Dear Walter, Jack, and Cliff:
So this is what a lobotomy feels like. Reading the Heller decision, it’s as if I have been transported to some alternate universe in which United States v. Miller never happened at all. Miller was, I believed, a unanimous announcement in 1939 that “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.” Until quite recently every court in the country believed—maybe wrongly—that this established a collective-rights rule for the Second Amendment. What is seriously causing me to doubt my sanity today is the almost universal media claim that the court just looked at this question for the first time since 1791.
See, for example, this CBS story: “The court had not conclusively interpreted the Second Amendment since its ratification in 1791.” CNN reports that “[t]he Supreme Court had avoided the question since the Bill of Rights was ratified in 1791.” WHSV clears it all up by explaining that “[i]t is the first time since the amendment was ratified in 1791 that the essence of the meaning of the Second Amendment has been clearly defined.” Miller was just a sort of screen-saver. Heller is about the essence of the meaning.
Look, I am totally willing to plead Canadian on the gun question. Don’t like guns. Wildly prefer the hockey stick. But I reckon that reasonable people can differ about the costs and benefits of guns and also about how to interpret the Second Amendment. I am in no way surprised to see that Justice Antonin Scalia reads Miller to say that the case is only about government regulation of short-barreled shotguns and not about whether those guns have any “relationship to the preservation or efficiency of a well regulated militia.” If you are going to read the whole Second Amendment with your thumb over the militia clause, you pretty much have to read Miller that wayas well.
Am I wrong to say that Scalia doesn’t accord the historical understanding of Miller even the tiniest bit of respect? “Miller did not hold that and cannot possibly be read to have held that,” he proclaims. (Scalia calls the defendants in Miller “crooks,” just so you get the idea that they deserved to lose simply for being bad guys.) But what really raises the hackles on my dander is when the mainstream media agree to announce that Miller either didn’t say what it said, or mean what it meant, for the dozens of courts that have relied upon it for decades. According to professor Robert J. Spitzer in his most recent book, Saving the Constitution From Lawyers, in the 70 years since Miller, federal appeals courts have relied on Miller’s collective-rights theory more than 40 times, and the Supreme Court has denied certiorari in almost half of those cases—allowing them to stand because it considered this a closed matter. Why is it easier for the majority and the media to pretend this was a question never before decided than one that had been—correctly or not—decided and relied upon for decades?
It’s not like I have any expectation that Justices Antonin Scalia or Clarence Thomas would be moved by the existence of a precedential ruling. They eat old precedents for breakfast. But if you’ve been singing hymns to the chief justice and Alito for their willingness to adhere to precedent with which they disagree, ask yourselves whether it’s better to overrule old cases directly or do what everyone seems to wish to do with those old precedents and pretend they aren’t there. In yesterday’s child-rape case, Alito made a big point of arguing about the importance of state court reliance upon dicta in Coker v. Georgia because even though it’s dicta,“lower courts and legislators also take into account—and I presume that this Court wishes them to continue to take [it] into account.” Today, Scalia scoffs at later Supreme Court reliance upon Miller as “footnoted dictum.”
If the lower courts have indeed been suffering for 70 years from the same mental defect as I am—the irrational belief that Miller meant something—one might think Scalia would at least nod to that. Offer up a little “whoopsie.” Instead he spends his time assailing Justice John Paul Stevens for his devotion to Miller as though Stevens is some kind of nutty lone crusader. Poor Stevens is left to huff in dissent that since Miller, hundreds of judges have relied on the collective-rights view and that “even if the textual and historical arguments on both sides of the issue were evenly balanced,” the court should have erred on the side of precedent.
The reason I am so annoyed by this is that—as long as we’re trotting out hobbyhorses, Cliff—it’s of a piece with the Bush administration’s claims in the torture context that every day is Groundhog Day when it comes to the law of torture. Every settled legal question can be reopened and re-examined—John Yoo is doubtless testifying to that fact this very moment—so long as someone, somewhere is willing to pretend it was never a settled question in the first place.