Category: Guns

First, to Otis McDonald, Adam Orlov, David and Colleen Lawson, the Second Amendment Foundation and the Illinois State Rifle Association for winning their case. Congratulations and thanks also to the attorney who brought, argued, and won the case, Alan Gura. That two landmark cases with his name on it now. I would also take a moment to recognize Paul Clement, who NRA brought in, over the objections of the petitioners, to argue Due Process, which you might remember I had disagreed with. I think it would be unfair not to recognize his contribution to oral arguments, and also for his amicus brief on behalf of Members of Congress, which was cited in the opinion.

But aside from the folks who won the case, there are many who built the solid foundation upon which these victories stand. They should not go unrecognized. First, I should recognize Steven Halbrook. Halbrook was cited multiple times in the opinion, but his academic work on the 14th Amendment was much of the foundational basis for this opinion. Fellow blogger Dave Hardy was cited twice, in Justice Thomas’ opinion, and the opinion. He wrote one of the Amicus briefs on behalf of Academics for the Second Amendment. Dave’s involvement in this issue goes back to the early 70s, and he was one of the few individuals publishing law reviews on the Second Amendment, long before it was fashionable. Clayton Cramer was cited in both the opinion and dissent. Clayton has been writing on this subject for years, and came to be well known with his involvement in taking down Michael Bellesiles. Bob Cottrol was cited multiple times in Justice Thomas’ opinion, and has done extensive academic work on this subject, along with Ray Diamond, who co-authored one of the cited sources. We also should not forget the work of Don Kates, Joe Olsen, Dave Kopel, Glenn Reynolds, Eugene Volokh, Joyce Lee Malcom, and probably half a dozen other folks I’m forgetting.

I’d also like to take time to thank some folks at NRA for their work on this case, namely Sarah Gervase and Carol Bambery, who’s brief on behalf of Women Academics was cited in the Court’s opinion. We also should not overlook the work of NRA General Counsel himself, Bob Dowlut, who’s work on this issue goes back to the 70s, and has contributed much to this issue academically and in his role as NRA General Counsel, a position I believe he has held since I was in elementary school.

Includes commentary from Glenn Reynolds, who notes:

Even after the Supreme Court’s 2008 landmark opinion in District of Columbia v. Heller, it remained possible that the right to arms wouldn’t be incorporated against state and local governments. But after McDonald, the Second Amendment joins other provisions of the Bill of Rights that are routinely enforced against both federal and state infringements.

It may wind up being protected fairly well — as, say, First Amendment speech rights generally are — or poorly, as Fourth Amendment rights against search and seizure often are, but it is now a full-fledged part of the Bill of Rights, not a neglected stepchild that has been interpreted out of existence.

Read the whole thing. I’m still working my way through the opinion. Been reading off and on all day. My eyes are getting tired, so I may have to save the dissent until later.

Thomas agreed with the majority in McDonald in judgement, but he wrote his own opinion suggesting that the Court ought to incorporate the Second Amendment under the Privileges or Immunities clause of the 14th Amendment, as the petitioners in McDonald wanted.

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substan- tive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original mean- ing of the Fourteenth Amendment offers a superior alter- native, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Planned Par- enthood of Southeastern Pa. v. Casey, 505 U. S. 833, 963 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not “an inexorable com- mand.” Lawrence, supra, at 577. Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what ex- tent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropri- ately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.

I wish we had four more on the Court like him, because I generally agree with Thomas that stare decisis should not stand when it’s in clear conflict with the text and meaning of the Constitution, as it is here. Thomas’ opinion goes into a detailed analysis of Privileges and Immunities, and what types of rights it could conceivably cover. He also goes into the Reconstruction history of the 14th Amendment:

As a whole, these well-circulated speeches indicate that §1 was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task.

When read against this backdrop, the civil rights legis-
lation adopted by the 39th Congress in 1866 further sup- ports this view. Between passing the Thirteenth Amend- ment—which outlawed slavery alone—and the Fourteenth Amendment, Congress passed two significant pieces of legislation. The first was the Civil Rights Act of 1866, which provided that “all persons born in the United States” were “citizens of the United States” and that “such citizens, of every race and color, . . . shall have the same right” to, among other things, “full and equal benefit of all laws and proceedings for the security of person and prop- erty, as is enjoyed by white citizens.” Ch. 31, §1, 14 Stat. 27.

Both proponents and opponents of this Act described it as providing the “privileges” of citizenship to freedmen, and defined those privileges to include constitutional rights, such as the right to keep and bear arms. See 39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the “the late slaveholding States” had enacted laws “de- priving persons of African descent of privileges which are essential to freemen,” including “prohibit[ing] any negro or mulatto from having fire-arms” and stating that “[t]he purpose of the bill under consideration is to destroy all these discriminations”); id., at 1266–1267 (remarks of Rep. Raymond) (opposing the Act, but recognizing that to “[m]ake a colored man a citizen of the United States” would guarantee to him, inter alia, “a defined status . . . a right to defend himself and his wife and children; a right to bear arms”).

Three months later, Congress passed the Freedmen’s Bureau Act, which also entitled all citizens to the “full and equal benefit of all laws and proceedings concerning per- sonal liberty” and “personal security.” Act of July 16, 1866, ch. 200, §14, 14 Stat. 176. The Act stated expressly that the rights of personal liberty and security protected by the Act “includ[ed] the constitutional right to bear arms.” Ibid.

Next we have a cite in Thomas’ opinion for Dave Hardy:

First, however consequential we consider the question today, the nationalization of constitutional rights was not the most controversial aspect of the Fourteenth Amend- ment at the time of its ratification. The Nation had just endured a tumultuous civil war, and §§2, 3, and 4—which reduced the representation of States that denied voting rights to blacks, deprived most former Confederate officers of the power to hold elective office, and required States to disavow Confederate war debts—were far more polarizing and consumed far more political attention. See Wilden- thal 1600; Hardy, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866–1868, 30 Whittier L. Rev. 695, 699 (2009).

Thomas’ opinion is an excellent piece of originalist writing, very similar to Heller, in that regard. It goes into serious historical detail to make its case, highlighting the racist origins of gun control laws in this country every step of the way.

Cruikshank’s holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically suc- cessful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens.Take, for example, the Hamburg Massacre of 1876. There, a white citizen militia sought out and murdered a troop of black militiamen for no other reason than that they had dared to conduct a celebratory Fourth of July parade through their mostly black town. The white mili- tia commander, “Pitchfork” Ben Tillman, later described this massacre with pride: “[T]he leading white men of Edgefield” had decided “to seize the first opportunity that the negroes might offer them to provoke a riot and teach the negroes a lesson by having the whites demonstrate their superiority by killing as many of them as was justifi- able.” S. Kantrowitz, Ben Tillman & the Reconstruction of White Supremacy 67 (2000) (ellipsis, brackets, and inter- nal quotation marks omitted). None of the perpetrators of the Hamburg murders was ever brought to justice.22[…]

The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. As Eli Cooper, one target of such violence, is said to have explained, “‘[t]he Negro has been run over for fifty years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.’” Church Burnings Fol- low Negro Agitator’s Lynching, Chicago Defender, Sept. 6, 1919, in id., at 124. Sometimes, as in Cooper’s case, self- defense did not succeed. He was dragged from his home by a mob and killed as his wife looked on. Ibid. But at other times, the use of firearms allowed targets of mob violence to survive. One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. See Cottrol, 354. The experience left him with a sense, “not ‘of powerlessness, but of the “possibilities of salvation”’” that came from standing up to intimidation.

In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank’s contrary holding that warrants its retention.

I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

Congratulations to Bob Cottrol for being cited in Thomas’ opinion. I sincerely hope that Thomas’ opinion doesn’t get overlooked because it was not the majority view. It’s well worth reading, even for laymen, and deserves an equal place to the rest of the McDonald ruling.

I will get to Justice Thomas’ concurring opinion in a minute, which is the only opinion based on Privileges or Immunities of the majority, as well as the two dissenting opinions in the case a bit later. But first some reactions. I think Jacob had the money quite earlier when he said, “Who will have the most outrageous outburst? Daley, Bloomberg or Meano?” Well, Bloomberg’s statement is here, in which he declares victory in McDonald. This reflects the opinion of the Brady Campaign, who are also declaring victory. Doesn’t look like Daley has commented yet, and neither has Menino, so I guess Bloomberg gets the win!

Josh Sugarmann, head of the Violence Policy Center, to his credit, at least has the ability to call a spade a spade and show they understand who won. Give the Bradys lemons they’ll make lemonade. Give Josh lemons he’ll just get more sour. VPC’s official statement is very much them, and can basically be summed up as “The gun lobby won, so now everyone is going to die!!!”

On our side, The Tribune notes that residents they asked were pleased about the decision. NSSF is pleased, no doubt, if you ask Josh, so they can continue to produce their baby killing bullet hoses and sell them to criminals. Also see this release from the Attorney General of Texas, Greg Abbott, who filed a brief in this case along with 38 other states’ attorneys general. SAF has every right to be proud of their accomplishment in this case as well, being the main backers of Alan Gura’s efforts on behalf of gun rights. NRA has issued two statements, one by Wayne LaPierre, and the other by ILA, noting they are pleased with the results in the case. ISRA, who was a party to the case, reaction is “utter delight.”

I was a little worried when I saw Scalia authored a separate opinion. I think Justice Scalia’s concurring opinion is pretty much summed up thusly by his own words:

I write separately only to respond to some aspects of JUSTICE STEVENS’ dissent. Not that aspect which dis­ agrees with the majority’s application of our precedents to this case, which is fully covered by the Court’s opinion.

In other words, he didn’t want Justice Alito to have all the fun, and wanted to take some separate shots at Stevens. And that he does, first by attacking his proposed incorporation philosophy as it pertains to other issues:

JUSTICE STEVENS proceeds to urge readoption of the theory of incorporation articulated in Palko v. Connecticut, 302 U. S. 319, 325 (1937), see post, at 14–20. But in fact he does not favor application of that theory at all. For whether Palko requires only that “a fair and enlightened system of justice would be impossible without” the right sought to be incorporated, 302 U. S., at 325, or requires in addition that the right be rooted in the “traditions and conscience of our people,” ibid. (internal quotation marks omitted), many of the rights JUSTICE STEVENS thinks are incorporated could not pass muster under either test: abortion, post, at 7 (citing Planned Parenthood of South- eastern Pa. v. Casey, 505 U. S. 833, 847 (1992)); homosex­ ual sodomy, post, at 16 (citing Lawrence v. Texas, 539 U. S. 558, 572 (2003)); the right to have excluded from criminal trials evidence obtained in violation of the Fourth Amendment[…]

That JUSTICE STEVENS is not applying any version of Palko is clear from comparing, on the one hand, the rights he believes are covered, with, on the other hand, his con­ clusion that the right to keep and bear arms is not cov­ ered. Rights that pass his test include not just those “relating to marriage, procreation, contraception, family relationships, and child rearing and education,” but also rights against “[g]overnment action that shocks the conscience, pointlessly infringes settled expectations, tres­ passes into sensitive private realms or life choices without adequate justification, [or] perpetrates gross injustice.” Post, at 23 (internal quotation marks omitted). Not all such rights are in, however, since only “some fundamental aspects of personhood, dignity, and the like” are protected, post, at 24 (emphasis added). Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,”

Scalia here is accusing Stevens of bringing his personal opinions to the table without having any legal justification for why things are to be this way. He continues:

I can find no other explanation for such certitude except that JUSTICE STEVENS, despite his forswearing of “personal and private notions,” post, at 21 (internal quotation marks omitted), deeply believes it should be out.

Ouch.

JUSTICE STEVENS resists this description, insisting that his approach provides plenty of “guideposts” and “con­ straints” to keep courts from “injecting excessive subjectiv­ ity” into the process.3 Post, at 21. Plenty indeed—and that alone is a problem. The ability of omnidirectional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve. […]

The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd. If there are no right answers, there are no wrong answers either. […]

JUSTICE STEVENS also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. Post, at 23. That is true, but JUSTICE STEVENS would have them show respect in an extraordi­ nary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” Ibid. In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, ap­ parently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accom­ plishes the objective of ensuring that the rights this Court held protected in Casey, Lawrence, and other such cases fit the theory—but at the cost of insulting rather than re­ specting the democratic process.

I just have a picture in my head of Machine Gun Sammy standing over a bound copy of Steven’s dissent with a Thompson M1 submachine gun, with Scalia taking it from him saying, “Give that thing to me, there’s still a few pages in that thing that aren’t quite thoroughly shredded.”

JUSTICE STEVENS must there­ fore have in mind some other use for the careful­ description requirement—perhaps just as a means of ensuring that courts “procee[d] slowly and incrementally,” post, at 25. But that could be achieved just as well by having them draft their opinions in longhand.4

Brutal. He goes into Steven’s assertions on Second Amendment incorporation next:

JUSTICE STEVENS begins with the odd assertion that “firearms have a fundamentally ambivalent relationship to liberty,” since sometimes they are used to cause (or sometimes accidentally produce) injury to others. Post, at 35. The source of the rule that only nonambivalent liber­ ties deserve Due Process protection is never explained— proof that judges applying JUSTICE STEVENS’ approach can add new elements to the test as they see fit. The criterion, moreover, is inherently manipulable. Surely JUSTICE STEVENS does not mean that the Clause covers only rights that have zero harmful effect on anyone. Otherwise even the First Amendment is out. Maybe what he means is that the right to keep and bear arms imposes too great a risk to others’ physical well-being. But as the plurality explains, ante, at 35–36, other rights we have already held incorporated pose similarly substantial risks to public safety. In all events, JUSTICE STEVENS supplies neither a standard for how severe the impairment on others’ liberty must be for a right to be disqualified, nor (of course) any method of measuring the severity.JUSTICE STEVENS next suggests that the Second Amendment right is not fundamental because it is “differ­ ent in kind” from other rights we have recognized. Post, at 37. In one respect, of course, the right to keep and bear arms is different from some other rights we have held the Clause protects and he would recognize: It is deeply grounded in our nation’s history and tradition. But JUSTICE STEVENS has a different distinction in mind: Even though he does “not doubt for a moment that many Americans . . . see [firearms] as critical to their way of life as well as to their security,” he pronounces that owning a handgun is not “critical to leading a life of autonomy, dignity, or political equality.”6 Post, at 37–38. Who says? Deciding what is essential to an enlightened, liberty-filled life is an inherently political, moral judgment—the an­ tithesis of an objective approach that reaches conclusions by applying neutral rules to verifiable evidence.

That’s pretty good in and of itself, but it gets better:

No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do. Post, at 40–41. When it comes to guns, JUSTICE STEVENS explains, our Nation is already an outlier among “advanced democracies”; not even our “oldest allies” protect as robust a right as we do, and we should not widen the gap. Ibid. Never mind that he explains neither which countries qualify as “advanced democracies” nor why others are irrelevant. For there is an even clearer indication that this criterion lets judges pick which rights States must respect and those they can ignore: As the plurality shows, ante, at 34–35, and nn. 28– 29, this follow-the-foreign-crowd requirement would fore close rights that we have held (and JUSTICE STEVENS accepts) are incorporated, but that other “advanced” na­ tions do not recognize—from the exclusionary rule to the Establishment Clause. A judge applying JUSTICE STEVENS’ approach must either throw all of those rights overboard or, as cases JUSTICE STEVENS approves have done in considering unenumerated rights, simply ignore foreign law when it undermines the desired conclusion, see, e.g., Casey, 505 U. S. 833 (making no mention of foreign law).

Yesterday I went to my dad’s, and took the smoker so I could smoke some ribs. I used hickory chunks because I wanted the deep smokey flavor they provide. Next time perhaps I need to try to use Justice Scalia’s opinion here to see what flavor his piercing and witty sarcasm conveys to the meat. I think it would be delicious.

JUSTICE STEVENS’ final reason for rejecting incorporation of the Second Amendment reveals, more clearly than any of the others, the game that is afoot. Assuming that there is a “plausible constitutional basis” for holding that the right to keep and bear arms is incorporated, he asserts that we ought not to do so for prudential reasons. Post, at 47. Even if we had the authority to withhold rights that are within the Constitution’s command (and we assuredly do not), two of the reasons JUSTICE STEVENS gives for abstention show just how much power he would hand to judges. The States’ “right to experiment” with solutions to the problem of gun violence, he says, is at its apex here because “the best solution is far from clear.” Post, at 47– 48 (internal quotation marks omitted). That is true of most serious social problems—whether, for example, “the best solution” for rampant crime is to admit confessions unless they are affirmatively shown to have been coerced, but see Miranda v. Arizona, 384 U.S. 436, 444–445 (1966), or to permit jurors to impose the death penalty without a requirement that they be free to consider “any relevant mitigating factor,” see Eddings v. Oklahoma, 455 U. S. 104, 112 (1982), which in turn leads to the conclusion that defense counsel has provided inadequate defense if he has not conducted a “reasonable investigation” into potentially mitigating factors, see, e.g., Wiggins v. Smith, 539 U. S. 510, 534 (2003), inquiry into which question tends to destroy any prospect of prompt justice, see, e.g., Wong v. Belmontes, 558 U. S. ___ (2009) (per curiam) (reversing grant of habeas relief for sentencing on a crime committed in 1981). The obviousness of the optimal answer is in the eye of the beholder. The implication of JUSTICE STEVENS’ call for abstention is that if We The Court conclude that They The People’s answers to a problem are silly, we are free to “interven[e],” post, at 47, but if we too are uncertain of the right answer, or merely think the States may be on to something, we can loosen the leash.

My basic conclusion is that Scalia clearly did not believe the majority opinion savaged Justice Stevens enough, and he wanted to make sure his opinion is thoroughly skewered.