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Looking to future Supreme Courts
Prof. Robert Cottrol of George Washington Univ. college of law has raised an interesting question in an email, which I'd like to put up for discussion. He prefaced it with a running joke he has -- the problem with advocating the right to arms is the liberals don't like arms and conservatives don't like rights.
" Basically if you look at the last 50 years, if not before, where liberals have seen a right they have moved for vigorous enforcement of that right. Their view has been that nothing can be allowed to stand in the way of protection of an individual right. Convservatives on the other hand have tended to be very timid and tentative in the enforcement of rights and indeed have been generally reluctant to even discuss rights. They have tended to oppose (14th Amendment) incorporation, now only reluctantly accepting it as a fait accompli -- -- and even then probably as a fait accompli that they would overturn if the opportunity presents itself. On the second amendment, their support has quite frankly been rather anemic -- -- it's clear that many support it opportunistically, i.e., because the Democrats over the last ten years have been dumb enough to embrace European style gun control as a core value in a nation where roughly 50% of the population lives in households with firearms. Conservatives have adopted the second amendment because it is good politics, but I don't see, with some exceptions, the kind of passion and commitment that liberals show for rights that they value.
So perhaps the discussion we might have is over the long run will the second amendment be best protected by people who are generally hostile to the right but who have shown a broader commitment to individual rights or by people who are at least nominally in favor of the right but who have shown a rather weak commitment to individual rights generally?"
Let me add to Bob's point a few practical examples. Robert Bork, the ultimate conservative-right nominee for the Court. After his nomination bid ended, his writings made it quite clear that he was strongly anti-Second Amendment and would have been a disaster for the cause. He was not exactly supportive of the concept of rights as a generality (being of the statist branch of conservativism) and held the same view of the Second Amendment.
Conversely, Professors William van Alstyne and Akhil Amar, both very liberal, but both strongly supportive of the right to arms (albeit with limitations), probably because, having concluded that there was a right, they instinctively feel obliged to protect it. And Instapundit has an interesting article on the late Byron "Whizzer" White, a generally liberal Justice, but who had something of a libertarian streak that led him to vote to strike laws that just made no sense. (That is, he bucked the trend that if a law is subjected to "rational basis" analysis it is always upheld -- for him "rational basis" meant something more than "uphold the law if we can dream up any rationale for it that is not completely psychotic").
The ultimate nominee would of course be someone who has already proven to be pro-Second Amendment, someone like Judge Kozinski. But assuming we can't have that, is is better to cheer on someone who is known to be conservative, or perhaps a liberal who is open to being won over?
UPDATE: A rather modest commenter (I'd expect with a good website like that that he'd have been plugging it earlier!) posts a very informative webpage on Virginia legal provisions relating to arms and the militia, colonial VA classified ads (yes, there were such things in the 18th century) relating to arms, contemporary VA law relating to arms, and lots of other related matters. Soon as I get a chance, I'll add it into the sidebar.
ANOTHER: Bob and Clayton Cramer have pointed out the curious split of the Supreme Court in the recent case holding that a foreign conviction is not a felony under the Gun Control Act. Voting for that position was the liberal wing -- Breyer, Stevens, Sutor, Ginsberg. Voting against it, and thus for broader reading of the GCA, were the staunchly pro-2d Amendment Thomas and Scalia.
Digression: I'm working on a book which will suggest that the right-left split in fact represents two loose coalitions of at least five general political groups, whose position is really based more upon emotion or generalized feelings than upon pure political reason.
The problem ultimately is that, given the present administration, the nominees will have to be conservative, but there are at least two branches of that, the statist and the libertarian. Kozinski represents the libertarian branch, but the Administration is more likely to lean toward the statist branch. (This is not to say we can't win over that branch, too -- it was Ashcroft, a strongly statist conservative, who adopted the Second Amendment DoJ position. On the other hand, it's hard to see where that position has changed their litigation tactics any, which would be consistent with recognizing a right but being reluctant to do much about it).
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One of the upshots of the recent struggle over the Patriot Act and judges and religion in the public square is that the left, generally, is beginning to realize that there is a downside to the use of governmental power to promote, legislate and adjudicate on behalf of a philosophy. This may be the point at which the left discovers that, just maybe, rights aren't subordinate to one party's idea of what's best for all. They exist for individuals, not groups and certainly not governments. We may then see the creation of a sizeable centrist consensus - drawing from left and right - that governmental power must be checked. They may even conclude that the only way to do this is to put the power back in the hands of the individual citizen.
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Does this amendment base it it's conclution on a premise that is no longer true? Is a well regulated militia necessary to the security of the country, when we have a standing army, navy, and air force?
Using the Justice White test, is there still a rational basis for this amendment?
"where liberals have seen a right they have moved for vigorous enforcement of that right"
This initial premise is not easily justified. The Second Amendment itself is an obvious counterexample. One can maneuver around it by noting that sometimes liberals don't "see" a right which is not only as plain as day but is enshrined in black and white in the supreme law of the land, but that little reducto, rather than salvaging the thesis, renders it meaningless.
Rance, a good question. In answer, I'd direct your attention to the contemporary ancillary writings of the Framers, particularly those of James Mason, as well as those of Jefferson and the Adamses; the answer is left as an exercise for the class. Mason,in particular, had the option of drafting it thusly: "A well-regulated Militia being necessary to the security of a free State, the right of the States to raise, train, and equip militias shall not be infringed." He did not so choose.
For further reference, I'd direct your attention to The Federalist Papers; I think you'll find sufficient rationale there for the proposal that individuals retain rights; governments are (or should be) given certain responsibilities and granted closely circumscribed powers to perform their duties with respect to those responsibilities.
Drawing heavily from Locke, those men understood, as with blinding clarity, that governments are composed of human beings, imperfect in their several appetites, chief among which is the will to power. They further proposed that individuals must retain some ability to restrain those appetites, and that the ultimate (and it was to be hoped, seldom-if-ever-used) remedy would be the force of arms to secure the freedoms those in power would prefer to rescind or curtail.
Somewhat (but not really, if you're an individual libertist) off-topic:
You do understand the nearly inevitable consequences of the doctrine of sovereign immunity, don't you? One must be willing to tackle the issue and answer the question, "Are we as a society willing to be defined by our lowest common denominator, or do we aspire to the maximum liberty for the greatest number of citizens possible commensurate with a free, open, and liberal (meant in the classical, rather than politically current, sense) society?"
As a mental exercise referent to the above, suppose that a common criminal breaks into your home with the intent to steal your property, commit mayhem on your person or that of a significant other, perhaps even commit homocide. Being a crafty and somewhat experienced criminal, further suppose that he's already eliminated your capability to communicate with the outside world. Would you (as I would) stipulate that society is better off with you in it and he out, or the would you say that the reverse is true, given a mutually exclusive option set? If the former, tools adequate to the task must be at ready hand. If the latter, you've acquiesced to victimhood status and may pay the ultimate price for your judgment. Furthermore (in a hypthetical case where innocent others are involved) you have, in my view deeply immorally, forced your belief system on others either incapable (small children) or unwilling (a nonconfrontational spouse, perhaps?) to formulate a differing ethos.
If, as you propose the question, the Second Amendment fails Justice White's rationality test (and I don't think it does, for reasons mentioned above), there's an (in my judgment) insurmountable hurdle to overcome, that of practical politics. I rather doubt that in our lifetimes we'll see a sufficient number of states willing to ratify a Constitutional Amendment repealing the Second.
Which is but one of the reasons why Federal District Court, Appellate Court, and Supreme Court nominations are so important. Those of us of a (small "L") libertarian cast believe that the document has withstood the test of time and that justices of the strict constructionist variety best serve our body politic, societal changes withal. Those further left on the political continuum hold (or at least act as if they do) that societal evolution itself is the definitive model and therefore must be accomodated from the bench, without regard to whether or not such changes maximize individual liberty along with the common good.
Really, I suppose the question boils down to this:
What, for you, is the ultimate expression of the human condition? Is it the maximalization of opportunity for achievement and expression for each individual within a society commensurate with respect for others' rights to the same, or is it expansion of the powers of the State toward the goal of directing the behavior and productivity of the collective at the expense of personal liberty? I would submit that overcontrolling access to firearms is a key element of the latter, while responsible ownership and possible use of the same provides an element of protection for the former.
'Berg
Its not going to happen because it would take guts.
And that is nominate a non lawyer to the Supreme Court like George Will or Walt Williams or Tom Sowell or Charles Krammurth.
Three out of those four a pro second amendament.
Rance,
The standing (active duty) military is not sufficient to the challenges facing us today--just look at how many National Guard units are in Iraq. And you can't get around the fact that National Guard units are state militias. Sure, sure, when they are federalized, they are paid for by the feds, but the rest of the time, the states pay for them. They really are militias.
"Does this amendment base it it's (sic) conclution on a premise that is no longer true?" No, it does not. Specifically the Second Amendment sets the proper power relationship between the citizens and the state. The state is to be dependent on the people -"deriving their just Powers from the consent of the governed." The people are sovereign in our system, not the government. This is an old problem as Juvenal noted nearly 2000 years ago: "Quis custodiet ipsos custodes?" The intent of the Second Amendment is to insure that the people retain the power to resist/replace tyranical government.
I think the logic of "rights" used here to distinguish left from right is inappropriate. The left does not see a right to bear arms as primary over the right to privacy or personal well-being. Allowing others to have guns means the chance of dying by the hands of others is more likely (or having privacy invaded by gun-totting wingnuts). Hence, the the individual right to breathe freely holds sway in their world. Of course the left's view is asinine condsidering the text and meaning of the 2nd amendment, but illogic and asshat thinking are prevalent enough on both sides of the argument. My hope is that the more people know about the origin of this right, the more guns will get sold.
How about Ashcroft for Chief Justice?
There is no amendment more important than the second amendment. Without the right to bear arms we would soon have none of the other rights and no way to get them back. We must be able to protect ourselves both from crazed intruders with all kinds of bad plans for you and yours and from the government's intrusion in our lives. Frankly I'll take my chances with the former rather than the latter any day. I think that there is a lot of propaganda put out by the government about the boogey man who's right outside and about to come through your window and get you--for the purpose of keeping the weak minded shaking in their boots and totally distracted all the time to divert the attention of the sheep-le away from what they are doing that is against the best interests of all of us. Like stealing every dime that is ours they can get their hands on, like rampant corruption run amok among government at all levels, cops, & the elected representatives who sell us out every time and prostitute themselves to the highest corporate bidder (the one waving the largest crab legs and magnum of Dom Perignon at them).They're sitting in Congress voting away our rights all day long and legislating against our privacy, our freedom, our pursuits of happiness, etc. in the favor of the insurance industry to be able to gouge us better, the utility monopolies to be able to gouge us better, the pharmaceutical lobby so they can poison and gouge us better starting in preschool and lasting to the grave. Prozac is the poison and the feds, state govt, some shady unethical 'doctors' who force prozac (SSRIs/SNRIs allegedly for ADHD/ADD which is purely their own invention as vehicle for selling the concept of the poisons to parents--There is your pusher in the schoolyards of America, folks! Boy, do I feel safe knowing that the government is here to help us, don't you?? Every Columbine incident has the SSRIs at the bottom of it. Postal shooters in the workplace have SSRIs at the bottom, too. Media will not say a mumblin word about this scourge on an entire generation maybe the entire society it's so lucrative for Eli Lilley Corp with the 17 year patents and the entire country doing the zombie killer shuffle. The media are whores, too. They keep it all hid, but it's all there. Hang on to your guns because we're gonna need them when the nazi goon squads come to confiscate them--to at least fight back is nobler than cowering and giving up your only protection. Unless, of course, you have a stash of unregistered guns to retain. Still, there is going to have to be a revolt to reestablish a government of the people taking our country back. Perhaps all those guys in the woods--militia who despise government--are going to come in real handy one of these days.
There is a third option. Education. Education of the legal history of the Right to a Well Regulated Militia and the Right to Keep and Bear Arms. Using the Internet, mainstream press, and other sources eventually no matter who is selected they will not be able to refute the mountain of evidence piling up that the masses will be made aware of.
The United States lost Vietnam not by a numerically superior army, but a smarter enemy who used the American Press to change public opinion. Virginia1774 has started the Second Revolution