A quick heads-up for my more prudish readers: A few paragraphs down the post, I drop the “F” bomb. (There are times when semi-crudities just aren’t enough!)
The (Not So) Supremes
As “proof” of their 2nd Amendment misinterpretation, the NRA and assorted gun butt-heads often cite District of Columbia v. Heller.
Back in the 6th grade I remember learning that American judges were Solomon personified: wise and fair, but above all – IMPARTIAL!!
And then there’s the Supreme Court.
SCOTUS, over the years has had its ups and downs but the present court is the pits! (Bush v. Gore (2000); McConnell v. FEC (2003); Hamdi v. Rumsfeld (2004); Citizen’s United v. FEC (2010); etc, etc,) It’s been on a mostly downhill slide since the Warren years. Not coincidentally, it’s gotten a lot more partisan during that same time period.
Ideology seems to rule the thought(?) processes of at least three
justices partisan hacks: (Scalia, Thomas & Alito). The CJ is a part-time member of that group, but other times, he seems to be far more concerned about his “legacy” than his ideology. That turned out to be very important to “ObamaCare”, or as it was originally known: “RomneyCare”. (Of course, that was before Willie became a self-described “severe conservative”.)
As the constitution would have it, the court is the final (for a while) say in what’s “constitutional” and what ain’t. And in 2008, for the first time in 70 years, the court got to rule on gun ownership rights. (And, they fucking blew it!)
This is a long post, so I won’t go into the background of the suit. It’s really not pertinent. If you’d like, you can check out the Wikipedia article on “Heller”.
What’s pertinent, are the convolutions the “right side” of the court had to create in order to justify their conclusions.
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, (To which, I’m forced to ask “Then why the hell does the amendment list that as a prerequisite?“) and to use that arm for traditionally lawful purposes, such as self-defense within the home. (Just exactly where does it say that? Or is that just an example of justification trumping evidence?)
- (a) The Amendment’s prefatory clause announces a purpose, (Excuse me, but when there’s only one purpose listed, then it’s THE purpose, not A purpose. That’s both basic English and Legalese even back in the 1700’s) but does not limit or expand the scope of the second part, the operative clause. (If there is only one purpose listed, then it does limit the scope of the second part to that purpose. As to the expanding part, I agree. There is nothing in the wording that expands it beyond militia usage.) The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. (I’ve already ripped apart their text claims back in pt.1. The amendment was for the protection of the government, not the people! And, interestingly enough, no history was sited later than the 1800’s. By the early 1900’s, most citizen’s militias had more or less gone the way of the dodo (unless you count the KKK). And no, the National Guard doesn’t qualify. They are under the ultimate authority of the President, as Governor Faubus found out back in ’57. Besides, the NG provides its own weapons.)
- (b) The prefatory clause comports with the Court’s interpretation of the operative clause. (No! It doesn’t! But at least they admit that their view is subjective rather than objective.) The “militia” comprised all males physically capable of acting in concert for the common defense. (A militia is composed of people who are actually in a militia, not “Bubba Tudum” sittin’ on his porch with a Bushmaster looking for black helicopters.) The Anti-federalists (who were staunchly opposed to the constitution in the first place)
feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. (Even back then the nutty right was trying to gain power by spreading fear and uncertainty. Some things don’t change much. Btw, a good portion of those Anti-federalists were “American Loyalists” during the Revolutionary War. They were “loyal” to old King George and the British Crown, not the revolution.) The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, (Actually, “the ancient right” kinda, sorta, but not really, goes back to the Assize of Arms of 1181. However, the Assize of Arms did not describe an ancient legal or political individual right to arms, rather the Assize of Arms represented an imposed responsibility on subjects of knight rank or higher. “There was no ancient political or legal precedent for the right to arms. The Ancient Constitution did not include it; (The Ancient Constitution isn’t really ancient. It originated in the eighteenth century.) it was neither in Magna Charta 1215 nor in the Petition of Right 1628. No early English government would have considered giving the individual such a right. Through the old militia laws —Henry II’s Assize of Arms (1181) and Edward I’s Statute of Winchester (1285)— early governments had imposed a responsibility on subjects, according to their income, to be prepared” Lois G.Schwoerer:. Tö Hold And Bear Arms: The English Perspective”. Chicago-Kent Law Review (2000) so that the ideal of a citizens’ militia would be preserved. (As I pointed out earlier, there were a lot more reasons for the Amendment than just that.)
- (c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. (Ahh, but how did the courts rule on those? Stay tuned, sports fans.)
- (d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. (I’ll agree with them on this one. It is of TOTALLY dubious worth. This is just another example of the hacks scrambling for any scrap to justify their conclusions. Proposals are just that – proposals. Someone could have proposed that to qualify for gun ownership, you had to do a double back flip while simultaneously sucking three toes (one on one foot and two on the other) and whistling “Yankee Doodle”. The only thing that counts is the final package.)
- (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. (That’s a humongous pile of taurus cacas! (Latin for the north end extrusions of a south-facing male of the bovine persuasion.) In Tennessee, the court ruled (Aymette v. State (1840)) that the right to “bear arms” meant only the right to carry weapons in a public military context, not to carry concealed weapons for personal protection. In Arkansas, the court ruled (State v. Buzzard (1842)) that the sole purpose of the Second Amendment was to secure a well-regulated militia: “the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted.” In North Carolina, the court ruled (Barron v. Baltimore (1844)) “[t]hat the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.” A quick tip of the sombrero to the folks at davekopel.org. They were the source of these rulings as well as a hell of a lot more info on 19th century gun control legislation. Btw, Dave Kopel, as of you may or may not know is not exactly a bleeding heart lib. He’s the Research Director of the Independence Institute and an Associate Policy Analyst at the Cato Institute.)
- (f) None of the Court’s precedents forecloses the Court’s interpretation. (Just in case you didn’t read that last sentence too closely, I’d like to point out that they didn’t say that the precedents agreed with their findings, just that they didn’t say anything contrary to their findings.) Neither United States v. Cruikshank, 92 U. S. 542 , (On one hand, I can not believe they used this as a precedent. But unfortunately, on the other hand, maybe I can. This one deserves a bit of background.
On Easter Sunday, April 13, 1873, an armed WHITE militia attacked BLACK Republican freedmen gathered at the Colfax, Louisiana, courthouse in what became known as the Colfax massacre. (If you were white, you just called it the Colfax riot.) The estimates of the number of blacks killed range from 150 to 280. Most of those were killed after they surrendered. Several militia members were charged under the Enforcement Act of 1870. This law made it a felony for two or more people conspired to deprive anyone of his constitutional rights. The militia members were convicted and the case worked its way up to the Supreme Court. The justices reversed the decision, based on their opinion that the Bill of Rights (including the 2nd Amendment) didn’t apply to states, only to the federal government. I kid you not! Other than that, there was very little here that was pertinent to Heller. Btw, this was the same court that set back the civil rights movement decades with decisions like the Slaughterhouse Cases and Stauder v. West Virginia while also setting back the women’s movement with the likes of Minor v. Happersett & Bradwell v. Illinois. I won’t say that the court was racist and/or sexist. I’ll just say that they weren’t too fond of the 14th Amendment and all that “equal-protection” jazz. And, as Mormons found out with Reynolds v. United States, they weren’t too crazy about the 1st Amendment either. Since the 1875 ruling, major portions of Cruikshank have been overturned by later (and better) versions of the Supremes.) Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. (The court stated: “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 and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.” Both Cruikshank and Presser have been consistently cited by the courts to deny individual gun rights claims and provide justification to state and local governments to pass laws that regulate guns. Seems to me, that’s the exact opposite of what the hacks are claiming.) United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54. (This one was about a legal challenge to the National Firearms Act of 1934 which required registration of certain weapons, including shotguns, and a tax payment. Miller claimed this violated his 2nd Amendment rights. A District Court had upheld the challenge and the government appealed it to the Supreme Court.
The court reversed and remanded the case, writing: “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“. For 60 years courts, with few exceptions, cited Miller as a reason to reject challenges to federal firearm regulations.
A quick note before we get into the dissents as written by Judges Breyer & Stevens and joined by Ginsburg & Souter: I purposely did not read their dissents before I wrote my “snark review” of the above. I wanted to come to my own conclusions on the matter. I formed my conclusions based on research, with input across the political spectrum, along with my experience. Turns out that the dissenting judges came up with a number of the same arguments. This gives me promise of a future reversal. I’ll explain why at the end of this post.
The minority dissent to Heller is a bit long, so I’m just going to hit the highlights:
“The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.”
“The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves.”
“As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces…….The Amendment “must be interpreted and applied with that end in view. United States v. Miller, (1939)”
“The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. Robertson v. Baldwin, (1897)”
I highly recommend you read the entire text of the dissent. It goes into a tremendous amount of detail and cites numerous precedents.
Ok, now for the good news. It is entirely possible that Heller will have a short shelf life. Bad Supreme Court decisions do have a habit of being reversed if part or in full. The original decision was 5 Republicans – 4 Democrats.
Due to various reasons including demographics and the Repugnuts’ incredible ability to shoot themselves in the crotch. We’ve probably seen the last Repuglican president for the foreseeable future. (Check my “Repugnut Thoughts” series for more on that.) No new Repuglican president, no new (Not-so) Supreme nominations.
It may take a while, but as the justices retire or die, the court will eventually shift back in the middle. The loss of just one hack would probably be sufficient to allow a Heller reversal stemming from a new case. I look forward to the day.
Well, that wraps up another episode. See you next time, when I’ll take a look at the consequences of unfettered gun ownership in a little post I call “Collateral Damage“.