I’ve had this essay rolling around the dark corners of my subconscious for a few days, ever since I found and read the U.S. v. Stewart decision. I credit Mike Spenis of Feces Flinging Monkey for the inspiration that let it out, because in our short discussion of the recent 5th Circuit U.S. v. Gould decision, (see my piece below) he said what I had been thinking, but could not put into words.
Personally, I think that the (unfortunate) bottom line is that the future of our freedom ultimately rests with the court’s willingness to periodically reexamine the law. Lawmakers, and law enforcers, will always push the limits, and they will always win occasional gains. If the court is unwilling to revisit these issues over time and correct the damage done, then it’s “game over” no matter what we do. This makes it a little easier for me to accept changes in the law where the cost is low and the benefits are significant. If I can’t count on an occasional review, then the game is already lost.
We certainly agree on that. As I told Mike, I think the difference between his position and mine is that he believes that such review occurs, and I understand it to be so rare as to be remarkable.
As I said, this essay was spawned by my reading of U.S. v. Stewart – a 9th Circuit decision that proclaimed that the Federal Government could not, through its powers granted under the Commerce Clause of the Constitution, prohibit a citizen from possessing a machinegun he manufactured himself, even if some of the parts were purchased across state lines. Surely, you say, this is a victory for the frothing-at-the-mouth wing of gun-rights advocates? Well, yeah, sort of. It’s a short decision, running only twenty pages, and it’s written by Justice Alex Kozinski, one of the most eloquent judges on a bench anywhere. It’s eminently readable. So what’s my problem with it? It reinforces my belief that judicial review – the “willingness to periodically re-examine the law” is a forlorn hope. It illustrates that bad precedent will live on, and be expanded, and that nothing short of a judicial miracle will be required to overturn what prior courts have decreed, so long as judges use their power to constitutionalize their personal preferences.
Throughout our relatively short history, that’s what the overwhelming majority of judges have done. As I illustrated in The Blog that Ate Poughkeepsie, for example, the Supreme Court ruled in 1856 – 7 to 2 – in Dred Scott v. Sanford that blacks in this country, free or slave, could not be “citizens,” because citizenship
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. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
Horribly wrong, obviously flawed. But we overturned that, you argue. Well, yes, we did. After we fought the bloodiest war in our history in no small part to determine just who were and weren’t citizens, we passed two Constitutional amendments. The 13th to define legally what a “citizen” was, and the 14th to ensure that the fundamental rights of those citizens – which Chief Justice Taney in Dred Scott so accurately listed – would be honored and respected by our legal system. (Go back. Read the list again.)
But immediately after that the Supreme Court in 1873 negated the expressed intent of the 14th Amendment with its decision in the Slaughterhouse Cases, and then the Court in its 1875 decision in U.S. v Cruikshank used the precedent of Slaughterhouse to eviscerate the 14th Amendment and drive the first nail into the coffin of the Second Amendment. Both decisions can be laid at the feet of judges using their power to constitutionalize their personal preferences, which in this case can be boiled down to “keep the darkies down.” (In the name of public safety, you realize.) (Yes, that was a sarcastic comment.)
From then to the present the judicial system has carried on this way, bending and distorting the clear intent of the Constitution and the Bill of Rights in order to meet the preferences of the black-robed arbiters tasked to apply the law within the intent of that very Constitution. There were, of course, some victories, and there were some judges who understood their jobs and did them to the best of their impartial ability. Louis Brandeis, for example, served on the Supreme Court from 1919 to 1923, and more than that, he often served as its conscience. But he often did so in his dissents, not in majority opinions. It was Brandeis in U.S. v. Olmstead who chastised the majority, saying:
Time and again this court, in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it.
—
The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.
—
Applying to the Fourth and Fifth Amendments the established rule of construction, the defendants’ objections to the evidence obtained by wire tapping must, in my opinion, be sustained. It is, of course, immaterial where the physical connection with the telephone wires leading into the defendants’ premises was made. And it is also immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
Olmstead was a case in which the government used wire taps to gather evidence against people it suspected were involved in the illegal sale of alcohol during Prohibition.
Again, for reasons of “public safety” the government found it reasonable to violate the protections laid down by the Constitution. Just a little. With good reason. With benign intent.
Almost from the day of ratification of the Constitution until today, the legal encroachment on our Constitutional rights, aided and abetted by the Judicial Branch generally under the guise of “public safety,” has continued almost unabated. Prohibition. Communism. Vietnam War protesters. The War on Drugs. And now the War on Terror. And it’s accelerated. To fight prostitution, cities confiscate the cars of men soliciting sex, sell them and keep the proceeds. Cities misuse eminent domain to take the property of their citizens so that businesses that will generate high tax revenues can build on it. Police are allowed to seize cash and property from people suspected to be involved in the drug trade, and keep it – even if the people they take it from are never charged, much less convicted. It’s up to the victim of the seizure to prove the property isn’t related to drug trafficking. The examples are nearly endless.
So why did the Stewart decision trigger this essay? Because Justice Kozinski wrote it. and Justice Kozinski also wrote a dissent to the decision denying a re-hearing of Silveira. In the Silveira dissent Justice Kozinski wrote:
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 9th Circuit in the original appeal claimed under precedent of U.S. v. Miller and the 9th Circuit’s own (out to lunch) interpretation of it in Hickman v. Block, that there is no individual right to arms. In the original Silveira decision, the Court made note of Justice Kozinski’s objection to the Hickman decision:
In Hickman, we held that an individual could not bring a Second Amendment challenge to a California law which requires that a permit be obtained in order to carry a concealed weapon, and, as noted in the text, unambiguously adopted the view that the Second Amendment establishes a collective right. Nevertheless, just six days after the issuance of that decision, Judge Alex Kozinski, acknowledgedly an extremely able and dedicated jurist, appeared to cling fast to the individual rights view, despite the existence of binding circuit precedent to the contrary….
So, what was it about Stewart? This is what Kozinski wrote in that decision:
Finally, Stewart argues that the Second Amendment guarantees him the right to possess machineguns, as well as the right to possess firearms generally despite his former felony conviction – as charged in count one of Stewart’s indictment. We have held that the Second Amendment “was not adopted in order to afford rights to individuals with respect to private gun ownership or possession.” Silveira v. Lockyer, 312 F.3d 1052, 1087 (9th Cir. 2002). Thus, there is no Second Amendment limitation on “legislation regulating or prohibiting the possession or use of firearms.” Id. Stewart’s Second Amendment argument must therefore fail.
Kozinski has protested long and well that an honest reading of Miller – used as precedent in Hickman and most recently in Silveira – cannot support the position that the Second Amendment doesn’t protect an individual right. Yet he used Silveira as precedent in Stewart to deny that the Second Amendment protects an individual right.
Mike Spenis said “the future of our freedom ultimately rests with the court’s willingness to periodically reexamine the law,” but the evidence is plain that the courts will not do that. They will use obviously flawed precedent so long as it “comports especially well with our notions of good social policy.” And even if it doesn’t, the courts will often bow, as Kozinski does here, to precedent they abhor. 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.” And those decisions stand, without review, periodic or otherwise, to serve as the next step down the road to Hell.
As Hudson said in the movie Aliens, “Game over, man. Game over.”
UPDATE: Publicola reports that the NRA’s CATO Institute’s challenge to D.C.’s firearm ban has been defeated, and links to the decision. Here’s my condensation of the 15 pages: “Sixty-five years of precedent say that there is no individual right to arms. The 5th Circuit was wrong. Suit dismissed. Go away, boy, you bother me.” Once again, the NRA’s “incrementalist” approach is just as successful as the Silveira “Charge the Gates!” approach. The courts will not save us.
UPDATE 4/6: The 9th Circuit has spoken again. An appeal to the 9th for an en banc rehearing of Nordyke v. King, another 2nd Amendment case, has been denied under the Hickman precedent. Justice Kozinski concurred with the denial citing “prudential considerations” against rehearing a 2nd Amendment case “so soon” after Silveira, but there were five other Justices who dissented. Justice Gould wrote a detailed 20+ page dissent, joined by O’Scannlain, Kleinfeld, Tallman, and Bea, in which he strongly supports the 5th Circuit’s interpretation of the 2nd Amendment as protecting an individual right in Emerson. The dissent is here, though the server appears to not be working at the moment.
My only problem with the dissent is Justice Gould’s repeated referral to the 2nd Amendment as granting an individual right to arms, rather than protecting a pre-existing right. The 1st Amendment doesn’t grant the right of free speech.
UPDATE 3:40PM: Publicola comments on this piece and the Nordyke dissents.
UPDATE 4/7 7:12AM: I edited the piece a tiny bit. Dred Scott v. Sanford was not a unanimous decision, it was 7-2. Interestingly, nobody called me on it, which means that nobody read or even skimmed the decision. I just checked it this morning because of a niggling doubt and found that there were two, Justices McLean and Curtis, who dissented.