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Well, Eric, I'm suppose I'm a bit relieved that you were not proposing a catch-all limiting principle for identifying rights when interpreting our own Constitution, but were instead merely "addressing the question of 'would we want to put gun rights in the Constitution if we were to start from scratch?'"
On that second question, I'm glad to say I agree with you -- not because rights should be limited to those that protect against entrenchment of political power, but simply because I don't see any particular normative case for a constitutional right to use firearms for self-defense.
Like you, I can't hope to top Dahlia's skewering of Justice Kennedy's obsession with protecting settlers from those rapacious wolves and bears (and, uh, grizzly bears, too). His reasoning, such as it was, appeared to be (i) that settlers did use firearms to protect themselves on the frontier and (ii) (implicitly) that it would have been unthinkable for the state to have deigned to prevent them from doing so. As you are right to note, Kennedy is correct that a disarm-the-settlers statute would have been absurd -- not because there was a constitutional limitation on such enactments, but instead because there was no particular reason for the state to restrict the use of firearms on the frontier: The problems that confront the D.C. City Council today are just a bit different from those that legislatures considered in pre-revolutionary times.
What Kennedy fails to cite -- and what all of the briefs in the case do not identify, as far as I can tell -- is any evidence that the Constitution was ratified in order to guarantee that such settlers would continue to be left free to hunt wolves in the event some legislature somewhere decided to impose firearms limitations. In other words, the fact that something was (for good reason) largely unregulated at the time of the Founding does not mean that anyone thought it could not be regulated, if and when a legislature found a good reason for doing so. Justice Scalia actually made this point quite nicely a few years back in response to an argument of Justice Thomas that anonymous speech must be constitutionally protected because there was so much of it at the Founding:
Anonymous electioneering
was not prohibited by law in 1791 or in 1868. In fact, it was widely practiced
at the earlier date, an understandable legacy of the revolutionary era
in which political dissent could produce governmental reprisal. . . .But to prove that anonymous electioneering was used frequently is not
to establish that it is a constitutional right. Quite obviously, not every
restriction upon expression that did not exist in 1791 or in 1868 is ipso
facto unconstitutional, or else modern election laws . . . would be prohibited, as would (to mention only a few
other categories) modern anti noise regulation . . . and modern parade permitting regulation. . . . Evidence that anonymous electioneering was regarded as a constitutional
right is sparse, and as far as I am aware evidence that it was generally
regarded as such is nonexistent.
So what was it, anyway, that caused Kennedy to be so fixated on settlers and wolves? I think it might have been an amicus brief by Virginia1774.org, which quoted this excerpt from a 1632 Virginia law: “…But it is thought convenient that any man be permitted to kill deare or other
wild beasts or fowle in the common woods, forests, or rivers in regard that
thereby the inhabitants may be trained in the use of theire armes the Indians
kept from our plantations, and the wolves and other vermine destroyed…”
Wolves, Indians, even "other wild beasts" (albeit no specific reference to grizzlies): It's all there. Yet when I saw this quote, I thought it curious that the amicus begins it with an ellipsis and the word "but." Did the Virginia legislature really mean to be foreclosing any firearms regulation with respect to settlers and wild animals? Well, not quite. A quick Google search turned up this, Act 49 of the Virginia laws of 1632, which reads in full:
"NOE man shall kill any wild swyne out of the forrest or woods,
except in his [] or devident, without leave or lycense
from the Governor. But it is thought convenient that any man be permitted to kill deare
or other wild beasts or fowle in the common woods, forrests, or rivers in regard that thereby the
inhabitants may be trained in the use of theire armes, the Indians kept from our plantations, and
the wolves and other vermine destroyed. And for encouragement to destroy the wolves, it is
thought that whosoever shall kill a wolfe, and bringe in his head to the commander, it shall
be lawfull for such person or persons for every wolfe soe kild, to kill also one wild hogg and
take the same for his owne use."
In other words, the statutory phrase quoted out of context by the amicus is an exception -- a wolf exception! -- or, more precisely, a contrasting authorization, to a general prohibition on killing "wild swyne" without a license from the Governor. Moreover, from all that appears, the Virginia license to kill wolves is not based on any notion of constitutional or fundamental right, but instead on the simple finding that such killing was "thought convenient."
Thus, to the extent this 1632 Virginia law is to be an authoritative guide to the meaning of the Second Amendment (yes, I kid), I think the most it would demonstrate is that if a resident of D.C. brings the head of a wolf to Mayor Fenty, he has a constitutional right to a free ham.
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Marty, I wasn't making an argument about constitutional interpretation but about constitutional theory. In other words, not "what is the right outcome of the Heller case?", but "would we want to put gun rights in the Constitution if we were to start from scratch?" The second question is not altogether irrelevant to the first; at least, some people seem to think that the answer to this question might help answer the first question. That's why these arguments about bears and saber tooth tigers are being bruited about. But I'm not at all interested in the first question.
From the perspective of the second question, let's take this argument made by Kennedy: "the right of people living in the wilderness to protect themselves" -- the right of "the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that."
The constitutional theory question is not whether it would be right or wrong to deprive the remote settler of the means to defend himself, but whether there is any reason to think that the government would take away his guns without a good reason-or as you put it, to think that the type of government overreaching that we properly worry about would extend to regulation of gun-toting settlers who live in the wilderness. I certainly can't think of any. Remote settlers are not the sort of people who are usually discriminated against; nor are they the sort of people who threaten a government's hold on power-quite the contrary. Do we think that Congress or the Alaskan state legislature has any interest in sending agents to the wilds of Alaska in order to confiscate the guns of remote settlers? Is the idea that the government has been captured by the grizzly bear lobby, or that settlers are treated as second-class citizens? Maybe the settlers have a longstanding complaint that the U.S. government discriminated against them by failing to slaughter the Indians fast enough? Does it count that the U.S. government and the thinly populated states have been subsidizing settlers for centuries-by offering free land, protection from out-of-state creditors, and tax benefits? It's hard to imagine a more cosseted group than our hardy band of settlers.
I can't top Dahlia's skill at ridiculing bad arguments, and I don't think I need to persuade you, either. If this is actually what the founders believed, so much the worse for them.
As for your last point, I was making a point about the "natural right" argument discussed in an earlier post by Doug Kmiec, not to constitutional rights (which you run together, but they are different, of course). "Natural right" is just a fancy way of saying that there is a moral reason to (in this case) let people keep their guns, namely, so they can protect themselves. As I said, there is also a moral reason to take away guns: to protect the rest of us. So natural rights thinking doesn't provide the basis of a constitutional right to own guns. It is indeterminate; another reason to leave the issue to politics.
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Eric, if I understand your post, you argue that constitutional rights should only be recognized where they would help to prevent the political party in power from "entrench[ing] itself and undermin[ing] political competition" -- in other words, to help correct a political process failure.
Well, that's one reason why the Constitution (the Bill of Rights, in particular) establishes certain rights, but it's certainly not the only, or the predominant, reason. (Think of the various ends served by the Bill of Attainder Clause, the Free Speech Clause, the Free Exercise Clause, the Fourth Amendment, the right to privacy, the Fifth Amendment, the Eighth Amendment, etc.)
So, let's say that Justice Kennedy were correct, and the Second Amendment was, indeed, ratified in order to protect "the right of people living in the wilderness [which apparently includes much of D.C.] to protect themselves" -- the right of "the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that." (Lions and tigers and bears, oh my.)
Now, I don't think this is a very plausible reading of the Second Amendment; but let's assume that it were (as the Court appears prepared to hold -- when Kennedy settles on a particular story about constitutional value or settlement, he's usually difficult to move off it, cf. Alden v. Maine). Why wouldn't, or shouldn't, that right be cognizable? Is your argument simply that constitution writers should not create rights except to protect against political entrenchment? If so, I suppose that's one theory of what (minimalist) constitutions ought to be about -- but what does it have to do with interpreting ours, which is designed to protect against other forms of government overreaching, too?
(In your post, you suggest that a right of self-defense would "come into conflict with my
natural right to protect myself by disarming criminals," a conflict
that "can only sensibly be resolved through political compromise." But in order for there to be such a conflict between constitutional or natural rights here, the Court would have to recognize, not a right to "protect myself by disarming criminals," but instead a right to have the state protect me by disarming criminals. And on this (and any other imaginable) Court, that proposition has no support at all. Cf. DeShaney.)
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I'm Rich Ford of Stanford Law School. As Dahlia mentioned, my wife just gave birth to our second child (thanks Dahlia for the well wishes) so I've not been on top of blogging (or anything else)--sorry this is a bit on the late side. I write about civil rights, race relations and local government law and I've just recently published a book entitled The Race Card which was excerpted in Slate back in January. I'm looking forward to the conversation.
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The effect of declaring some activity as being protected by a constitutional right is to remove it from democratic politics. If the activity is expressing dissatisfaction with the government, then the people, acting through their government, cannot suppress such expression. If the activity is owning a gun, then the people cannot suppress gun ownership. When the people, acting through their government, try to regulate the activity in question, the court says "no way!"
It is easy to understand why certain political freedoms should be put beyond the arena of politics and be protected by courts. Without such rules, the party in power can entrench itself and undermine political competition. It is hard to understand the analogous arguments for constitutionalizing gun rights.
Some argue that if people do not own guns, then democracy is put in danger, since people can no longer take up arms if the government tries to establish a tyranny or refuses to protect them. Maybe this was a legitimate concern at the end of the eighteenth century (or even the nineteenth century, as Akhil Amar suggests), but as a theory for restricting democratic politics today it is farfetched. Gun owners are politically powerful; gun control laws are few and limited; gun rights are endorsed by both parties; with hundreds of millions of handguns in circulation, no serious gun control law has a chance of success; and, even if everyone were disarmed, the government would not impose a dictatorship. It already has more than ample firepower if that is what it really wanted to do.
Others argue that governments fail to protect people from crime, so they shouldn't be permitted to deprive people of the means to protect themselves, as this would violate a right to self-defense supposedly found in natural law. But your natural right to protect yourself with a gun comes into conflict with my natural right to protect myself by disarming criminals; this conflict can only sensibly be resolved through political compromise. The government's crime policies are political choices; if arguments against gun control are plausible, they have a fair chance in the political arena--and indeed have won the day virtually everywhere.
Finally, a number of people argue that gun rights are "customary" or "lived rights." If so, so much worse is the case for constitutionalizing them. If gun ownership is such a profound part of our culture, any government that tried to restrict it without very good reasons would pay a high price at the polls.
There are plenty of reasonable policy arguments on both sides of the issue, but these arguments should be directed to legislatures, not courts. There is no plausible argument grounded in reasonable constitutional theory for taking gun ownership out of the arena of democratic politics.
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[Adam White]
Dawn, you seemed to misunderstand my argument when you ascribed to me the position that "we can have constitutional entities not squarely in one of the three constitutional boxes." In the first part of my argument, I tried to make clear that I -- along with the quoted members of the Founding generation -- saw the Vice President to be a legislative official rather than an executive official.
I referred to the Vice President as a "sui generis" office not to suggest that his office is not part of one of the three constitutional branches of federal government but, rather, to distinguish my view from Adam's position that the Vice President is the "Head of the Legislative." I wouldn't say that he's the "Head" of that branch, but I would say that he is "sui generis" among legislative officials: he is nationally-elected, he votes only in certain circumstances, he is first in the line of succession.
By contrast, the Constitution affords him no specified role in the Executive Branch. He has no Executive Power (it's committed to the President); he's not the head of a department. Rather, his only constitutional relationship to the Executive Branch (other than his nominal title) is a prospective one: In certain circumstances, he succeeds to the presidency.
Thus, I think you're hasty to assert that it is "ludicrous" to suggest that the Vice President is Legislative, not Executive, official. John Adams and Oliver Ellsworth -- hardly ignorant of the Constitution -- come out much closer to Cheney's position than to yours.
No doubt, over time the Vice President has come to be known primarily for his role in succession, and for the roles afforded particular Vice Presidents by particular Presidents. Thus, it should come as no surprise that most people would reflexively assert that the Vice President is just an Executive Branch official. I'd recommend, however, that Founding-era discussions strongly suggest that today's conventional wisdom is a little more "conventional" than it is "wise."
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Stopping the Justices from voting before they know the answer –
A proposal for reversing the internal operations of the Supreme Court of the United States.
Douglas W. Kmiec
Heller has already been identified as a test of the fidelity to precedent and restraint of the Roberts Court. That following oral argument, it seems possible if not likely that the Justices will disregard or minimize the significance of the militia clause of the Second Amendment and decide that there is a right of self defense that nowhere exists in the present text of the Constitution presents a unique challenge to that reputation. Putting aside whether that is or is not a defensible constitutional outcome, it is institutionally important for the outcome to be arrived at by means other than mere assertion.
When the Justices assemble around the table in the Chief’s outer office to decide D.C. v. Heller, they will follow the usual practice of voting on the outcome first and only then researching to justify and explain the outcome. With due respect to the Court’s tradition, that methodology is backwards. It is also subversive of public confidence in the Court. In a difficult case, like Heller, where the historical materials, linguistic analysis, and constitutional considerations are plentiful and largely being examined conscientiously for the first time, it is all the more important for the Court to follow the scientific method of doing the research and writing first before deliberation and vote. Reversing the process would have the benefit of: avoiding the appearance of elevating politics over law by actually avoiding the temptation to substitute politics for law. By engaging in the difficult work of legal research and analysis of existing text, history, and precedent before any of the members of the Court are asked to reach an ultimate determination, the Court can increase the odds of writing coherently and with greater unity. Those witnessing this morning's oral argument know that task will be difficult. The analytical strands and possibilities from the meaning of the English Bill of Rights of 1689 to Mr. Madison's expectations of draftsmanship to the deficiency (or not) of precedent, to the nature of trigger locks require Herculean effort to assemble into a proper answer. If they were fully candid, I venture the Justices would concede that at this moment they possess at best a tentative conclusion. Why vote before a fulsome examination of the law by reference to a complete exposition of what one member of the Court would offer as the most honest and defensible constitutional judgment. No one would buy a common appliance not knowing if it could be constructed to perform its intended task. Why ask Justices to accept opinions that have yet to be fully formed?
Who would write the opinion if a preliminary vote were not taken first for purposes of assignment? Quite simply, the Justice next in line for a writing assignment who is fully up to date with his or her work. Once and for all, the residual politics of confirmation would be set aside and only Court administration would govern. Yes, this would deprive either the Chief Justice or the senior associate justice, most often, John Paul Stevens, of the right of assignment, but that deprivation would be in pursuit of a higher order good to which I venture both the Chief Justice and Justice Stevens would subscribe: the elevation of the rule of law and the strengthening of the respect for the Court as an institution.
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If I teach Constitution Law again, I think I'll be assigning the speech Barack Obama just gave. (I just posted on this over at XX Factor as well). Always seems to me that the toughest thing about teaching Con Law is that in some ways it's a course about race-- but students find it very hard to talk about race. Slavery, segregation, educational achievement, poverty, affirmative action.... these are all issues that make some students belligerent and other students miserably silent. Obama just took on some of the most painful issues... and gave everyone permission to be mixed up and confused. Can't think of a better way to help jump start an honest conversation about the many ways in which issues of race have inflected American constitutional jurisprudence.
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by Dawn Johnsen
For this my inaugural substantive blog I want to pose a question much on my mind: how do we restore our nation's honor, as well as our own?
I am a bit tempted instead to join the fray over VP Cheney's filing of the D.C. guns brief, flatly at odds with the Bush administration's brief, begun by David Barron. Perhaps more later, but I can't resist just a quick response to Adam White's attempt to defend Cheney's consistency by repeating what I personally find a ludicrous argument that the VP is not part of the executive branch. Adam suggests that perhaps "the Office of the Vice President ... is simply sui generis." This suggestion that we can have constitutional entities not squarely in one of the three constitutional boxes simply is not going to fly with unitary-executive types of Cheney's stripe-at least not if they are being principled.
But back to the question weighing on my mind--which I know also concerns many fellow Slate bloggers, because they have eloquently expressed and forcefully addressed it in their work:
[T]he US administration ... not only sanctions the torture of prisoners taken in the so-called wars on terror but is active in every way to subvert laws and conventions proscribing torture. ... [T]he issue for individual Americans becomes a moral one: how, in the face of this shame to which I am subjected, do I behave? How do I save my honour?
These are words I recently read in Nobel-prize winner J. M. Coetzee's new novel Diary of a Bad Year. They hit me hard. What are we Americans to do to, confronted with a government that does not respect the legal and moral bounds of human decency, a government that believes torture is justified whenever the president so decrees and that all views to the contrary, of Congress and the world community, are to be ignored? How do we save our country's honor, and our own?
I felt the sense of shame and responsibility for my government's behavior especially acutely in the summer of 2004, with the leaking of the infamous and outrageous Bush administration Office of Legal Counsel Torture Memo. I served at OLC during the Clinton administration, including as OLC's head from 1997-98. It was a great privilege to serve this country I so love-and a tremendous and painful shock to see the corruption of OLC's work in the torture memo. One response from 17 former OLCers (including Slate bloggers David Barron, Walter Dellinger, and Marty Lederman) was to develop 10 "Principles To Guide the Office of Legal Counsel" (published here and in an appendix to this article). We hoped these principles, if followed, could help prevent future OLC advice that was similarly, in the words of fellow blogger and former OLCer Jack Goldsmith in his must-read The Terror Presidency, "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."
The same question, of what we are to do in the face of national dishonor, also occurred to me a few weeks ago, as I listened to President Bush describe his visit to a Rwandan memorial to the 1994 genocide there. Now let me be clear (before "comments" erupt): I am not in any way equating anything the Bush administration has done with the brutal mass murder of 800,000 people. That would be ridiculous. President Bush correctly described the Rwandan genocide as one of the most horrific episodes of the 20th century.
But President Bush spoke there, too, of the power of the reminder the memorial provides and the need to protect against recurrences there, or elsewhere. That brought to mind that whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed.
A more comparable incident, in terms of scale and potential to serve as a model, is how the Canadian government dealt with its complicity in the United States' "extraordinary rendition" of Maher Arar. The Bush administration wrongly suspected Arar, a Canadian, of terrorism and seized and "rendered" him to Syria in September 2002, where he was tortured for almost a year. The Canadian government extensively investigated the incident (hampered by the United States' refusal to participate); it ultimately issued a lengthy report and formal apology, compensated Arar with $10 million, and filed a formal protest with the United States. The Bush administration, to the contrary, has refused to apologize and has used claims of national security to keep secret any details, though when pressed in a congressional hearing, Secretary of State Condoleezza Rice finally admitted the United States had mishandled the case.
The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. Coetzee writes of his fear that "[t]he worst of their deeds we will never know":
The judgment of history is clearly a matter that exercises the minds of the US administration too. History will judge us on the basis of the record we leave behind, they say in public; and over that record, they remind themselves in private, we have an unparalleled degree of control. Of the worst of our crimes let no trace survive, textual or physical. Let the files be shredded, the hard drives smashed, the bodies burned, the ashes scattered. ... On their priority list, security-by which they mean secrecy-comes first, second, and third.
Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.
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[Marty Lederman]
Because surely not enough has yet been written about the Heller case ... I thought I'd weigh in with three fairly discrete observations about it. These remarks in certain respects complement what Akhil Amar and Kenji Yoshino have recently posted.
1. First, there has almost certainly been more textualist and originalist writings-in the briefs, the blogosphere, the law reviews, etc.-about this case than about any other in recent memory. (This is largely a function of the fact that there is so little Supreme Court doctrine on point, and thus an argumentative void that could easily be filled by appeals to text and original meaning.) Yet in my unscientific small survey, I've yet to find even one observer of the court who thinks that textualist and/or originalist arguments will have the slightest effect on the vote of even a single justice in the case ... just as in most other constitutional cases (such as the Sixth Amendment right to counsel case argued this morning), in which such arguments are window dressing, at best.
Now, of course this would not be the case if the text or original intent (or original "meaning") pointed unequivocally in one direction or the other. But as Mark Tushnet's terrific, concise volume demonstrates, they don't. Or, in any event, and as Akhil Amar emphasizes, the text and original understanding surely do not unequivocally point in the direction of securing an individual right to own a handgun for purposes of self-defense against other private parties. (That's why, as Doug Kmiec notes, Heller supporters such as Nelson Lund (see Part IV of his brief) so quickly fall back upon fairly vague and very general Blackstonian notions of a natural right of self-defense.)
I therefore agree with Akhil that the justices are much more likely to decide the case not upon evidence from text or original understanding of the Second Amendment (although such matters will undoubtedly pepper their various written opinions), but instead based upon whether they are persuaded that (in Akhil's words) "Americans have established, merely by living our lives freely across the country and over the centuries, certain customary rights that governments have generally respected; basic rights [that] are simply facts of life, the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low."
As noted below, however, I'm less certain than Akhil which way such a consideration will (or should) cut with respect to D.C.'s restrictions in the Heller case, because it turns out the district does not prohibit the use of all firearms for self-defense in one's home.
Continue reading at Balkinization ...
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Mukasey's comments were stupid and more than a little inappropriate. But like Eric, I have a certain sympathy for his mixed feelings here.
While I oppose the death penalty as a policy matter, in a legal culture in which we reserve the right to execute people for relatively routine street crimes, it seems quite absurd for the justice system to get squeamish about executing the operational masterminds of Sept. 11. It gives new meaning to the word caprice. Kill one person and you get a lethal injection; kill 3,000 and you get a term of years? It makes no sense.
And yet, nobody who has studied al-Qaida in even the most cursory fashion will sleep easy at night imagining punishments that martyr its leadership. Al-Qaida is a cult of martyrdom. Bin Laden's rhetoric is overt on this point. He talks about how al-Qaida's youth love death as much as Americans love life. He talks about suicide attacks in frankly aesthetic terms. The hanging of Egyptian intellectual Sayyid Qutb, who joyfully went to his death at Nasser's hands, made a martyr out of modern jihadism's intellectual godfather—and thus vastly magnified his myth. The last thing America needs to do is to fuel this martydom culture with more executions.
I have no idea how you square this circle—and I don't approve of the attorney general's ruminating about it publicly. I'm kind of glad, however, that he's thinking about it.