“REASONABLE CONVERSATION” ADVOCATES FAIL TO UNDERSTAND THE IMPACT OF HELLER ON GUN CONTROL
Gentlemen, my friend once told me
And told it to my face:
“The greatest thing on earth is love” and
“then you don’t think about tomorrow.”
Indeed, love, that’s easily said,
but as long as you grow older every day,
you don’t care a rap about love;
then you’ve got to make use of the short time that is yours.
A human being is not an animal!
For as you make your bed, so will you lie;
there’s no one to cover you up,
and if someone’s to kick, it will be me, sir,
and if someone’s to get kicked, that will be you!
Bertolt Brecht (with Kurt Weill), Act II, Rise and Fall of the City of Mahogonny, Berlin, 1927-1929, tr. Guy Stern.
As Constitutional cases go, the 2008 case of District of Columbia v. Heller is really a little case. Here is how briefly Justice Antonin Scalia was able to sum it up (after writing scads of words about the Second Amendment and deprecating the reasoning of the dissent):
“We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.”
That’s it! That is all the Supreme Court was called upon to decide. Historically and philosophically, the rule guiding c-o-n-s-e-r-v-a-t-i-v-e functional jurisprudence has been that a court should never decide more than it needs to, in order to settle the matter before it. At stake is the devolution of authority upon the federal courts to decide only “cases or controversies.” Our courts are not empowered, theoretically, to engage in discussions of matters that are not strictly speaking required to be addressed by any given case. The Court is not supposed to operate as a guide either to Executive or Legislative action. The only exceptions relate to areas of confusion and dissonance, usually among the federal Circuit Courts of Appeal. In that capacity, conservatively, the Court may issue standards and criteria that pertain to the operation of the lower courts. Otherwise, the Supreme Court is supposed to stand apart from political issues and matters better dealt with by Congress, the State Legislatures and the political system.
The most notorious extension of judicial power by the Supreme Court was the 1857 Dred Scott case. The Court should have decided that the judiciary had no power to return slaves to their masters, once those slaves had reached free territories and free States. In the alternative, the Court might have required the return of Dred Scott to his master, and let it go at that. Instead, Chief Justice Roger Taney sought to use the occasion to settle the issue of slavery by judicial fiat: he declared that the compromise of 1820 (and subsequent compromises), dividing the country into slave and free jurisdictions was unconstitutional. That upended any further attempts to resolve the slavery problem peaceably and made the Civil War inevitable.
In the Heller case, it seems to me, the Supreme Court might have dispatched the matter without even referencing the Second Amendment – certainly not necessarily defining the Second Amendment’s purpose or scope. This was especially true because the Justices must have understood the emotionality and divisiveness of disputes regarding the Second Amendment. The Court could have issued a simple, per curiam, decision declaring the D.C. legislation to be overbroad and intrusive into civil liberties in violation of the Fifth Amendment’s prohibition on the federal government’s denying any person liberty or property without due process of law.
Instead, we are now all constrained to review together the meaning of the Second Amendment. A matter of primary concern is whether the Second Amendment protects an existing right or whether the Amendment (or the decision, itself) confers a personal right to keep and bear arms. Unfortunately, for those who hope that the Heller decision might be overturned in the near future, Justice Scalia was on perfectly solid ground, when he pointed out that the text states that “the right of the People to keep and bear Arms, shall not be infringed.” That formulation entails the concept that the right already existed; otherwise, why would there be the mandate that the right not be “infringed?” The logic is exactly the same as the First Amendment’s protection of the freedoms of religion, speech, the press, and freedom of assembly. The First Amendment confers no such rights; such rights are presumed to exist, because the preclusion is against “prohibition” of freedom of religion or “abridgment” of speech, press, and assembly.
For those who seek to place a great deal of the weight of their argument on the initial words of the Second Amendment, “A well-regulated Militia, being necessary to the security of a free State,” their problem is grammatical. What they would like is a reading that turns the sentence around. They would like the Second Amendment to read: “The right of the people to keep and bear arms shall not be infringed, so that States may maintain well regulated Militias.” But that is not the Amendment that was adopted. May I inject here a slight personal note? For a number of years, I served on staff with the New York State Legislature. Each session, I was called upon to review hundreds of Bills. What amazed me was how often the language of the proposed legislation read precisely opposite to the intent of the introducer. I can’t tell you how many hours, when I would have surely preferred to be attending that free-flowing, never-ending lobbyists’ cocktail party that so reflects the values of Albany, when I was stuck at my desk rewriting statutory language for Legislators whose drafting of well-meaning initiatives, if allowed to proceed through the process, might well have achieved results contrary to their every intent.
Unfortunately for posterity, I was not there to ask the relevant questions when the language of the Second Amendment was being drafted. So Justice Scalia encouraged himself to go further. “Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” The only possible slack allowed by Justice Scalia are the words: “the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well-regulated militia’).” It is difficult to parse Justice Scalia’s meaning. On the other hand, it is equally difficult to demonstrate how accessibility to assault rifles and multiple ammunition drums and strips would not be consistent with the arming of domestic militias – and if there be a personal right to keep and bear arms, the argument that highly sophisticated automatic weapons may be banned because of their military applications falls on its face, in light of the very association urged by those who wish to enhance gun control. They cannot have it both ways. They cannot argue that the Second Amendment ties the right to gun ownership and use to the concept of a well-regulated militia, and then seek to cut off access to weapons whose use is perfectly consistent with the effectiveness of those very militias. Indeed, when ignorant (sometimes alien) but well-meaning commentators aver that assault weapons are not needed, they are not sufficiently apprised of the history of Constitutional jurisprudence to be familiar with the fact that the same ineffectual arguments were made against Fanny Hill and Ulysses. “Who needs them?” argued the Government. “That is not the point, because they are constitutionally protected,” replied the Courts.
And so we return to the issue of prudence, in the sense that the Heller decision was as imprudent as the Dred Scott decision. In the law, we have a principle that an individual is presumed to intend the logical and probable consequences of his acts. So, I would argue, the Heller decision subsumes the anticipation of increased gun violence. That assertion is based upon two theses. First, recognizing the personal right to keep and bear arms as a constitutional right elevates that right, under the Constitution, to the level of a super normative value. There are many rights Americans hold near and dear. For example, we believe in the right to collective bargaining: workers, as a group, negotiating the terms and conditions of their employment. That right may be facilitated by statute and by contract law, but it is not a Constitutional right. Every person in the United States has an equal right to access to a public education. That is a constitutional right. On the other hand, no person has a right to a quality education, let alone a constitutional right to state-of-the-art pedagogy. Thus, it is possible to conceive of a structure of laws that guarantee certain gun owners’ rights, without such rights rising to the level of Constitutional rights that bar consideration of fair and perspicacious gun regulation.
Second, the violent consequences of the Heller decision were foreseeable. I happen to disagree with recent soporific pronouncements that Americans are not a bloodthirsty people. When President Obama nominated Judge (now Justice) Sonia Sotomayor to the Supreme Court, he said he was seeking a person with empathy. His use of that word was quickly derided by the Republicans. Yet I wonder. Where was the empathy of the Supreme Court considering Heller who should have known better? Do the acts of the father, who feels he cannot provide for his family, and instead of running away, as in the past, now goes out and buys a gun and ammunition, returns home to kill his wife, his children, and himself, come as a genuine surprise to Justice Scalia?
Where was the empathy for law enforcement? Our civil rights and civil liberties rely upon law and order. Where every interaction or necessary confrontation between police and civilians becomes fraught with the danger that the officer will be shot, wounded, maimed or killed, what room is left for sensitivity toward the rights of those and adjacent or related civilians?
Where was the empathy for children, hardly more than infants, at Sandy Hook? Answer that not to me but to those parents, Justice Scalia!
I am sorry, but as in the past in these columns, I must again insist that we can have NO serious movement toward effective gun control without repealing the Second Amendment and replacing it with a new Constitutional guarantee of health care, mental health care, and preventive health care: trading for a cult of death an affirmation of life.
Whew! And to think, I managed to get through that whole analysis without adverting to the true fear of gun owners that makes them so emotional about this subject, their apprehension that gun control represents and awakens their fear of castration, so as to cause panic to override all reason.
Harvard Hollenberg is a writer and an appellate attorney in New York City.
© Copyright Harvard Hollenberg 2013. All rights reserved.