18 March 2008
History Never repeats, or does it?
Justice James Clark McReynolds is widely considered one of the most unpleasant men to ever sit on the Court, being labeled "Scrooge" by Drew Pearson in his book The Nine Old Men.
Chief Justice Taft thought him selfish, prejudiced, "and someone who seems to delight in making others uncomfortable... He has a continual grouch, and is always offended because the court is doing something that he regards as undignified." Taft also wrote that McReynolds was the most irresponsible member of the Court due to his tendency to take holidays (go on vacations in septic terms), and that "[i]n the absence of McReynolds everything went smoothly". Taft's dislike of McReynolds was not based on the latter's views of the Constitution and the law, which usually did not differ from the Chief Justice's. Taft wrote that although he considered McReynolds an "able man", he found him to be "selfish to the last degree... fuller of prejudice than any man I have ever known,... one who delights in making others uncomfortable. He has no sense of duty... really seems to have less of a loyal spirit to the Court than anybody.
Justice McReynolds would not accept "Jews, drinkers, blacks, women, smokers, married or engaged individuals as law clerks."
McReynolds is known to have been misogynistic and anti-semitic. McReynolds refused to speak to Louis Brandeis, the first Jew on the Court, for three years following Brandeis's appointment and, when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to justices on their retirement. He habitually left the conference room when Brandeis spoke. When Benjamin Cardozo's appointment was being pressed on Hoover, McReynolds joined with Justices Butler and Van Devanter in urging the White House not to "afflict the Court with another Jew." When news of Cardozo's appointment was announced, McReynolds is claimed to have said "Huh, it seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew, or both." During Cardozo's swearing-in ceremony, McReynolds pointedly read a newspaper, and would often hold a brief or record in front of his face when Cardozo delivered an opinion from the bench. According to John Frush Knox, McReynolds's law clerk in 1936-37 and the author of a memoir of his service, McReynolds never spoke to Cardozo at all. McReynolds even absented himself from the memorial ceremonies held at the Supreme Court in honor of Cardozo. He did not attend Felix Frankfurter's swearing-in, exclaiming "My God, another Jew on the Court!".
McReynolds's rudeness was not confined to colleagues on the Court. Once, when called before the chairman of the Golf Committee at the Chevy Chase club after complaints were filed against him, McReynolds said: "I've been a member of this club a good many years, and no one around here has ever shown me any courtesy, so I don't intend to show any to anyone else." The indignant chairman replied: "Mr Justice, you wouldn't be a member of this club if it wasn't for your official position. The members of this club have put up with your discourtesy for years, merely because you are a member of the Supreme Court. But I'm telling you now that the next time there is a complaint against you, you'll be suspended from the privileges of the golf course." Justices Pierce Butler and Willis Van Devanter transferred from the Chevy Chase club to Burning Tree because McReynolds "got disagreeable even beyond their endurance."
McReynolds has been called the most reactionary of Supreme Court Justices.
Yet, Justice McReynolds was the author of United States v. Miller 307 U.S. 174 (1939), which prior to DC v. Heller was the only Supreme Court decision to directly address the Second Amendment. It was a unanimous opinion which has been accepted as that the holding is:
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
To summarise yet another time, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State", and the guarantee, the "right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpeted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered "surplusage". The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.
I personally believe that Justice McReynolds would be appalled at the possibility that DC v. Heller could find that the Second Amendment would find any right outside of militia duty. It would be interesting to see what sort of comments he would be making about the so called "Right to keep and bear Arms" crowd if he were here today.
Now, Justice Alito is allegedly the most conservative of Supreme Court justices on the bench today. If US v. Rybar gives any indication of Justice Alito's opinion of the application of the Second Amendment, we can believe that Justice Alito will also find no merit in Heller's arguments as he previously found no merit in the same arguments when they were presented in Rybar.
Now, the right wing, I do not find these people "Conservative" by any means, have said that a finding of an individual right will mean that:
And Heller is just the beginning. There will be more Second Amendment cases. If the Court finds the Second Amendment guarantees to American citizens an individual right to own firearms, 20 years of major cases will follow, fleshing out the contours of this right. according to Sandy Froman
Better yet, we will have litigation on the laws regarding felon in possession of a firearm.
Robert Levy has also said that other gun laws will be brought into question, meaning that a finding of an individual right will open the floodgate of litigation to try and overturn every regulation on firearms.
Now, as I understand conservatism means one does not lightly change the status quo, especially if that status quo involves public safety. However, what is called conservatism is the United States is really reactionaryism. Although, I think even Justice McReynolds would seem liberal compared to this strain of reactionaryism. While Justice McReynolds may have been misanthropic, he certainly was no idiot.
My hope is that Justice Alito will follow the conservative strain as shown by Justice McReynolds and not this tom foolery which calls itself conservativism these days. I hope that he can pull the same sort of coup which a curmudgeon like Justice McReynolds could bring about a unanimous court to find that the second Amendment guaranteed no individual right, but was to be interpreted as guaranteeing the effectiveness of the forces organised under Article I, section 8 of the Constitution.
The priority of government should be to assure the welfare of its people, which a finding of an individual right to firearms will not. A finding of an individual right will only mean that the United States will continue to have the highest body count and a plague of injuries due to firearms.
A guarantee of security will become carte blanche for terror.
The true conservative opinion regarding the Second Amendment is that it has no bearing upon an individual right to firearms and never has. Of course, Justice McReynolds wouldn't be too surprised if the Court did something as undignified and unprecedented as finding an individual right.
Let's surprise the old fart this time.