One of the main purposes of this award winning blog (I have given myself several awards – the most recent for inventing a cure for physics) is to irritate partisans as much as possible as to the tribalistic and always physiological nature of their political beliefs, which I have harrumphed about endlessly elsewhere.
Many morning I scan the blogosphere, both from the left and the right, and gleefully comment upon the bias of the authors. Generally speaking, my comments all sound like longer versions of – “Good point. Of course, you're right, but your side/tribe does the same (take you pick - vicious, angry, hypocritical, biased) thing and here's why . . . ”. It did occur to me recently that one of the blog collections I frequently comment on, was not actually publishing any of my longwinded comments which I had hoped would puncture their prickly, one sided thought balloons, but did publish those by writers often described as “trolls,” that is, those whose analysis consisted of name calling and vitriol. What is vitriol, anyway? I’ve been wondering and never looked it up before. I’ve always used the word to mean something like “angry emotions” or “mean spirited verbal attacks” which is fair. But, according to the Online Etymological Dictionary, it originally meant “sulphate of iron,” an ancient compound we still use for various thingees, and later came to mean “glass/glassy” because the compound appeared that way in certain states; only from 1769 do we have record of it meaning “bitter or caustic feelings” due to its “corrosive properties” I did not know that. Anyway, I am hoping their not publishing me is a technical problem and that my fear of discrimination against moderates is just paranoia.
Besides, all my efforts at battling partisans have been for naught as I have had all the success of the world's largest paramecium trying to stem the wrath of a hurricane by franticly waving its cilia in the opposite direction.
But, undeterred, like Sisyphus rolling his stone (possibly the most overused metaphor in history) I keep wacking my head against the wall (possibly the second most . . .) , and will continue to do so today while I visit the hypocrisy of the left and right in an upcoming constitutional battle.
The battle I refer to is the Supreme Court case entitled McDonald v. Chicago which concerns the question of whether the right of individuals to bear arms, recently announced by the high court in District of Columbia v. Heller. The court considers there the second amendment, which, at risk of sounding like an attorney, states as follows:
“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.” I won’t go over my own analysis of Heller here (I've posted on this in the past - 3/21/08), but it is a reasonably settled issue after that case that individuals have the right to keep and bear arms under that amendment.
A number of questions remained after that Heller. One was, given the rule - what are the exceptions? The Supreme Court has probably cut out exceptions of every right under the constitution, even the free speech clause in the first amendment (see my 5/27/08 post, which considers how we basically only want just so much free speech).
Another question, the one which is coming up in McDonald, is whether or not the individual right to keep and bear arms can be held against the states and its subdivisions and not just the federal government. If the petitioner is successful in overturning Chicago's law, I will be able to travel to my hometown in Westbury, New York, and buy a gun, with little trouble, something I never imagined I would be able to do (or, really, wanted to do either, but that's another story).
The problem is this. There is no doubt historically that the bill of rights was meant as a bulwark against the tyranny of the federal government. Although that should have been pretty obvious, it was not decided by the Supreme Court until more than 40 years after the bill of rights came into being in a case entitled Baron v. The City of Baltimore. The facts are unimportant here and you can look them up if you like. You can argue whether that was a correct decision (why not? I know people who still argue that we never visited the moon) but you cannot credibly claim it is not the settled law.
Of course, any state, can limit its own power through its own constitution. For example, in states where the constitution provides a right to bear arms, well, a Supreme Court decision to that effect regarding the federal constitution won't make much difference. But, if a state didn’t limit itself in its own constitution or laws it was not bound by the federal bill of rights, that is, originally. It could make whatever law it felt like,even restricting speech or forcing religion upon its subjects, and so forth, while the federal government (at least in theory) could not do so.
But, then, it got complicated. After the civil war the fourteenth amendment was passed. It included the following language:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . “
There are two clauses there, which I italicized, the first generally called the privileges and immunities clause and the second the due process clause.
Soon after the fourteenth amendments was ratified, lawyers started trying to use these clauses to find a way to try to limit the states in what they could do. The first cases which dealt with it were the Slaughterhouse Cases in 1873. The city of New Orleans basically made the slaughterhouse industry there into a monopoly (the legislators getting financial consideration for it). It was challenged on both the privileges and immunities clause and the due process clause. The Supreme Court quickly dismissed the idea that states were at all limited by the due process clause (basically saying - what a dumb idea) but took more time deciding that by privileges and immunities of the United States, very little was meant – freedom to become a citizen of any state, to petition the government for redress of grievances, peaceful assembly, the right of habeus corpus, to use the navigable waters of the U.S. and to be protected by our government when at sea or in another country. It was opined by the court that the states certainly would not have agreed to any amendment which would have so limited what they could do in their own jurisdiction. That sounds like a good argument, but we have actually seen many times through our short history when states have voluntarily done just that.
Possibly the most important thing that came out of the case was the dissent by Justice Fields which championed the idea that you had certain rights – like the freedom to work in your chosen field – based on the due process clause. Although the idea would win out in time, ironically, the right to work has never been one of them.
I’m going to skip way ahead in a bit, but I just want to go through a couple more really old cases, the first being U.S. v. Cruishank, which concerned an ugly incident of time after the civil war. A group of black citizens went to a courthouse in Louisiana in 1873, the same year the Slaughterhouse Cases were decided, the state government being contested at the time. They were attacked by a white militia group and were slaughtered - somewhere between a hundred and three hundred of them. A few militiamen were indicted for violating the black’s constitutional rights.
Without going through the whole thing, a very important ruling came out of it for our purposes. The Supreme Court held that the bill of rights (freedom of speech, etc.) was not incorporated in the 14th amendment due process clause and that the second amendment was never meant to be applied against the state governments. The ruling by the court of appeals in McDonald, which is now being challenged, relied in part on the holding in Cruikshank, when it turned down the petitioners attack on Chicago's gun prohibiitions. I would note though, that the Cruikshank court also declared in the next sentence that the right existed but just wasn't dependent on the constitution. It also noted that when Cruikshank was decided, it was not considered under the doctrine of fundamental rights which we are just getting to here.
In 1884 Hurtado v. California was decided – a case about the state’s right to charge someone with a serious crime without a grand jury indictment. The federal government must have a grand jury to charge someone because it says so in the 5th amendment. But, does that mean the states do too?
Here’s some language from Hurtado:
“Due process refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by 'due process of law'.
It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.”
Despite the high sounding words, it was determined that a grand jury was not one of those rights the state had to protect or at least not violate. Almost as important, Justice John Harlan, who probably should be considered an American hero for various dissents he wrote, wrote one in this case which included the wacky idea that when the fourteenth amendment was passed, it incorporated, through the due process clause right to liberty, the first eight amendments of the constitution. I can't agree with him and I'm in good company (just about everyone). But, momentum was gaining for individual rights to be held against the state.
I’m skipping cases like a madman because you didn’t sign up for a constitutional law class and already I sense eyes narrowing. So I will skip quick as a jack rabbit on steroids to the main point. Heading into the twentieth century, the question kept being asked in various ways by justices what this admittedly hard to define term "due process" meant, and some lawyer or judge got the bright idea that it meant something like this – “a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such a government.” That's the way Justice William Moody phrased it in Twining v. New Jersey, a 1908 case).
Judge Harlan kept fighting his battle to get all of the rights of the first eight amendments incorporated into the due process and applied against the states. But, only Justice Hugo Black among the Justices would ever agree with him. But, other judges had no problem incorporating such rights from the first eight as they thought met the fundamental rights test. But, a thorny question kept coming up to – who were these judges to say that this right applied against the states and that right didn’t? Either Justice Harlan was right that all the rights in the first eight amendments came in or he was wrong. What kind of jurisprudence was it to just pick some rights as opposed to others based on some vague idea that it was a fundamental principle of liberty?
In 1937 the now legendary Justice Benjamin Cardoza took a crack at it. States couldn’t withhold free speech, a free press, a jury trial in a capital case, and so on, because these rights came in through the word liberty in the 14th amendment as they “have been found to be implicit in the concept of ordered liberty”. Well, that clears it up.
To the contrary, the reason a right like that of a suspect to a grand jury did not get this elevated status, he wrote, was because it was not “not of the very essence of a scheme of ordered liberty”. Or, put another way, this by Justice Felix Frankfurter, due process kicked in when the violation of a right so “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Just so you get a better idea, this was in a case where a suspects stomach was pumped against his will to induce vomiting so they could and did find the morphine pills he had swallowed.
Of course, you can make a lot of sound arguments against that. How about this one? The 14th amendment was passed so that southern states which had slavery couldn’t treat blacks like non-citizens and had to give them the same rights everybody else in the state had. If the drafters of the 14th amendment had wanted to the bill of rights to apply against the states, or even some of them, they would have said something like – “The states may not deprive any person (or maybe any U.S. citizen) of free speech, the right to a jury trial, blah, blah, blah” or just "The rights in amendments 1-8 apply against the states." Why wouldn’t they come up with that simple wording or something just like it instead of putting in coded phrases that no judges back then seemed to think existed? It makes no sense.
Frankfurter himself wrote in another case: "Some are in and some are out, but we are left in the dark as to which are in and which are out. Nor are we given the calculus for determining which go in and which go out. If the basis of selection is merely that those provisions of the first eight amendments are incorporated which commend themselves to individual justices as indispensable to the dignity and happiness of a free man, we are thrown back to a merely subjective test. If all that is meant is that due process contains within itself certain minimal standards which are ‘of the very essence of a scheme of ordered liberty,’ . . . Putting
upon this court the duty of applying these standards from time to time, then we have merely arrived at the insight which our predecessors long ago expressed”.
Actually, I don’t buy that either. All Justice Frankfurter really did was find a different way to phrase the same subjective test now dressed up modern judge's impression of the drafter's original insight.
Don’t get me wrong. I love that the states can’t take things like free speech, etc. from us. I just believe that the idea that it came through the 14th amendment is so much hooey. But, unlike my legal brethren, I believe that some rights should be held much higher than others, not because they are “God given,” as many claim, or were the intention of the founders, but because they are really, really good ideas and they do make us free without hamstringing the some kind of civil order. In fact, I would say they help us have order. It is one reason that I believe (alone in the legal world, apparently) is that we have a written and an unwritten constitution. Because whatever judges say about the law, this is what they have done.
Now, lets speed up all the way to the McDonald case now before the court and, ask is the second amendment one of those rights without which we cannot have ordered liberty? Is it so rooted in our history and traditions so as to be ranked as fundamental? Despite the fact that Justices Harlan and Black never got their way, virtually every right encompassed in those first eight amendments have been incorporated as fundamental rights excepting grand jury and the second amendment. Why not them too?
We all know that most conservatives are going to say "yes it is fundamental" and most liberals "no it is not". I personally think as a policy decision its a good idea for people to access to guns. In other words, if there are going to be limits (and I think few judges would think there should not be some), they shouldn’t bar you from keeping them as a general rule if you are a non-criminal or non-certifiable adult, and when you are in your own house or car, the stronger your right should be. However, I find it difficult to believe we can’t have “ordered liberty” without gun rights, because the presumption for a long time was that states did have the right to ignore the second amendment (I can hear angry argument, but I disagree), and the country never fell apart as a result of it. Besides, the few armed insurrections tried in this country failed. I can’t see it as fundamental or traditional as free speech, freedom of religion, and the various rights we have against the government depriving us of our life, liberty or property. Indeed, I think the idea that it even means what Heller says it means is highly debatable as a matter of law, even if I like the result.
Moreover, the idea that if we have guns, we can protect ourselves against government tyranny with them in some revolution is probably, at this point, a little too late. Even if “we” had a lot of guns, and better ones than the government, the military has the training and history and culture of following orders, warfare, etc., and, as a rule, we do not. In fact, thanks to our first amendment freedoms and access to the courts, we haven't needed it. I sincerely doubt armed revolution against our "criminal class" of representatives is going to happen here in the land of IPads and facebook until those luxuries are taken away. And, as we know, those who’ve tried it in the past usually don’t do so well. The example of America, separated from Britain by an ocean is actually a bad example. And please don’t say look at Kyrygstan because – seriously, there’s a big difference between taking over the government in Bishkek and that in Washington, D.C.
The other day I caught a few minutes of a southern state militia leader being interviewed by Chris Matthews. Matthews was doing his best to try and get the guy to say something provocative and foolish. But, finally, after answering the question several different ways, the militaman said (I'm paraphrasing) “What are you talking about - fight the federal government? Who said that? We’re not crazy. We’d get slaughtered.” The the idea of obstructing the power of the federal government with a state militia was basically symbolic. Not everyone would take that approach, of course. And, you might think he was lying.
There are other reasons having guns is a good idea though. One, just the basic idea of liberty and the idea that citizens can be responsible not to shoot each other or rob a bank is a good one. A culture of resolving problems without violence is much more important than keeping guns from otherwise good citizens and that certainly needs work in the 21st century. Very few Americans who own guns are ever going to shoot at someone. Self defense is another good reason. I don’t own a gun. If I ever have a midnight visitor I plan on throwing a knife at him. Most likely I will first scream like a young girl seeing a spider, then throw the knife, get it stuck in the ceiling before putting my hands up, but all the same, I’d probably be wishing I had a gun about then (like most of my neighbors).
Here’s the big irony with McDonald as I see it, because my focus is usually on the hypocrisy and demagoguery of partisanship. Since the idea that rights contained in the bill of rights could be applied against the states because they were "fundamental" was first suggested, it has been most often applauded by the left – especially in the great expansion of criminal rights since the 1960s. And, not surprisingly, it has been generally attacked by the right, who see it as more judicial activism and an invasion of the democratic and legislative process embodied in the constitution.
But, as so often happens in litigation, the left and the right will throw out their ideology like so many old newspapers if it means getting what they want. They do it all the time. Bush v. Gore is a perfect example as both sides shifting their views of federalism as on a swivel, so that the right was screaming for federal intervention and the left was saying – that’s ridiculous. They did it a few years ago in an abortion case when the right wanted a federal law which by its very definition invaded the areas they are usually screaming is an abuse of the commerce clause (as noted by Justices Scalia and Thomas); and the left, which was adamantly against any prohibition on abortion, lost the case by not raising the defense, because they feared if they succeeded in doing so, they’d be stuck with that restricted view of congressional power, which they otherwise rely upon.
Here, ironically, the right is going to be arguing that the second amendment is a fundamental right even though they’ve consistently mocked that idea and the left is going to be arguing against it, pretty much for the first time. Of course, there are always exceptions to all of this, like with any stereotype, and some on both sides have independent ideas, but it will be fairly accurate here.
A few last points about this case. First, the lawyer handling it, Alan Gura, who was also one of the principal attorneys on the Heller case, is actually only using the fundamental rights argument as his backup. His primary argument is that which was knocked down seemingly forever in the Slaughterhouse cases and Cruikshank so long ago, that the right is protected against the state by privileges and immunity. In fact, he specifically asks in his brief that the Slaughterhouse cases, Cruikshank, and another Cruikshank-like case Presser v. Illinois, be overturned. I will be very surprised if the justices go along with him on this one as P & I has never really really worked before. Indeed, if it worked, it would have to be on the vote of five conservative judges who would be opening the doors to claims of new rights and of a limiting of state perogative like never before. I don’t think they want to do that.
Indeed, the whole idea of finding gun rights "fundamental," presents the same problem, particularly for the conservative judges. For if the conservatives hold it applies here, they must forever give up some of their strongest arguments against judicial activism. However, as fundamental rights is already settled law with almost every other right in the bill of rights, they may be more likely to do so, thinking, why should OUR preferred right be one of the few left out. Indeed, I believe there is a good chance they will take this approach. However, I also believe they will also make it clear that some regulation is appropriate.
Second, one of the ironies of this case, is that in attacking Cruikshank, the petitioner is able to champion minority rights based on the horrifying facts of that case and also tie gun prohibition to white supremacy and minority self defense. This is quite a coup for the right in a sense, as for several decades they have labored to rehabilitate its public image as anti-minority (some deserved, some not).
My last point is just that I hope someone explains the law of fundamental rights to Justice Sotomaior, who so mangled the definition of it at her confirmation hearing, that I am positive she did not understand it at all. I'm being a little facetious, as she is obviously bright, and I bet knows all about it now, having suffered through that embarrassment at her hearing.
I look forward to the decision. I never tire of bashing shameless hypocrisy from politicians or the bench and expect to get the opportunity here. I am rarely disappointed by lack of opportunity.
- I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .