In defence of Jeffrey Toobin

Some people are surprised that Jeffrey Toobin pointed out that:

“You know, it’s funny, the way that this hearing goes, you would think that Supreme Court precedent is some unchanging thing- that is just the law that is changed. But if you look at the Second Amendment, that’s something that’s changed dramatically over the last- for 50 years, including when I was in law school, which was more recently than 50 years ago- the idea that you had a Second Amendment right to a gun was considered preposterous. The text of the Second Amendment, I believe we have it- we have it in our system- you know, speaks of a well-regulated militia and the right to bear arms.”

I am not surprised. What most people who haven't attended law school don't realise about the "New Scholarship" surrounding the Second Amendment is that it is indeed very recent. You could count the scholarly legal writings about the Second Amendment when I went to law school on one hand!

The civic right was the accepted legal belief.

I asked my conlaw prof why we didn't study the Second Amendment and his response was "if you think things were bad (emotionally) when we studied Roe v. Wade. they get even more heated when discussing the Second Amendment." because the Civic right was the accepted legal precedent.

How will your militia be armed? (or still more Heller critique)

Like a magician, or other illusionist, Scalia diverts your attention from the real focus of the Second Amendment.

JUSTICE STEVENS relies on the drafting history of the
Second Amendment—the various proposals in the state
conventions and the debates in Congress. It is dubious to
rely on such history to interpret a text that was widely
understood to codify a pre-existing right, rather than to
fashion a new one. But even assuming that this legislative
history is relevant, JUSTICE STEVENS flatly misreads
the historical record.

Heller at p. 30

The problem is that all the quotes from the drafting history of the Second Amendment show that the concern was not a "pre-existing right" of self-defence by individuals (states yes, individuals NO). In fact, since the right is the created by the Second Amendment, that is the right which needs to be discussed. We are discussing the US constitution and the bill of rights in LEGAL sense, not popular misconceptions of that right. Also, Blackstone totally contradicts the pre-existing right of armed self-defence argument (see linked post).

Scalia spent all of Heller trying to diminsh the focus of the Second Amendment from the Militia. The problem was that the Second Amendment was specifically drafted to ensure that the Militia would be armed and that institution remain vibrant. Hence Patrick Henry's comment that was frequently used by the "RKBA" crowd.

that every man be armed

The text of the Constitutional debates surrounding the Second Amendment can be found here and here.

Self-defence was not at issue during these debates. In fact, Patrick Henry is discussing Article I, Section 8 in the record and the fact that the Federal government might not arm the militia. In fact, the full Henry quote reiterates the Article I, Section 8 language in the complete quote (see highlighted text).

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed.

More of this quote is as follows.

The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot's Debates 384-7)
Virginia, Saturday, June 14, 1788.
http://lcweb2.loc.gov/ammem/amlaw/lwed.html


Mr. HENRY. Mr. Chairman, in my judgment the friends of the opposition have to act cautiously. We must make a firm stand before we decide. I was heard to say, a few days ago, that the sword and purse were the two great instruments of government; and I professed great repugnance at parting with the purse, without any control, to the proposed system of government. And now, when we proceed in this formidable compact, and come to the national defence, the sword, I am persuaded we ought to be still more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights.
As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.
May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by aconcurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.
The argument of my honorable friend was, that rulers might tyrannize. The answer he received was, that they will not. In saying that they would not, he admitted they might. In this great, this essential part of the Constitution, if you are safe, it is not from the Constitution, but from the virtues of the men in government. If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have.

Like the Second Amendment and the Constitution, there is no mention of the concept of self-defence. The debates are published and anyone who cares to review than can do so. I really don't have the time or inclination to do so here.

Scalia gives short shrift to the actual ratification debates of the States and relies on quotes which are not contemporaneous with the adoption of the bill of rights because he doesn't want fact to ruin the fiction he has created with his new right. This right did not exist in connection to the Second Amendment until he put it on paper last year.

If anything, the quotes that Scalia uses show that his argument is without merit as the concept of self-defence may have been considered, but was not worthy of being mentioned in the Second Amendment. As I say, where are the words "self-defence" in the Constitution?

On the other hand, it is ridiculous to say that the Second Amendment enshrines a pre-existing right of armed self-defence. This right has never existed in common law, or in US Constitutional law prior to Scalia's pronouncement.

Immediate interpretation was by the Militia Act of Militia Act of 1792 providing for the authority of the President to call out the Militia which was passed 2 May 1792 by the Second Congress (Session I. Chapter XXVIII).

Scalia gives a lovely illusion, but it doesn't stand close scrutiny like any other illusion.

Or to quote the man:

“What distinguishes the rule of law from the dictatorship
of a shifting Supreme Court majority is the absolutely
indispensable requirement that judicial opinions be
grounded in consistently applied principle. That is what
prevents judges from ruling now this way, now that—
thumbs up or thumbs down—as their personal preferences
dictate. Today’s opinion forthrightly (or actually,
somewhat less than forthrightly) admits that it does not
rest upon consistently applied principle.”

I hate to end this with a question, but what exactly is Scalia's judicial philosophy?

Yet another critique of Scalia's argument in Heller.

Scalia's use of state constitutional provisions is unconvincing from a legal standpoint. State constitutions often grant individuals more protection than do analogous provisions of the federal Constitution. States also protect individual rights which are nowhere to be found in the US constutition.

For example, some states hold that their residents have an "expectation of privacy" in their garbage, meaning that the government must have probable cause to search garbage. Some states hold that traffic "check lanes," where entire lanes of drivers are stopped and checked by the police, are unconstitutional. The United States Supreme Court has held that the Federal Constitution does not recognize an expectation of privacy in garbage, and that traffic check lanes are constitutionally permissible.

States can only add to your Federal constitutional rights -- they cannot pass constitutional amendments that restrict the rights you receive under the Federal Constitution.

A state court's interpretation of the state constitution can differ from an interpretation of an overlapping federally protected right. The variance may arise from a number of circumstances, including textual differences, different legislative histories, and disagreement among courts about the correct interpretation of constitutional language. For some, independent state interpretation of state bills of rights has the benefit of allowing states to be laboratories of experimentation for new or different legal doctrines. Moreover, a state court may be better able to provide stability and clarity of law than a distant federal court.

The problem here is that Scalia used differently worded State constitutional guarantees to try to interpret the US constition. These differently worded provisions only act to obfuscate the proper inquiry.

Another no-no, but Scalia was coming up with his new right.

The problem is that there already was a unanimous decision in US v. Miller that provided this guidance to the interpretation of the Second Amendment:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

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.

UNITED STATES v. MILLER, 307 U.S. 174 (1939)

The obvious answer here is that Scalia had a new interpretation which was without legal basis or preedent that he wanted to justify.

Heller--Individual Right? Again, not so fast!

I was googling "Second Amendment military budget" and found this piece by Akhil Reed Amar where he admits that the Second Amendment doesn't contain the right to armed self-defence. But he tries to make an argument that other provisions of the Constitution do, namely the ninth and fourteenth Amendments. He is making an analogy to the right to privacy and the Roe v. Wade. Maybe he's been reading these blogs, or maybe I am reading the justices correctly.

Nice one, Akhil, but once you get away from the right to keep and bear arms and it gets even more tenuous. First off, we have to deal with the concept of self-defence as it is in legal doctrine in which deadly force is the last resort. Additionally, as I have pointed out other common law jurisdictions do not allow firearms for self-defence. In fact, self-defence items can be proscribed by law. Otherwise, we do indeed open up a Pandora's box as that means the laws on brass knuckles, coshes, switchblades, and other items would be up for grabs.

Of course, you don't have the terrorists and nuclear weapons issue, but you do get involved in what weapon is reasonable. Additionally, since deadly force is the last resort, deadly weapons such as firearms are disfavoured. The statistics for the cost of gun violence would be even more relevant than they are now in terms of how much the medical treatment of gunshot victims costs society.

So, one can attempt to claim a right to a firearm for self-defence, but the less likely it is that it will be found the further you go from actual constitutional language. As I pointed out in my post on constructionism, if it ain't in the Constitution, it doesn't exist. And in the case of firearms, it makes no sense to try and put them into a constitutional framework.

Certainly, there are more items that cause death than firearms, such as cars or swimming pools. But firearms are deadly if used properly, where the other items are deadly only if improperly used. There is a use-benefit analysis that comes in here. For example, the most dangerous act is to cross the street. On the other hand, are we going to prohibit people from walking? No, we have safety standards and laws that address that issue. So, swimming pools may cause more deaths than guns, but how many people use swimming pools who don't have injuries to reach those numbers of deaths?

On the other hand, cigarette smoking has been greatly regulated since the costs to society in terms of public health are phenomenal. Likewise, it makes sense that firearms are strongly regulated as well since the cost of misuse to society is another strain to the budget.

But it's good that people are beginning to look elsewhere to try and justify gun ownership besides the Second Amendment. Unfortunately, its a lot far too late. The "pro-gun" organisations should have been working toward keeping rural areas rural by fighting sprawl. When the countryside goes, so does shooting sports. They could also have worked toward fighting crime rather than enabling it by weakening gun laws.

So, the Second Amendment may become a dead letter for "gun rights", but it obviously won't be a wake up call. This is good. Since the more the "gun rights" crowd alienate the rest of us, the easier it will be to get strong gun laws enacted. People will question the "pro-gun" movement even more if it becomes public that they have been lied to by a special interest which has not worked in the public interest.

Self-defence, nuclear weapons, and the Constitution

Why can't I own nuclear weapons? The Second Amendment guarantees it!

This argument comes up from time to time during gun control arguments. An anti-gun person who intends to use it as a strawman argument usually offers it facetiously or sarcastically. A strawman is a logical fallacy in which a debater exaggerates an opponent's position, directs arguments at this exaggerated position, and claims to have defeated the opponent's real argument.

No this isn't a "straw-man" argument. It is a very valid critique of the individual right position.

I decided to do a search using the text of the Constitution, which is available here.

Now the term "self-defence" is never used in this document. Neither is "democracy" for that matter, instead this country is formed as a republic (article 4, section 4).

On the other hand, "provide for the common Defence" is used twice, once in the preamble and in Article I, Section 8.

The term "self" shows up once in the fifth amendment regarding self-incrimination: "nor shall be compelled in any criminal case to be a witness against himself."

Since the term self-defence is never mentioned in the Second Amendment, or the Constitution. And, given the term common defence IS used. It is very obvious that the intent of the Constitution is to deal with the common defence and not self-defence. I think it is sensible that the Second Amendment is not extended to the common law concept of self-defence.

Moreover, this is borne out in the debates regarding both the militia and the adoption of the Second Amendment. Never was the "right of self-defence" (or even "self-defence") mentioned during these debates. The issue was the common defence, not personal defence. Personal defence was not a concern. The ultimate issue was the possibility of the establishment of a standing army over the institution of the militia. As I have said before, Justice Kennedy's frontier farmer's family could have been scalped and the women raped for all "we the people" who wrote the Constitution could have cared in respect to the Second Amendment. The issue was not private arms, but the plenary power of Congress over the militia and the establishment of a standing army.

I have more than enough posts on this topic to delve too far with the issue of self-defence here, but it is a common law concept, not a Constitutional one.

In fact, the Pennsylvania Minority is mentioned regarding a personal right, yet they said "no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". This says that public injury is a reason for disarming the people. Would they support gun control given the current cost of gun violence in this country? And, the Pennsylvania minority is usually cited as a pro-self-defence position.

True, I cannot use a nuclear weapon for self-defence if that is the alleged purpose of the Second Amendment, but I am more than justified if the right extends to military purposes. We can't read the term "the people" broadly and then restrict the term "arms". That is a logical inconsistency. Both must be read broadly or read narrowly. One can't read one term narrowly and the other broadly.

Additionally, if I am entitled to a personal right to fight tyrant's armies and invading forces, then it makes total sense to have a nuclear or other form of weapon of mass destruction. I cannot fight off a tyrant who is equipped with missiles and tanks if I am not similarly equipped. Where would the US have been had Saddam Hussein actually possessed and used WMD?

On the other hand, the "right of self-defence" is one at common law and can be limited in scope by law. One cannot repulse the attack with such force that one then becomes the attacker to paraphrase Blackstone (and St. George Tucker). We see in other common law jurisdictions (e.g., Britain and Canada) where personal defence weapons are barred from ownership. Additionally, one cannot use self-defence as a reason to justify firearms ownership in Britain. In fact, the use of deadly force is extremely limited at common law, which means that a firearm is definitely not the first choice of self-defence weapon.

There is absolutely no reason to open up the Second Amendment to add the common law concept of self-defence. To do so would be to destroy the constitution. We will see all forms of litigation if a personal right is recognised where it doesn't exist. Whether that is challenging laws regarding machineguns, felon in possession, sentencing, etcetera. There is more than just a hint that this will happen as I have also cited in my other posts.

And I will indeed file a petition to the Supreme Court claiming that my Second Amendment rights are being infringed by treaties limiting nuclear weeapons if it finds an individual right.