira v. Lockyer case that rejected an en banc rehearing. In it he said:

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.

Silveira was decided using the Ninth Circuit’s 1996 Hickman v. Block decision that erroneously interpreted the Supreme Court’s Miller decision as declaring the right to arms a collective and not individual right.

And Professor Magee’s op-ed is but another example of someone wishing to constitutionalize his own personal preference.


Despite the overflow crowd in Dover to hear David Keene, most Americans are willing to prohibit certain military-style weapons and ammunition. More people are killed in the United States by gun violence on average each year than all the Americans who have died in both long wars in Iraq and Afghanistan. Banning high-powered automatic weapons and high-capacity magazines might not end daily killings largely ignored by the media or massacres making national headlines only to disappear with time.

Long guns are used in a tiny fraction of all firearm-involved crimes, and “military-style weapons” are only a small percentage of that tiny fraction.  Given the FACT that the overwhelming majority of people killed and injured in the United States by “gun violence” are killed and injured with HANDGUNS – a fact that hasn’t changed since retired Chief Justice Warren Burger went on the lecture circuit to try to get them banned, then a ban on “certain military-style weapons and ammunition,” “high-powered automatic weapons and high-capacity magazines” is merely theater, albeit theater with an ultimate goal.

No, an “assault weapon” ban is precisely what Charles Krauthammer said it was for in 1996:

In an election year you expect Washington to be full of phony arguments. But even a cynic must marvel at the all-round phoniness of the debate over repeal of the assault weapons ban. Both sides are blowing smoke.

The claim of the advocates that banning these 19 types of “assault weapons” will reduce the crime rate is laughable. There are dozens of other weapons, the functional equivalent of these “assault weapons,” that were left off the list and are perfect substitutes for anyone bent on mayhem.

Ultimately, a civilized society must disarm its citizenry if it is to have a modicum of domestic tranquility of the kind enjoyed in sister democracies like Canada and Britain.

Passing a law like the assault weapons ban is a purely symbolic move in that direction.

(My emphasis.)  Concluding Professor Magee’s piece:

The NRA is quite right in pushing mental illness as a major contributor to the epidemic of gun violence gripping this country. However, it undermines its own credibility and disserves the public to exaggerate what the Supreme Court or any of its justices have said just to ignite support for make-believe constitutional rights.

I think, Professor Magee, that you have undermined your own credibility and performed a disservice to the public in writing your op-ed. You have attempted to mislead the public on the law through deliberate mendacity.

Shame on you.

And what is it you teach your students?

UPDATE, 2/1/13:

It’s been almost three days since this went up. There have been some fun comments to the DelawareOnline piece, but Professor Magee has not replied to my emails. Probably spam-filtered due to the Gmail origin. As an interesting aside, I received this message from a Facebook member:

Kevin, Professor Magee from the University of Delaware was the head of the Poli Sci department and, as a Poli Sci major with a concentration in public law, the man who taught all but one of the Constitutional Law classes I took in college.

Not once did we ever discuss the 2nd Amendment, even in a class dedicated to Constitutional Law and Individual Liberties.

Well, until 1999 even Laurence Tribe gave the Second Amendment short-shrift in his textbook American Constitutional Law. But I can’t say I’m surprised.

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