|
|
If
the present stir among lawyers in the greater Washington, D.C., area is any
indication, the forthcoming decision in the Heller case, challenging
the constitutionality of the District of Columbia’s
“gun-control” scheme, promises to have far-reaching effects. To
hear many optimists in the pro-Second Amendment camp tell it, Heller
offers a Heaven-sent opportunity for the Supreme Court to uphold the
“individual right” of average Americans “to keep and bear
Arms.” I, however, must admit myself a pessimist on this subject. But
with no apology. For, as folk wisdom has it, “a pessimist is an
optimist who knows the facts.”
The Supreme
Court is not the proverbial laboratory “black box” into which
unbiased, scientifically minded investigators enter data, and from which
correct answers invariably emerge. Quite the contrary. It is a gaggle of
disparate individuals who have attained their offices primarily because they
managed to survive a grossly partisan-political process in which knowledge of
and devotion to the Constitution are not the most important criteria for
selection, and too often serve as grounds for rejection. Moreover, the
“data” the Court is fed usually consist of tendentious legal
theories advanced, not for the purpose of securing correct constructions of
the Constitution, but in aid of the schemes of special-interest groups and
other factions that view certain Justices as their allies and other Justices
as their antagonists in what amounts to political, economic, and cultural
warfare camouflaged as “litigation”. So, the questions anyone of
discernment should ask are: In light of the present composition of the
Supreme Court, and its fluctuating “liberal” versus
“conservative” line-ups in different decisions, was Heller
a prudent case to litigate in the first place? Do advocates of the Second
Amendment really want this Supreme Court to decide such a
potentially important—even decisive or terminal—case? Forgive me
for playing the disquieting role of Cassandra, but I doubly doubt it.
Four of the
Justices—Breyer, Ginsburg, Souter, and Stevens—can be expected to
be strongly anti-Second Amendment. Another four of the
Justices—Alito, Roberts, Scalia, and Thomas—may prove to be
tepidly pro-Second Amendment, although to what degree is difficult to
predict. The remaining Justice—Kennedy—believes (among other
bizarre notions) that the Constitution may be interpreted by reference to
foreign law; so he is a very loose cannon on a wildly rolling deck. To obtain
a barely satisfactory 5-to-4 majority, Heller must convince all four
of the possibly favorable Justices along with Kennedy. The odds for that,
even if convincing each Justice were a perfect 50-50 proposition, would be
only 1 chance in 32! But convincing each of the four
“conservative” Justices might be less than a perfect 50-50
proposition; and convincing Kennedy is far more problematic than that.
Also,
perforce of the ideological conflicts and animosities that divide the
Justices, no single majority might emerge for any particular ruling other
than the bare judgment “affirmed” or “reversed”.
Rather, a decision of the Court might arise in which some Justices concur,
and from which other Justices dissent, or as to which some Justices concur in
some parts and dissent in others, for altogether different reasons.
That could leave the Second-Amendment issue in legal and intellectual chaos,
at the mercy of subsequent decisions in the lower courts, in which the judges
are largely hostile to the private possession of firearms by average
Americans.
I fully
appreciate that, whichever Establishment candidate assumes office as
President in 2009, the composition of the Supreme Court will almost surely
change for the worse in coming years—and that therefore, if a major
Second-Amendment case must be brought to the Court, now is probably a more
propitious time than hereafter. But that reasoning holds only if such a case must
be brought, not (as with Heller) when litigating the case is entirely
optional. All contingencies considered, under the present circumstances the
essence of prudence should have been to let sleeping dogs lie in the
judiciary, and concentrate pro-Second Amendment efforts on enacting
favorable legislation in selected States, where something positive might be
accomplished with far less risk of a result that could have disastrous
consequences nationwide.
Putting
aside the problems with the Justices themselves (on the strength of the adage
that “it is a poor workman who blames his tools”), the keen
observer arrives at the question of whether Heller is litigating the case on
the strongest constitutional basis possible. Not as far as I can tell. In
keeping with the consensus among the pro-Second Amendment intelligentsia,
Heller is relying primarily on the so-called “individual-right
theory”, which focuses on the Amendment’s words “the right
of the people to keep and bear Arms, shall not be infringed”, and
minimizes consideration of the preceding words “[a] well regulated Militia,
being necessary to the security of a free State.” This approach,
however, contradicts the rule commonly employed for construing legal
documents in the late 1700s, that if “the reason of the law” is
“expressed in such clear and precise words, as to leave no doubt at all
about the ultimate effect” that the legislature “designed to
produce, or about the end which [it] designed to obtain,” then
“the meaning of the law is to be determined by the reason of it.”
Thomas Rutherforth, Institutes of Natural Law (1754-1756), Book II,
Chapter VII. See also William Blackstone, Commentaries on the Laws of
England (American edition, 1771-1773), Volume I, pages 59-62. It is
difficult to imagine that legally astute Americans of the founding era read
the Second Amendment with any other method of construction in mind. Plainly,
“the reason,” “effect,” and “end” of the
Amendment is “expressed in * * * clear and precise words,” with
an emphasis to be found nowhere else in the Constitution: “[a] well
regulated Militia, being necessary to the security of a free State.”
Which means that “the right of the people to keep and bear Arms”
must be construed with that “reason,” “effect,” and
“end” squarely in view. Surely it cannot be construed with any
hope of a correct result by disregarding, downplaying, or denigrating that
“reason.”
In addition
to this weakness, the “individual-right theory” flies in the face
of a fundamental principle of constitutional interpretation—that,
“‘[i]n expounding the Constitution * * * , every word must have
its due force, and appropriate meaning; for it is evident from the whole
instrument, that no word was unnecessarily used, or needlessly
added.’” Williams v. United States, 289 U.S. 553, 572-573
(1933).
As a
consequence of both of these demerits, the “individual-right
theory” leaves unexplored the most relevant, important, complete, and
convincing legal history—the pre-constitutional Militia statutes of the
Colonies and then independent States. The correct way to construe the Second
Amendment is as a whole, including the clause “[a] well
regulated Militia, being necessary to the security of a free State”.
Only by focusing on the Militia statutes of the thirteen Colonies and
independent States can one unerringly define what “[a] well regulated
Militia” and “the right of the people to keep and bear
Arms” meant in terms of the patterns of actual behavior, both legal and
practical, in that era. And what those words meant then they mean today, too,
the Constitution never having been amended in that particular.
Moreover,
reliance on the “individual-right theory” is
unnecessary—because Heller could easily establish that the substance of
the particular “individual right” he claims (that is, the
behavior in which he wants to engage without governmental interference)
actually operates within, advances, and conduces to “[a] well regulated
Militia”; and therefore he does not need to amputate the head of the
Second Amendment in order to prevail. Exactly how does simply possessing a
fully functional handgun and ammunition in one’s own home relate to the
Militia? Heller is a member of a Militia, perforce of the Constitution.
When the Constitution incorporated what it calls “the Militia of the
several States” into its federal structure, it incorporated as well the
principles of the Militia as they had been applied throughout the
pre-constitutional period. The fundamental principle of the Militia in every
one of the Colonies was that essentially every able-bodied free male, usually
from sixteen to fifty or sixty years of age, was required, by statute, to
acquire and to possess in his own home at all times a firearm, ammunition,
and necessary accoutrements suitable for Militia service. Once the Militia
became parts of the Constitution, this statutory duty became an individual
constitutional duty for every man (and subsequently, upon their legal
emancipation, to some degree for every woman, too) to provide himself with
“Arms” suitable for Militia service—particularly where (as
is the case today) Congress and the States (or, in Heller’s case,
Congress and its municipal creature, the District of Columbia) have failed in
their duties to enact proper legislation for organizing and arming the
Militia. This individual constitutional duty necessarily entails an individual
constitutional right—enforceable against every public official,
National, State, and Local—to possess a firearm and ammunition suitable
for Militia service. Almost every modern handgun is suitable for some kind of
Militia service. In addition, almost any (probably every) modern handgun is
suitable for personal self-defense, which, insofar as it directly and
immediately enforces the law against criminals, is an aspect of Militia
service. Thus, Heller’s possession in his home, for purposes of
personal protection, of a typical modern centerfire handgun falls within the
Second Amendment’s Militia clause as an individual right. (Of course,
as a litigator I should also want more than simply these arguments in the
record—relying in addition upon (i) copies of all the pre-constitutional
Militia laws, together with an analytical breakdown and explanation of their
fundamental principles; and (ii) actual evidence establishing beyond
peradventure the usefulness to Militia service and self-defense of the very
handgun Heller desires to possess in the District.)
The
pragmatic skeptic may ask what difference the theory of the case makes if
both the “individual-right” and the “Militia”
approaches could conceivably arrive at the same result. The answer is that
they do not necessarily converge. Under either approach, Heller
himself might win his case, by being allowed to possess his own firearm in
operable condition in his own home. But a ruling based upon the
“individual-right theory” might—indeed, probably
would—still allow for so-called “reasonable regulation” of
that supposed “right” as against many other individuals in many
other contexts. Thus, all sorts of people elsewhere throughout the country
could arguably lose as the result of Heller’s winning.
“Reasonable regulation”, after all, denies that the ostensible
“right to keep and bear Arms” is a “right” (in the
true sense of the word) at all. For, according to the practitioners of this
theory, who determines whether a regulation is “reasonable”
except some level or branch of government? If the whole purpose of the
“right” in the Second Amendment is to restrain the government,
but nonetheless the government itself can decide, on the basis of what it
considers “reasonable”, whether, when, how, and to what extent it
is to restrain itself or not, what significance other than as hollow rhetoric
does the “right” retain independent of the will of the
government?
Similarly,
Heller himself might prevail if the Supreme Court determines that the District
of Columbia’s law does not serve a so-called “compelling
governmental interest”. (For purposes of argument, I leave aside the
illegitimacy of the “compelling governmental interest”
theory—that, in fact, its sole purpose and operation is to contract
the ambit of individual freedoms and expand the reach of governmental
powers, in derogation not just of the Constitution in particular but even of
constitutionalism in general.) Yet even such a bastardized ruling in favor of
Heller would at least implicitly allow for “gun control”
in other situations. For, if a court enjoys the power to hold that a putative
governmental interest in a particular type of “gun control” under
particular circumstances is not “compelling”, it must also enjoy
the power to hold the opposite—and certainly to hold that the same type
of “gun control” under putatively different circumstances, or a
putatively different type of “gun control” under the same
circumstances, or a putatively different type of “gun control”
under putatively different circumstances, does serve a “compelling
interest”. In which cases the “individual right” to
“keep and bear Arms” must yield to the “compelling
governmental interest”, thereby reducing the “right” to the
status of a non-right (in strict legal terminology a “liability”
or “exposure”) and the Second Amendment to a merely hortatory
slogan.
Particularly
disturbing in all this is that the key adjective “compelling” has
no determinate, let alone fixed, meaning. As with any other obscenity, it
depends on the eye of the beholder. What one judge might consider a
“compelling governmental interest” for “gun control”
another might not—and no process of scientific reasoning can prove
either of them wrong. At base, the adjective “compelling” is not
a means of legal analysis at all, but a mere label attached to a judicial
conclusion. If a judge approves of some “gun-control” measure, he
will find that the arguments its proponents advance are
“compelling”; and if not, then not. So, once the concession is
made that “the right of the people to keep and bear Arms” may be
overridden by a “compelling governmental interest”, the
legitimacy of “gun control” becomes a matter of judges’
opinions, prejudices, and political agenda.
Edwin
Vieira
|
|
