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Saturday, March 22, 2008

People who are too smart to find the word "arms" in the Second Amendment

I'll warn you up front: This is as harsh an assessment as I've ever written on this blog.

I know this guy has lots of credentials that are supposed to mean he's smart and well-educated.

But I've read this blog post about the pending Heller case before the Supreme Court about five times now. I cannot find in it a single sentence to confirm that the author actually does know the difference between a right directly and explicitly guaranteed in a constitution and a right created solely by legislative enactment, much less why that distinction might be important to a court. He seems to have missed the day in high school civics when the teacher explained that constitutions are supposed to be different and special.

He also writes, with a straight face:

How do we know that the Supreme Court is hypocritical?  Because it holds itself out as an impartial institution that decides the law only, but makes decisions that a twelve-year old could tie to the politics of its members — as Heller seems to make (or will make) painfully clear.

That's demonstrably false. A twelve-year-old would guess, for example, that Justice Scalia, being a good law-and-order conservative jurist appointed by a Republican, would uphold stiff criminal sentences determined by law-and-order trial judges, and that he would affirm lower courts who've "thrown the book" at flag-burners.

By the time you're a professor at the University of Chicago Law School like Eric Posner, however, it's inexcusable to fail to know that Justice Scalia has consistently voted to preserve the right to jury trial and the right to engage in political protest of the sort typified by flag-burning. If what he teaches to his students is equally shallow as what he's written for this new national legal blog run by Slate, then this man should be fired as a law professor — immediately, tenure or not, for the University would certainly have cause. This kind of political drivel disguised as legal analysis insults the integrity of the Justices of the Court (all of them, not just the conservative block), along with the intelligence of the reader (any reader, of any stripe of legal or political philosophy).

In fairness, Posner was being as monumentally and inexplicably clueless in his post as Dahlia Lithwick had already been in her post-argument Heller post upon which he purported to be commenting. Summarizing Walter Dellinger's argument in support of the District of Columbia's handgun ban — the position I'm reasonably sure she personally thinks should prevail — she wrote:

The Constitution does not create some kind of sacred, fundamental right to guns. If there's a right here at all, he says, it's at the "penumbra of the periphery" of the Constitution: in a shack behind the river where the other unenumerated rights huddle.

"The other unenumerated" rights?!? Whatever limits there may be to the constitutional right to keep and bear arms, no one who understands the meaning of the word "enumerated" can deny that this right is one (as opposed, for example, to the constitutional right to bedroom privacy, which assuredly is not enumerated anywhere in the Constitution).

Indeed, lots of us think the very fact that the right to keep and bear arms is specifically listed by name in the Constitution is pretty significant. But Lithwick writes as if it's moderately surprising that anyone has drawn the inference that the Second Amendment might even arguably relate to firearms, topside or bottom. And Posner writes as if it's utterly impossible that any members of the Supreme Court actually think the words in the Constitution count for anything, or that they might think it matters that they're in, you know, the Constitution and its Bill of Rights (as opposed to, say, in a Berkeley city ordinance).

Make no mistake: Posner and Lithwick badly want to de-legitimize judicial conservatives on the Court by equating their recognition of a personal Second Amendment right to previous acts, by liberal Justices, in "finding" constitutional rights like the "right" to an abortion. Thus can they claim that the conservatives are hypocrites, changing judicial philosophies willy-nilly to achieve their desired political results. But to make this argument track, Posner and Lithwick have to pretend that the Constitution is as silent about the right to keep and bear arms as it is about, for example, the "right" to an abortion. That's why Lithwick (falsely) suggests that Dellinger called the right to keep and bear arms an "unenumerated right," when the transcript shows that he made no such claim.

(By contrast, Dellinger himself, desiring to be treated as a serious advocate instead of a child, of course acknowledged the literal text of the Second Amendment, but (at page 27 of the transcript) tried to minimize the importance of the "keep and bear arms" language as being of secondary or tertiary importance as compared to the "well-ordered militia" language. He was emphatically not suggesting that the right to keep and bear arms was unenumerated or found only in the "penumbra" of literal language in the Constitution or Bill of Rights, like the "privacy" right "implied" by the Court out of thin air in Griswold.)

This is a level of stupidity that can only be explained by neurology, not law. It's like one of those syndromes that Oliver Sacks describes, where some sort of organic brain damage, some lesion, prevents a husband of many decades from being able to distinguish between his wife and his hat in his spoken language or even his internal mental conceptions. The notion that the Constitution's actual words might count is so contrary to Posner's and Lithwick's fundamental liberal mindsets that they go into verbal seizures, batted back to a pre-K level of understanding, just one step above drooling while chanting "Scalia ... very ... baaaad." Posner I don't know, but I can at least usually find some kernel of principled argument inside Lithwick's writings, typically buried deep under the snarky distortion that she intends to be funny, even when they swerve into the frankly dishonest. But not this time.

There are interesting arguments that can be made, and have been made, from time to time by supporters of gun control regulations. You won't find any of them in either of these two posts, however. Dahlia Lithwick and Eric Posner didn't just swing, miss, and strike out, they left their bats in the dugout and immediately wandered off from the batter's box into far, far left field, way outside the foul line and only barely still within the confines of the ballpark. I would offer a hefty wager that when this game is over, they'll still claim that it was rigged, and that their side wuz robbed. Then they'll turn, nod and gesture to their approving crowds, and bask in the roar of their righteous liberal approval.

Posted by Beldar at 01:27 AM in Law (2008), SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to People who are too smart to find the word "arms" in the Second Amendment and sent a trackback ping are listed here:


(1) nk made the following comment | Mar 22, 2008 9:06:48 AM | Permalink

Well, just in case he is right, I have already bought my sword. But would Blackstone find it "suitable to my condition"? I.e., are lawyers "gentlemen" entitled to wear swords? ^_^

On the issue of whether the Supreme Courts "makes" law, a recent case, Danforth v. Minnesota, addressed it on a relatively fine point involving the retroactiveness of a Supreme Court decision in a criminal case. Seven Justices, including Scalia, Thomas and Alito, ruled that the decision could be applied retroactively because, after all, the Supreme Court does not make law but only determines what the law already is. Roberts and Kennedy laughed out loud, err excuse me, dissented.

(2) Neo made the following comment | Mar 22, 2008 9:36:52 AM | Permalink

Come on Beldar .. his post is like a child's rant. There is no meaning. The are no intellectual underpinnings.

It's best to leave him screaming on the floor till he falls asleep.

(3) Scott made the following comment | Mar 22, 2008 9:32:02 PM | Permalink

"are lawyers "gentlemen""

NK, do you really want that answered? :)

(4) Hans made the following comment | Mar 23, 2008 7:28:08 PM | Permalink

That's Richard Posner's son, isn't it? Regression to the mean, I suppose.

The other Posner has called the Second Amendment "antiquated," which means that he acknowledges that it IS in fact an enumerated right. Maybe we'd be better off without a right to bear arms. That's an interesting debate. But these morons who claim that there is no right, or that the right is some how collective (e.g. possessed by state government) bug me to no end.

(5) Antimedia made the following comment | Mar 23, 2008 10:13:54 PM | Permalink

Silly me, with my high school degree, I am of the opinion that the government cannot create rights. It can only take them away. I think it has something to do with the Tenth Amendment's phrase about "reserved to the people", but what do I know? I'm one of those ignorant pusses that the elites would like to control.

(6) A.W. made the following comment | Mar 24, 2008 9:56:40 AM | Permalink

> The notion that the Constitution's actual words might count is so contrary to Posner's and Lithwick's fundamental liberal mindsets that they go into verbal seizures, batted back to a pre-K level of understanding, just one step above drooling while chanting "Scalia ... very ... baaaad."

I think you are hitting on something close. Certainly Lithwick is just irrational. For instance, she also claims that the (anticipated) decision is a breach of federalism. Lay persons might not always know what the term means (and the Federalist papers didn't help), but it means more or less state's rights, or at least the division of power between the Fed. Gov. and the states. So how is it a breach of federalism, when the Fed. Gov is restrained in the operation of its dominion over a federal territory--indeed the seat of that federal government? You can only explain such an inexplicable gaff by either arguing she is incompetant or irrational.

A few years ago, i used to read her and get decent analysis. now these days she just seems unhinged. This is only the worst example.

(7) David Harmer made the following comment | Mar 26, 2008 6:45:16 PM | Permalink

Ten years ago, in my last law review article (“Securing a Free State: Why the Second Amendment Matters,” 1998 Brigham Young University Law Review 55-101), I argued that the Second Amendment secures an individual right, not a collective or quasi-collective right. My article was cited approvingly in United States v. Emerson, 46 F. Supp. 2d 598, 601, 607 (N.D. Tex. 1999), a case that many Second Amendment proponents hoped would become the vehicle through which the Supreme Court would explicitly recognize the individual right to keep and bear arms. Although Emerson was reversed, 270 F.3d 203 (5th Circ. 2001); cert. denied, 536 U.S. 907 (2002), the Fifth Circuit upheld Emerson’s core conclusion that the Second Amendment secures an individual right. 270 F.3d 218-229. I’d like to hope that my admittedly minor contribution to the development of Second Amendment jurisprudence helped prepare for last week’s events.

The oral arguments in Heller gave me the occasion to re-read my article. It begins with a survey of judicial and scholarly opinion relating to the Amendment, then proceeds to examine the continuing relevance of the right the Amendment recognizes. Here’s an excerpt (with citations omitted for readability):

I heard these grievances time and again on the campaign trail. In the course of my congressional race, I met representatives of the business community, pro-family groups, and other interests; and along with them, I met many volunteers, contributors, and delegates whose primary motivation for political activity was their concern for the Second Amendment. They feared that bans on certain types of rifles and ammunition, the imposition of waiting periods prior to firearms purchases, and efforts to require firearms registration were a prelude to efforts to confiscate their guns – and, perhaps, along with their guns, other rights as well. An experience related in Forbes magazine indicates that their fears are not entirely irrational. The author recounts:

When I was growing up, I thought that nothing better demonstrated my father's nutty side than his opinion on gun control. "Any form of licensing is just an underhanded attempt to ban guns," my old man, an avid sportsman and expert marksman, would expound. I would roll my eyes. Here we go again.

Dad was right.

Last year he wanted to give me a shotgun. A premium-grade, 12-bore side-by-side, handmade in Germany in the 1920s, it has beautiful engraving on its side locks, and weighs just over 5 pounds. It would be prefect in a Ralph Lauren ad. But before Dad could send the gun from Seattle, where he lives, I had to obtain a New York City gun permit.

The ordeal began.

For all of New York City there is only one place to get an application for a long-barreled gun permit – a dingy, understaffed office in the basement of the Criminal Court Building in deepest Queens. (For handguns, there's a different place.)

After standing in line for a half-hour I was given a fistful of papers to fill out – criminal record, history of mental instability, that kind of thing. A polite clerk, Ms. Metts, wanted three full sets of fingerprints. That took another half-hour. I had to produce a recent utilities bill and my passport, and four mug shots.

Then I started doling out money: $74 for the New York State Division of Criminal Services for checking out my fingerprints; $55 to the New York City Police Department for their time. Luckily I had been forewarned: No cash, no credit cards, no checks. Bring money orders. And make sure that you have two, one for the city and one for the state.

All this took place last Nov. 15. Today is Mar. 18. Four months, and I'm still waiting for my permit.

So, Dad, you were right: From licensing guns to outright banning is only a short step. When I commented to Ms. Metts that there seemed to be an awful lot of red tape involved in the process, she cheerfully replied: "You should try getting a handgun permit. No, don't bother. You'll never get it. Frankly, we don't really want people to have guns." An honest woman.

Suppose that New York City required anyone who wished to publish a letter to the editor or speak on a radio talk show to first obtain a permit. Suppose further that the permit could be obtained only after undergoing an ordeal like that of the would-be recipient of his father's rifle. Immediately and fiercely, the attempt would be denounced from around the nation as a clear violation of the First Amendment, and the law would be judicially enjoined before it even came close to getting onto the books. But let the ordeal instead apply to those wishing to exercise Second Amendment rights, and no outcry ensues. The news media and judiciary, so jealous of First Amendment rights, are conspicuously absent when the Second Amendment is under the gun. Second Amendment advocates are correct in believing that the right that matters so much to them does not matter at all to those who report the news, to many state and local governments, or to any branch of the federal government.

The Second Amendment proponents I met in the course of my congressional campaign were not the wild-eyed radicals or paranoid conspiracy theorists of common caricature, but responsible citizens, generally with wholesome families, usually with respectable jobs, and always with the willingness to participate in the often tedious and frustrating political process. They were good people who considered their firearms badges of their waning freedom and independence, and who genuinely felt that the federal government was already infringing their right to keep and bear arms in violation of the Second Amendment. In their concerns, they were joined by many who did not own guns. As a candidate, I conducted in-district fundraisers or delegate meetings six nights a week. In nearly every meeting – along with the questions about taxes, federal spending, the predictable hot-button issues, and particular local concerns – someone would mention what happened at Ruby Ridge or Waco, usually recounting another incident of federal overreaching less lethal but closer to home. These individuals would then express genuine concern about our ability to retain a government of limited, enumerated powers which respected inalienable rights and remained subject to the consent of the governed.

In considering their views, and their deep alienation from the federal government, I reflected on the letter Sullivan Ballou, a major in the second Rhode Island volunteers, wrote to his wife Sarah at home in Smithfield, a week before he was killed at the Battle of Bull Run. Major Ballou wrote:

July 14, 1861

Washington, D.C.

Dear Sarah,

The indications are very strong that we shall move in a few days, perhaps tomorrow, and lest I should not be able to write you again, I feel impelled to write a few lines that may fall unto your eye when I am no more.

I have no misgivings about, or lack of confidence in, the cause in which I am engaged, and my courage does not halt or falter. I know how American civilization now leans upon the triumph of the government, and how great a debt we owe to those who went before us through the blood and suffering of the Revolution; and I am willing, perfectly willing, to lay down all my joys in this life to help maintain this government, and to pay that debt.

Sarah, my love for you is deathless. It seems to bind me with mighty cables that nothing but Omnipotence can break. And yet my love of country comes over me like a strong wind, and bears me irresistibly with all those chains to the battlefield.

"I am willing," wrote Sullivan Ballou, "perfectly willing, to lay down all my joys in this life to help maintain this government." Does anyone in America feel that way about the federal government now?

Perhaps the replacement of popular affinity for with resentment and apprehension of our government has occurred largely because Sullivan Ballou and his contemporaries saw their government as protecting their most fundamental rights, while the concerned citizens I met in my campaign see their government as threatening theirs. With gun owners this is particularly the case, and their fears cannot be dismissed as unreasonable.

If you’d care to read the article, it’s available online at http://www.saf.org/LawReviews/HarmerBYU.htm.

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