From the Catholic Church...

A Shameful Supreme Court Decision

The US Supreme Court has declared the District of Columbia’s ban on handguns to be unconstitutional as it violates the so called individual “right to bear arms”. We need to unpack this. The Catholic perspective is to start with Aquinas, who viewed law as “an ordinance of reason for the common good, made by him who has care of the community”. The Enlightenment era gave us another view of the law, predicated on the notion of individual liberty as the foundation of society. In other words, the person has to right to do as they wish in search of personal fulfilment, as long as it does not impinge upon the rights of another. Law is then all about the enforcement of social contracts.

It would be erroneous not to credit the Enlightenment with its achievements. Too often, rulers abused the notion of “common good” (if they even bothered to seek a rationale) to trample upon human rights and human dignity. In re-discovering and liberating this essential Catholic teaching, we must be grateful to “Enlightenment values”. But we cannot go too far, for the underlying anthropology is false. It is used to support laissez-faire liberalism, based on the notion that market exchange is a “free” exchange that reflects natural differences in the various actors. This approach as been condemned vociferously by the Church from Pope Leo XIII onwards, for the Church looks at these issues through the lens of the common good, the way Aquinas viewed the law. The ethic of private liberty has led directly to gay marriage, where the goal is simply the satisfaction of personal desires as opposed to the common good which would emphasize the bearing and rearing of children. And of course abortion is justified in this manner: the “right to privacy” is paramount, and the unborn simply cannot be active participants in a social contract.

This is a rather lengthy introduction, but, I believe, an essential one. For the right to bear arms that the Supreme Court upheld today comes directly from this notion of personal liberty trumping the common good. For the authorities charged with the common good in DC, an area suffering from extremely high gun-related violence, felt that a ban on handguns was appropriate. Of course, this ban can have limited effect absent border controls at the Potomac river. But is this a valid argument for inaction? To use that logic, the ability to travel means that no laws restricting abortion should be enacted either.

At this stage, it is useful to see what the Church teaches on this matter. Here are some statements from the USCCB:

“Since such a significant number of violent offenses are committed with handguns and within families, we believe that handguns need to be effectively controlled and eventually eliminated from our society. We acknowledge that controlling the possession of handguns will not eliminate gun violence, but we believe it is an indispensable element of any serious or rational approach to the problem….

We believe that only prohibition of the importation, manufacture, sale, possession and use of handguns (with reasonable exceptions made for the police military, security guards and pistol clubs where guns would be kept on the premises under secure conditions) will provide a comprehensive response to handgun violence.”

That is quite clear. We need a national ban on handguns. I would like the many Catholics who are cheering this ruling to explain why they so gleefully go against the bishops on this one. For this ruling really pits the two alternative approaches to law against each other. Do we go with personal liberty, which includes the right to own handguns for self-defense? Or do we go with the common good, in an atmosphere of out-of-control gun death? I stand with the Church on this one, and deem the Supreme Court decision quite shameful, rooted as it is in the kind of reasoning that gave us Roe v. Wade and gay marriage.

Scalia’s history lesson is also misplaced. First, he appeals very much to the Enlightenment-era philosophy that was prevalent when the constitution was written. Just because the “founders” believed it does not believe it is right. And anyway, as I noted, you can draw a direct line from this position to Roe v. Wade. Second, he forgets that public policy geared to the common good differs by age. A simple example: it would not be possible to achieve universal health care during the middle ages, so there is no duty to try. You know where I am going with this. Scalia’s attempts to freeze-frame jurisprudence in the late-18th century is quite at odds with the notion of law promoting the common good. Then again, his is a sola-scriptura approach to textual analysis.

FInally, the empirical question. Let me point out for a start that the rest of the developed world views the United States as extreme and insane in its approach to guns. When gun homicide and suicide rates are off the charts, the American defenders to the pseudo-right shrug their shoulders and claim that banning guns would not solve anything. It’s just that, well, the United States is just more violent than elsewhere. Nonsense on stilts.

According to the extensive research of David Hemenway from Harvard’s School of Public Health, the US is actually not that exceptionally violent, at least among other high-income, industrialized nations. Crimes like assault, car theft, burglary, robbery, and sexual incidents are not particularly high by OECD standards. What differs about the US is “lethal violence”. So while guns don’t induce people to commit crimes, they make crimes lethal. The international evidence is beyond dispute: the availability of guns leads to greater rates of homicide and suicide, and no offset in terms of lower non-gun murders. We are talking here about a primary component of the culture of death.

I’ve even tried to do a simple empirical study on this blog, looking at cross-country gun ownership and homicide rates. I found that gun ownership rate are positively and significantly related to homicide and suicide rates across 19 advanced economies, and that a bevy of other factors — GDP per capita, demographics, ethnic divisions, urbanization and inequality– did not seem to matter on their own. It’s the guns, stupid! What causes gun deaths is the availability of guns. Score one for Occam’s razor. I did a little further analysis, to see if the availability of guns enhanced the underlying factors that might cause violence. It does. Introducing a non-linear element in the regression suggests that gun ownership is especially detrimental when ethnic divisions and inequality are elevated. Does that sound like any country you know?

The other argument often touted in that many gun-owning communities are inherently peaceful, and that the problems are localized to a few inner-city areas. Even if that were true, what happened to the notion of solidarity? What happened to the common good? Ah, I forgot, individual liberty matters more. Silly me.

More Blackstone silliness!

I have to admit to musing on the fact that using Blackstone as US Constitutional authority leads to some very wrong results: especially for Catholics.

One needs to remember that the Test Acts, as well as anti-Catholic sentiment, were still going strong in Britain and the United States during the Revolutionary and Constitutional drafting periods. One of the Test Acts is titled An Act for preventing Dangers which may happen from Popish Recusants', Charles II, 1672, Statutes of the Realm: volume 5: 1628-80 (1819), pp. 782-85

Get the picture?

As I mentioned in my previous post, John Jay, the first chief justice of the US Supreme Court urged the New York Legislature to require office-holders to renounce foreign authorities "in all matters ecclesiastical as well as civil." That means you mackeral snappers need to renounce popery and put your true allegiance in the US Constitution.

Love it or burn at the stake.

I believe they were still chopping off heads and sticking them on poles as punishment for treason in Britain around this time. I am not sure about hanging, drawing, and quartering. Whatever the state of capital punishment at the time, the English Criminal law at the time of the adoption of the constitution was called the Bloody Code because a large number of crimes were punishable by execution. Transportation to the North American colonies, which went on to become the United States, and Australia after US independence, was a frequent alternative to the death penalty.

One reason we need a space program is so that we can shoot criminals into space.

It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared by Act of Parliament to be felonious without benefit of clergy; or, in other words, to be worthy of instant death — William Blackstone

I predict that Scalia's last opinion be that by using Blackstone as an authority and no less than the words of the First US Chief Justice, the Article VI language that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" is unconstitutional.

Scalia would then order that all US Catholics would be burned at the Stake on the Captiol Mall on the Fourth of July.

I mean wouldn't that be original intent?

(Note: I should write for the Onion: Scalia writes opinion advocating burning Catholics at the Stake

More Blackstone

I hinted at deference to the legislature in my prior Blackstone post which leads to some interesting knowledge.

First off:

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law.

Section The Second, Of The Nature Of Laws In General

So, one needs to defer to the intent of the legislators, not only the text. Also, if a law is within the spirit of the legislation, or not covered by the legislation, then it is presumed constutional.

3. As to the subject-matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victuals; but when we consider that the statute was made to repress the usurpations of the papal see, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after a long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

In other words, one cannot read into a law what one wants, which Scalia did. One cannot take popular meanings and interpretations which have no legal basis and use them as law: especially in the face of prior judicial precedent. Unfortunately, Scalia has shown that he is ignorant of the meaning and history of the Second Amendment. I use this in the proper term as ignorance can mean that one chooses not to take notice of something as in:

ignorance XIII. — (O)F. — L. ignōrantia, f. prp. of ignōrāre not to know, misunderstand, disregard, rel. to ignārus unaware; see -ANCE.
So ignorant XIV. ignore †not to know XVII; (of a grand jury) reject (a bill); refuse to take notice of XIX. — (O)F. ignorer or L. ignōrāre.

In fact, given Scalia's prejudices in this case, I am amazed that he did not recuse himself. It is obvious that his own opinions clouded his decision and removed them from the law. In fact, "RKBA" commentators were hopeful that Scalia would write the opinion given his known bias for this theory.

I was going to use this post to say that the judge needed to think of the consequences of his decision, but it is obvious that Scalia had only one intent and that was to give official sanction to a lie. It has burdened the Constitution with unwanted and unnecessary baggage even if it should be overturned by a decision which is based in reality.

Another point I wanted to make about reliance upon Blackstone was that the text he was commenting upon was this:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

I find it amusing that the mackeral snappers on the SCOTUS should hook their decision upon this text. Even more humourous is that the author of the Heller decision is a devout papist (or so he claims).

By what means does he presume that he is covered by this text?

If he is truly an "Originalist" than he must surely know the anti-Catholic sentiment in the English speaking world at the time of the adoption of the Constutition!

The "Second Amendment Scholar" came out with some mention of the Gordon Riots which have no meaning to the Second Amendment, but do show anti-Catholic sentiment in England and the United States at this time.

John Highham described anti-Catholicism as "the most luxuriant, tenacious tradition of paranoiac agitation in American history". Anti-Catholicism which was prominent in the United Kingdom was exported to the United States. Two types of anti-Catholic rhetoric existed in colonial society. The first, derived from the heritage of the Protestant Reformation and the religious wars of the sixteenth century, consisted of the "Anti-Christ" and the "Whore of Babylon" variety and dominated Anti-Catholic thought until the late seventeenth century. The second was a more secular variety which focused on the supposed intrigue of the Catholics intent on extending medieval despotism worldwide. Historian Arthur M. Schlesinger, Sr. characterized prejudice against the Catholics as "the deepest bias in the history of the American people" and conservative Peter Viereck once commented that "Catholic baiting is the anti-Semitism of the liberals."

William Blackstone shared the general Anti-Catholic prejudices of his age and millieu. As discussed in more detail in the article on Anti-Catholicism, his Commentaries summarized his attitude toward Roman Catholics as follows:

As to papists, what has been said of the Protestant dissenters would hold equally strong for a general toleration of them; provided their separation was founded only upon difference of opinion in religion, and their principles did not also extend to a subversion of the civil government. If once they could be brought to renounce the supremacy of the pope, they might quietly enjoy their seven sacraments, their purgatory, and auricular confession; their worship of reliques and images; nay even their transubstantiation. But while they acknowledge a foreign power, superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects.

— Bl. Comm. IV, c.4 ss. iii.2, p. *54

I find it amusing that someone who is an Originalist should not only bastardise, modernise, and debase that which he claims fidelity, but I find it even more amusing that he should do so with such a text which is obviously as dated, if not more so, than the one he has baselessly altered.

Some of America's Founding Fathers had anti-clerical beliefs. For example, in 1788, John Jay urged the New York Legislature to require office-holders to renounce foreign authorities "in all matters ecclesiastical as well as civil." Thomas Jefferson wrote: "History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government," and, "In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own."

Although, perhaps Scalia is showing his fidelity to the founders' and Blackstone's sentiments toward Catholics and being faithful to another master in deceit to the one he has taken an oath of fidelity.

Again, using Blackstone as an "Authority" is a minefield unless your intent is to destroy the Constitution.

From the Vatican

A second point, which has long been a grave concern for the Holy See, in the framework of criminal justice and crime prevention, is the sale and possession of firearms. This issue is closely related to building peace and is a key component of a truly sustainable economic and social development. Clearly, there is a link between crime and trafficking in firearms that feeds terrorism at national and international levels. A reduction in the availability of firearms will facilitate the establishment of peace and security. It will also contribute to channel money spent on trafficking weapons, into programmes for development.

INTERVENTION BY THE HOLY SEE AT THE ELEVENTH UNITED NATIONS CONGRESS ON CRIME PREVENTION AND CRIMINAL JUSTICE (BANGKOK, 18-25 APRIL 2005)

Now, I am pretty sure that the Vatican didn't directly weigh in on the issue of DC v. Heller, but we have the above concern expressed by the them regarding crime prevention. Now, the "Conservative" block of the Justices (CJ Roberts, JJ Scalia, Kennedy, and Alito) are all Catholics and should keep in mind that this is an issue that the Church has expressed concern. I was hoping to find a way to contact the Pope and ask for some sort of comment on this case.

I would be pretty certain that he would side with Washington, DC in its desire to control firearms within its jurisdiction. I can't be certain to what extent the Church would go in its opinion. I found this article from the bishop of the Diocese of Juneau, Alaska about Catholicism and gun control. Of course, the Church points out that gun control is not a panacea, but only a part of a project which requires other social matters.

The "right" of self-defence is not a part of the Constitution and in no way should be part of the constitution. To say one has a right of first recourse to deadly force flies in the face of how the concept of self-defence was understood at the time of the Constitution:

THE defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cafes, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affrayd . For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of reapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away be the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

Blacktone's Commentaries on the Law of England, PRIVATE WRONGS, BOOK III., Ch. 1

OK, it is well settled that the law of self-defence only allows the minimum of force allowed to stop the threat. Any excessive force (e.g., deadly force) can turn the defender in to an aggressor.

Now, I am looking at the St. George Tucker quote and wondering if it has been taken out of context and is actually a gloss on the Blackstone's piece on British Bill of Rights, NOT the US Bill of Rights. That would be the problem with taking quotes out of context, which I can imagine most people quoting this are doing. In fact, I think quite a bit of the "Scholarship" is people doing term searches and then just using the quote without concern of meaning or context (e.g., Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)). There are copies of Tucker's commentaries on line:

http://www.lonang.com/exlibris/tucker/index.html
http://www.constitution.org/tb/tb-0000.htm

I was able to find the whole gloss at Constitution.org, but it was chopped up so much that it was rather worthless. Indeed, it appeared to be more of a gloss on the British Bill of Rights. Compare and Contrast the British Bill of Rights to that of The US Bill of Rights seemed to have been a theme in the Heller arguments of which the advocates did a lousy job. As I said before, I am not sure what these people had been doing with their time.

Anyway, both Blackstone and St. George Tucker are rather long works which I doubt that many people have plowed through. Most of the time, Tucker is just updating Blackstone and trying to make it applicable to the US experience, especially post-rebellion. Given that the only print copy of Tucker costs US$450, I don't see too many people actually buying a copy and reading it! And given the cite for the Tucker quote: St. George Tucker, Blackstone's Commentaries 1:App. 300, he may actually be discussing the British Bill of Rights. I would also add that Tucker was not a party to the Constitutional debates, which only means that this is his opinion and definitely not legal authority regarding the Second Amendment.

On the other hand, I am really not here to discuss Blackstone, Tucker, or the "right of self-defence" which is not a Constitutional concept, but that the Vatican has expressed an opinion that firearms should be regulated. The concept of Self-defence has no requirement that firearms be made available. In fact, it has the requirement that only the minimum of force needed to stop the threat is used. The Catholic church talks about respecting life and the Constitution says that life cannot deprived without due process of law. To constitutionally sanction deadly force in self-defence flies in front of all that is proper.

There is no reason to place the "right of self-defence" within the Constitution. On the other hand, there are more than enough reasons to ensure that legislatures can regulate firearms without having to fear being second guessed by the court system.