GMU Symposium, part one

A reader's comment was blocked, for some reason or other, by the spam filter. It follows, with my commentary at the end:

"Unfortunately, I was not able to make it to Mason to attend this fascinating program, but I am wondering whether you can shed any light on a debate I am having with Spanky at Spankthatdonkey.com:

Spanky says that the “worst thing Gun Owners can do to our country” is to elect Democrats -- even forcefully pro gun Democrats like Jim Webb – because they will confirm liberal Judges to the Supreme Court. These liberals, he supposes, will do bad stuff to the Second Amendment.

I start with the observation that the Supreme Court has no modern 2nd Amendment jurisprudence: the last time the Supremes visited it: United States v. Miller, 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816 (1939), the Court upheld the National Firearms Act of 1934, and determined that it did not guarantee a citizen's right to possess a sawed-off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. However, as Clarence Thomas recently observed, and as the 5th Circuit in Emerson explained “the Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.”

Insofar as I can tell, Justice Thomas -- the Supreme Court’s most activist Justice -- is the only one of the nine who has any real enthusiasm for the Second Amendment. If Thomas gets his way, and the Court actually takes up the 2nd Amendment, that would likely be BAD for gun owners: real conservative judges want the political system to address substantive 2nd Amendment issues, and keep it OUT of the Supreme Court.

While I am pleased with the scholarship that went into the 5th Circuit’s Wilson decision, I can’t see the other Circuits or the Supreme Court running to embrace it: The recent victories for gun owners at the Supreme Court, of course, have come for reasons completely divorced from the 2nd Amendment: it is the Court’s hard line view of states’ rights -- not individual gun owners’ rights -- that caused the undoing of gun free school zones and federal Brady Law mandates.

But Federalism is not likely to yield many more treats for gun owners beyond that: instead radical Federalism may have some harsh tricks for the gun world: eroding private property rights, and preventing the enforcement of conservation laws, for example.
Bush’s recent appointments to the Court essentially ensure that the gun world’s gains in the “State’s rights” area will not go away, but make it more likely that unfortunate excesses may occur.

Now Spanky has a hard time with the idea that Justices like Ruth Bader Ginsburg could be of any help to gun rights. But my developing view is that Justices like Ginsburg are a good counterbalance against Federalism run amok, and the consequences that might have for gun owners.

Perhaps more importantly, I think that the real important gun rights fights are likely to come over issues like qualified immunity, standing, the Eleventh Amendment, and to a lesser extent some of the other complimentary provisions of the Bill of Rights. Let me pose a radical proposition: the Court’s moderate to liberal wing is very good for gun owners and users who hope to enforce their rights in civil actions against state and local governments.

Where Judges like Thomas and Scalia differ – most significantly for gun owners – from the moderate Judges who are left on the Court -- is that they tend – with a few notable exceptions -- to construe the rights of the people guaranteed in the Bill of Rights against the people, and construe the remedies for vindication of those rights into non-existence. So no matter what the 2nd Amendment or the law says, these so-called Conservatives have made it easier for officials not to process your gun paperwork; to keep illegal records on you because of your guns; to prevent you from going places where you have a right to be with your guns(see, e.g., http://www.washingtonpost.com/wp-dyn/articles/A50416-2004Jul14_2.html ); to enter your house; to confiscate your guns, to arrest you because of your guns; and to shoot you or kick your ass in the process for good measure. Because of these Justices, gun owners who have their rights violated in these ways find they have little to nothing they can do about it.

I cite as an example the experiences of Mike Stollenwerk on the VCDL Board and Open Carry, http://www.opencarry.org/, in regard to the federalist/strict constructionist’s 11th Amendment and “standing” jurisprudence. Clearly these restrictive doctrines hampered his efforts to get the State of Pennsylvania to approve carry permits and gun sales without illegally demanding Social Security Numbers, and how the Right Wing’s legal jurisprudence affects gun owners rights generally.

True “liberals” are concerned about liberties: and Ginsburg had fans in the real “liberal” community even before Clinton appointed her to the Supremes. For example, as a federal appellate judge, she found that the “free exercise” of religion required the DC government to grant a drivers license to a person who refused to disclose a social security number, because that person was a Christian fundamentalist who thought the SSN was “the Mark of the Beast.” That kind of individual rights emphasis is consonant with the individual rights emphasis that most gun owners would like to see applied to gun rights.

And so it is my contrarian proposition that most outdoorsmen and gun owners likely will approve of the kind of decisions that democratic appointees actually will write in the foreseeable future on the Court: and from that, that the election of pro-gun democrats to the Senate and White House is a good thing -- or at least not bad – insofar as gun rights in the Third Branch are concerned.

Care to comment?

HARDY: Yup. I'd agree with most of this. I'd positively love it if pro-gun liberals appointed Supreme Court justices. I'd love it if they put, for instance, William van Alstyne on the Court. Folks like that would protect the right to arms as such, and also rights against unreasonable search, rights to sue when underlying rights are infringed, etc.. (My other problems with liberals having political power -- they tend to raise taxes -- are somewhat irrelevant when Court appointments are the issue).

The split among conservatives on the Court is in part because the conservative movement really has two widely differing components -- libertarian conservatives (Thomas) and rules conservatives (Scalia, for the most part). They're united mostly because the liberal movement manages to annoy both, not because they fundamentally agree. Fortunately, those two happen to agree on the right to arms. Obviously, that's not always true (Warren Burger and Robert Bork were rules conservatives, and rather hated the Second Amendment). And on the liberal side, we have liberals who... well, are liberal, realy concerned about liberty, at least non-economic liberty. (Their counterpart being of course those conservatives vitally concerned about economic liberty and far less interesting in any non-economic freedom).

The real world problem I have is that pro-gun Demos are all too few, and pro-gun liberal Demos are even fewer. And neither is to be found among the present Democratic leadership. If the Demos control the Senate, the Judiciary Committee won't be chaired by the likes of Zell Miller, but by Ted Kennedy or Chuck Schumer. And they might be no more likely to put van Alstyne on the Court than is the present Senate establishment. The last go-round with Demo control didn't end up with van Alstyne or Akhil Amar or Sanford Levinson on the Court, but with Breyer. (I guess he was Clinton's third pick, but as I recall the first two were pretty much duds, a little better than Harriet Meyers. For pete's sake, it's not like a president looking for bright liberal legal types has to scour the world to find one).

A further digression: I suppose Presidents tend to pick, and Senates to confirm, people who they think will uphold governmental power, a bias which has obvious reasons. To that extent, the choice of Thomas is the anomaly. Other than him, liberal and conservative presidents alike tend to pick people of their political group who favor governmental power.