A Tricameral Legislature?
Within the past week the U.S. Supreme Court has decided that the death penalty could not be used as a punishment for child rape and that the District of Columbia could not ban private ownership of handguns. Generally speaking, the first displeased the Right and the second displeased the Left. But as an outsider to constitutional law, most striking to me (and Mark Krikorian) are the similarities between these decisions.
In neither case were the justices doing anything like what we mean in everyday speech by “interpreting the law”. They were simply making law based on personal judgment. I won’t try to parse these specific decisions (and am not competent to, in any event), but I will note that in both cases 56% of the justices supported one side and 44% the other side on questions that strike me as pretty fundamental, rather than the kind of technical corner issues on which experts in any field will disagree.
A more cynical man than I might go so far as to ask how the Supreme Court differs from a third legislative chamber. It has the word “court” in its name, but it hardly seems to behave anything like the local superior court where I sat on a jury. It holds hearings, after which the nine members vote, and the majority rules. Just like the House or the Senate does, this chamber held a couple of votes last week: the conservatives won one, and the liberals won the other. It’s true that the members aren’t elected directly, but are instead nominated by one elected official (the President) and voted on by 100 elected Senators. Of course, members of the Senate were also selected indirectly, by State Legislatures, for more than a century. Further, this third chamber can not originate legislation (though the Senate also has restrictions on the kinds of legislation that it can originate), but on the other hand has a veto power on all legislation that is (currently treated as) final and absolute.
It seems that one reality of contemporary American government is that any restrictions on behavior that rely on “judgmental” prohibitions tend to be worn down to meaninglessness over time. As an example, the Senate filibuster was used only rarely, and for cases viewed as imperiling some deep interest, within living memory. Now, as far as I can see, any measure requires 60 votes to pass the Senate. The same basic dynamic appears to be true for presidential signing statements, to choose an executive branch function.
Thus far, we have not degenerated to the late-Roman logical endpoint of this process, in which we debate the meaning of words like “majority”, “five” or “four”. When you get to this stage, of course, the constitution, or any law, means what those who control a preponderance of armed force say it means (or more precisely, act as if it means). The logical response of an executive in such a regime who can count on the loyalty of the army is simply to laugh when presented with an “order” by nine old men and women without guns. More likely, a shrewd politician, recognizing the vestigial memory of rule of law, would couch refusal to obey in some comforting legalisms in order to minimize opposition. Isolated incidences of the executive simply refusing to obey a Supreme Court ruling have happened in U.S. history. This is why it was so incredibly dangerous for President Clinton to say “It depends on what the meaning of the word ‘is’ is”. Ultimately, the project of constitutional governance, and the rule of law itself, requires that we share a good-faith understanding of the meaning of words. Of course, before conservatives pat themselves too hard on the back, remember that this was in the context of an impeachment proceeding that was, even seen in its best light, playing with fire.
It seems to me that the choice confronting principled conservatives faced with a court that has become something like a legislative body is either to: (1) mouth platitudes about “appointing justices who will interpret the law, not make the law”, while in practice making sure to put “our guys” on the court who will rule “our way”, or (2) actually select justices who see a much narrower scope of authority for the Supreme Court, and speak out aggressively when they go beyond this remit, especially when the substance of the specific ruling cuts against what is typically seen as the conservative outcome.
The second choice might seem like unilateral disarmament, but I don’t see it that way. I think that, over time, the electorate will recognize and support those who take this approach. And if I’m wrong about this, and they basically don’t care, then the constitutional regime is doomed anyway.
You’re more right than wrong, Jim. A principled conservative position in Heller would have been to admit the murkiness of the 2nd Amendment’s wording and purpose, then abstain from any sweeping decisions until a correctio amendment was passed by Congress and ratified.
— JA · Jun 30, 08:41 PM · #
I’m no constitutional theorist either, but I feel that there are some striking differences between the two decisions. In Heller, Scalia (somewhat surprisingly) went to great lengths to distinguish between the fundamental right to bear arms and provisions legislatures may enact to reasonably restrict said right.
Kennedy’s decision, on the other hand, relied on the vague notion of a durable “national consensus” against the expansion of capital punishment to forbid the imposition the death penalty on child rapists. Whatever you may think of capital punishment, the Heller ruling is positively accommodating of legislative prerogatives when compared to Kennedy’s decision.
On a related note, does this mean you would support nominating Justices like Souter, who may be inclined towards ideological liberalism but are otherwise more sympathetic to the principle of stare decisis?
— Will · Jun 30, 09:11 PM · #
The hilarious thing about Kennedy’s ‘national consensus’ was that both candidates for President promptly stated that they support the death penalty for child rapists. It is a pity Kennedy was not able to advise them on how they should target their messages to this ‘consensus.’
— kab · Jun 30, 09:19 PM · #
“And if I’m wrong about this, and they basically don’t care, then the constitutional regime is doomed anyway.”
It somehow feels as if all was said in this final sentence. :\
— ezekiel · Jun 30, 09:34 PM · #
The best thing about our “evolving standards of decency” test is its built-in monotonicity. No recidivism here; we’re driving a car without ‘reverse.’
Progress, at least for Eighth Amendment jurisprudence, means never having to say you’re sorry.
— JA · Jun 30, 09:37 PM · #
Personal judgment is inherent, in my view, to either of these two statements:
1. Constitutional:
Shotguns
Non-assault-rifle long guns
Unconstitutional:
Handguns
Assault rifles
2. Constitutional:
Shotguns
Non-assault-rifle long guns
Handguns
Unconstitutional:
Assault rifles
I’ve read the opinions (which doesn’t mean a lot, since I skipped all three years of law school), but I can’t possibly see that one can reason deductively that there is a dividing line established by the constitution of the US that is between handguns and assault rifles, but not just to the left of handguns. It is all too bound up with prudential judgments of the relative importance of personal freedom vs. public safety and so on.
— Jim Manzi · Jun 30, 09:47 PM · #
Excellent point, Mr. Manzi. The majority opinion spends a lot of time making fun of balancing tests and it also spends a lot of time assuring everyone that the right to bear arms won’t allow crazy stuff like automatic weapons. Because we have to balance the interest in freedom versus the interest in public safety.
But while you can’t eliminate judgment from the law entirely, I suspect the opinion might have included a much more coherent and law-based distinction if it weren’t for the need to keep Justice Kennedy on board.
— Adam Greenwood · Jun 30, 10:36 PM · #
Given our common law tradition, I’m willing to grant judges a certain degree of interpretative latitude if they demonstrate sufficient deference to their elected counterparts. Scalia’s decision, I think, strikes the right balance between prudential judgment and deference to the legislature.
I agree that declaring certain weapons off-limits is inherently subjective, but I think the court’s wording – bans on weapons “typically possessed by law-abiding citizens for lawful purposes” are unconstitutional – gives localities quite a bit of flexibility to tailor their approaches to gun control.
Kennedy’s decision, on the other hand, left little opening for legislative intervention. Perhaps both decisions were too reliant on the justices’ subjective determinations, but there are degrees of guilt, and I think Kennedy’s rationale was a lot flimsier than Scalia’s.
— Will · Jun 30, 11:14 PM · #
Will:
I agree on the degrees-of-guilt view (though, I will continue to repeat that my judgment on that question is very non-expert).
I think, speaking from a conservative perspective, that it’s striking that when it comes to the CA Supreme Court overturning a democratic decision against gay marraige, many conservative commentators are up in arms…but when in comes to the SCOTUS overturing a democratic decision by DC’s government that, for this locality, balancing rights and public safety leads them to draw the line at handguns, rather than as SCOTUS does, M16s, well then everything is hunky-dory. Just so it’s clear, I think that DC’s decision is a poor one, but a little recognition of the idea of local communities having pretty broad lattitude in such matters seems to me to an important conservative principle.
— Jim Manzi · Jul 1, 12:03 AM · #
“I think, speaking from a conservative perspective, that it’s striking that when it comes to the CA Supreme Court overturning a democratic decision against gay marriage…”
By “discovering” a “right” which had no legal or historical basis. It has no precedent, no statute, and no operative principle from which to reason, other than vague theoretical reasoning.
“…but when in comes to the SCOTUS overturning a democratic decision by DC’s government that, for this locality, balancing rights and public safety leads them to draw the line at handguns, rather than as SCOTUS does, M16s, well then everything is hunky-dory.”
And it did so because it found that it violated a right enumerated in the Constitution, “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.“ (emphasis mine) The implied dividing line in the ruling, deriving from the language of the Second Amendment, are between those arms appropriate for self-defense and those appropriate for collective or national defense, i.e. those weapons which belong in a military, rather than a civilian context; tanks, missiles, mortars, etc.
“Just so it’s clear, I think that DC’s decision is a poor one, but a little recognition of the idea of local communities having pretty broad latitude in such matters seems to me to an important conservative principle.”
In point of fact, they do. To quote from the ruling (Page 2 of 157; you can find a copy of it at http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf):
****Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s [United States v. Miller] holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.****
The line that they draw, then, is tied to what is a constitutionally protected right, which removes gun bans from local discretion. Now, admittedly, this whole distinction is quite blurry, but I would hold that the ruling is sound legal reasoning, but that the amendment is deficient in how clearly it defines the right. So, instead of lapsing into cynicism and complaining about the Court doing it’s job, perhaps our focus should be on better defining it in the Constitution.
— David Marcoe · Jul 1, 03:09 AM · #
To add:
If we were to parse that Second Amendment under a “collective rights” paradigm, we would arrive at one of two conclusions.
1) That the “collective right” is no right at all, as it is wholly dependent upon how a state chooses to regulate it’s militia.
2) The amendment is reduced to a state of pedantry, by saying that the members of the militia have the right to own the arms they use in service with it. This, then, completely ignores the fact that the amendment speaks of “the people,” a phrase, which used in every other part of the Bill of Rights, refers to those rights possessed by citizens in an individual capacity.
The odd wording of the second amendment has an underlying logic connected with the period in which was drafted. The militia, at the time, was an irregular force, whose volunteers could come and go as they pleased. For the most part, arms and materiel were provided from the private stores of the militia’s members. Thus, the Second Amendment provides protection both for an individual right of self-defense, through a guarantee of arms ownership, and a corporate right of defense, by guaranteeing the sovereign right of state governments to assemble and maintain their own military forces. In turn, this also provides a check against potential oppression by the national government.
— David Marcoe · Jul 1, 03:29 AM · #
David:
As you say, from the majority opinion:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever…
Why does this mean that it is unconstitutional for a jurisdiction to make ownership of shotguns and some long guns legal, and handguns and assault weapons illiegal?
— Jim Manzi · Jul 1, 03:39 AM · #
“Why does this mean that it is unconstitutional for a jurisdiction to make ownership of shotguns and some long guns legal, and handguns and assault weapons illegal?”
In a confined indoor space, I’m going to prefer a compact weapon like a handgun, as it could mean the difference between life and death. In the case of “assault rifles,” the distinction between a weapon of that class and a “hunting rifle,” which may also be semi-automatic weapon (since automatic weapons are still restricted) and have a multi-round magazine, is meaningless. They both fulfill the same basic function. So, in both cases, we establish that they fulfill the “legitimate purpose” of self-defense. Further, those weapons are “commonly available” (that is, they are readily available in the civilian market).
It’s a matter of establishing the facts of the case (in this instance, what the nature of the weapons are), when considering the application of law. I won’t disagree that it is a bit “soft” and ill-defined, but in this case, it is not a deficiency of the ruling, but of the law itself.
— David Marcoe · Jul 1, 03:56 AM · #
David:
OK. I think the question still stands: why is it not a question of personal judgment that handguns can not be banned, but M16s can, under the constitutional right to keep and bear arms?
— Jim Manzi · Jul 1, 06:23 AM · #
“OK. I think the question still stands: why is it not a question of personal judgment that handguns can not be banned, but M16s can, under the constitutional right to keep and bear arms?”
Let me turn it around: How is it not a question of personal judgment when “balancing rights and public safety”? In a legal context, what is “public safety”? What parameters are you trying to set? What are you going to regulate? What is a “reasonable balance”? What compelling reason do you have to limit rights?
In establishing reasonable limits to a right, it is a general principle that you must establish a compelling reason to do so. On an individual level, does the weapon pose a significant danger in its operation? That is, am I at risk of blowing up my neighbor’s house or poisoning half the community with an aerosol toxin? Does the presence of this weapon affect crime rates? Without getting into a complicated breakdown of statistics, they consistently demonstrate that strict gun control laws do not lower crime rates and in many cases increase them, where the inverse for laws that encourage legal gun ownership. And in countries with strict gun control laws, there are lopsided percentages of stabbing deaths. Can you give a compelling reason this weapon would be used in an act of self-defense? If it’s a handgun, it’s compact nature allows me to draw it faster and wield it more easily indoors, which can save precious seconds when defending myself and my family. Can a compelling reasoning be demonstrated that this weapon shouldn’t be used in cases of self-defense? In the case of an assault rifle (a semi-automatic), it is functionally equivalent to a semi-automatic hunting rifle (a weapon already allowed), as it shoots one round with every pull of the trigger. If it’s an automatic weapon, then it’s meant to produce a volume of fire and to take on an opposing group, which firmly places it military realm, rather than in one of simple self-defense. By those same criteria, it would be perfectly reasonable to ban poison gas or a howitzer, because both have such large and destructive effects, that they pose a threat to public safety.
You might answer that a gun is also dangerous in the hands of an untrained or reckless person, but that falls under the category of “reasonable limits,” requiring that people train with a weapon before being licensed for it, in the same way that we do with cars, which are also dangerous in untrained hands.
And how do you define “personal judgment”? It seems that you are looking for criteria that give algorithmic precision. In many areas of the law, this is not the case, such as copyright and fair use, or probable cause and exigent circumstances that lead an officer to enter a premises without a warrant.
It also seems that your perspective is a bit backwards. It is not burden citizen to demonstrate that his rights should be protected. His person and premises remain his sanctum until a warrant is issued or there is compelling reason to enter. He is innocent until proven guilty in a court of law. He has protections against self-incrimination and so on. Rather, it is the burden of the state to demonstrate a compelling reason to limit or breach a right, such as the when demonstrating that “yelling fire in a crowded theater” is not a proper use of free speech.
Now, enumerated in our Constitution is a right to keep arms for the purpose of self-defense. It is something easily supported by both the language and history of the Second Amendment. Can it be demonstrated, then, that banning certain types of weapons is necessary for public safety? In the case of something like an atom bomb, that’s a big duh, but in the case of a handgun, which shoots bullets like any other gun, what reason can be given? It doesn’t produce a volume a fire like a machinegun. It doesn’t fire an excessively large caliber of round that will go through ten houses before it stops. It’s not designed to take out armored vehicles. And statistics show that banning it doesn’t lower crime rates. If you can’t demonstrate how it significantly endangers public safety, then it is legitimate for the use of self-defense, and protected by the Second Amendment.
— David Marcoe · Jul 1, 07:43 AM · #
David:
Thanks, the clarity of the response is extremely helpful.
So isn’t the core of the argument for handguns that the SCOTUS can better read the social science literature on the causal relationship between handguns and crime rates than the elected officials of DC? This is precisely what I mean by personal judgment, and the kind of issue on which I think courts should defer to elected officials.
Further, when considering higher grade weapons than handguns, it seems to me that even if one grants that a legitimate purpose of the 2nd Amendment is self-defense, I assume that you wouldn’t dispute that another intended purpose was to arm the citizenry so that it would be difficult for a tyrant to use a standing army to impose his will. If so, wouldn’t assault rifles, shoulder-launched anti-tank and anti-aircraft missiles, communications equipment with strong crypto and so forth be exactly the kinds of weapons that the founders would have intended for legal protection? Militarily speaking, it’s now been demonstrated pretty conclusively that a sufficiently-determined population can resist occupation fairly effectively with just such weapons. Unless one advocates constitutional protection for such weapons, it seems to me that he is simply drawing the line between public safety and the exercise of a core purpose (and in my view a more core purpose) of the Amendment in a different place.
— Jim Manzi · Jul 1, 12:47 PM · #
Crook has an editorial in yesterday’s FT echoing your point, and actually making the alarming observation that because the justices have largely become proxies for political viepoints, really Justice Kennedy has become a frighteningly powerful one man court. I think that that’s about right.
— Sanjay · Jul 1, 12:52 PM · #
“Further, when considering higher grade weapons than handguns, it seems to me that even if one grants that a legitimate purpose of the 2nd Amendment is self-defense, I assume that you wouldn’t dispute that another intended purpose was to arm the citizenry so that it would be difficult for a tyrant to use a standing army to impose his will.”
There was much written by the Founding generation on that very purpose. Of course, it is also a logical extension of the right of self-defense, particularly in a Lockean framework.
“If so, wouldn’t assault rifles, shoulder-launched anti-tank and anti-aircraft missiles, communications equipment with strong crypto and so forth be exactly the kinds of weapons that the founders would have intended for legal protection?”
Well, at the time that the Amendment was written, none of that equipment existed and the divide between military and civilian arms, save for artillery, was virtually non-existent. The guns used on the battlefield were the same at those used by the homesteader. More on that below.
“Militarily speaking, it’s now been demonstrated pretty conclusively that a sufficiently-determined population can resist occupation fairly effectively with just such weapons. Unless one advocates constitutional protection for such weapons, it seems to me that he is simply drawing the line between public safety and the exercise of a core purpose (and in my view a more core purpose) of the Amendment in a different place.”
But the Second Amendment was two-pronged. It protects both an individual right to bare arms and the sovereign right of state governments to maintain “a well regulated militia,” whose volunteers would be drawn from the general populace. One might reason that this then acted as an umbrella of protection for such military arms to be possessed by the states, without creating an impracticably broad protection of individual ownership.
In either case, the sheer number of citizens owning arms offsets the advantage of military weaponry. The idea, possibly, was not so much to create a conquering army of citizens, but to make pacification and oppression impracticable through attrition, a lesson learned during the Revolution. How this gels with our modern military and legal framework is a different subject altogether, but again, any such incongruities are a matter of the laws themselves and we already have channels to amend those.
“Crook has an editorial in yesterday’s FT echoing your point, and actually making the alarming observation that because the justices have largely become proxies for political viewpoints, really Justice Kennedy has become a frighteningly powerful one man court. I think that that’s about right.”
If you bothered to actually read about the judicial philosophy of those on the court, you might discover that it an absurd notion, at least in the case of the more conservative justices. Scalia, Alito, Robertson, and Thomas are all originalists, meaning that they believe in the literal and plain reading of the clauses of the Constitution, at the times of their ratification. They themselves rarely, if ever, speak of their own political views, but from what one can decipher, they aren’t just simple “proxies for political viewpoints,” particularly since both Scalia and Thomas have ruled several times through the years in ways which favored the left side of the political aisle.
— David Marcoe · Jul 1, 01:40 PM · #
Justice Kennedy has become a frighteningly powerful one man court.
Was it any less frightening when Sandra played the role of the one (wo)man court? Undue burden, anybody?
David, you write: “It protects both an individual right to bare arms [sic] and the sovereign right of state governments to maintain ‘a well regulated militia’…”
Neither the opinion nor the amendment say anything about the sovereign right of state governments to do anything, except, in the former, when giving an example of what the 2nd Amendment doesn’t do. On the specific issue of the “well-regulated militia” prologue, the opinion spends much time distinguishing between prefatory and operative clauses. The court held the words of the latter “guarantee the individual right to possess and carry weapons in case of confrontation.” (p.27) The words of the former have no substantive effect at all; they are there for clarification.
The majority opinion still fleshes out the prefatory clause, of course, but it establishes a meaning precisely opposite of what you wrote (referring to “the ideal of a citizen’s militia”, defining “well-regulated” as just “ordered, disciplined”, and using “state” in the most expansive sense, as “polity” or “community”).
So far, I think, we’re all on the same page. The Second Amendment clearly grants an individual right to keep and bear arms for self-defense, a pre-existing right directly derived from the natural right of self-preservation. Where the whole thing gets iffy is the majority’s application of United States v. Miller to the facts of Heller — i.e., to the statute in question.
Miller held that a sawed-off shotgun was not a protected instrument under the 2nd Amendment; protection extends only to weapons which “have some reasonable relationship to the preservation or efficiency of a well-regulated militia.” As the opinion admits, at first reading this suggests that only weapons useful in warfare are protected. But this would be a “startling” conclusion since that would mean machine guns are protected and the National Firearms Act is unconstitutional.
But where does it say the practical consequence of a Right, guaranteed by the Constitution, may not, cannot, must not be startling? For instance, I would say it’s pretty startling that the First Amendment protects the inarticulate grunt and growl that is flag-burning. And yet, flag-burning is protected speech.
Also, the most popular individual firearm on the planet is the AK-47. Doesn’t that fit pretty well under the category “in common use at the time”, or as the type of weapon a normal able-bodied man would show up with when expected to appear bearing arms for the citizen militia?
— JA · Jul 1, 03:58 PM · #
“Neither the opinion nor the amendment say anything about the sovereign right of state governments to do anything, except, in the former, when giving an example of what the 2nd Amendment doesn’t do…The words of the former have no substantive effect at all; they are there for clarification.”
They do a great deal. They confer recognition. In conjunction with the Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”—forms a protection for that sovereign right of a state. So, yes, I do concede the prefatory clause does not accomplish that on its own.
“The majority opinion still fleshes out the prefatory clause, of course, but it establishes a meaning precisely opposite of what you wrote (referring to “the ideal of a citizen’s militia”, defining ‘well-regulated’ as just ‘ordered, disciplined’, and using ‘state’ in the most expansive sense, as ‘polity’ or ‘community’).”
No, it isn’t the “exact opposite.” It’s broader than I what wrote. Thus, what I said is still true, particularly in conjunction with the Tenth Amendment. And a well-regulated militia, i.e.“ordered and disciplined,” is still drawn from the general populace. One would hope that it was ordered and disciplined, otherwise it would never be able to do its job…
“Miller held that a sawed-off shotgun was not a protected instrument under the 2nd Amendment; protection extends only to weapons which “have some reasonable relationship to the preservation or efficiency of a well-regulated militia.” As the opinion admits, at first reading this suggests that only weapons useful in warfare are protected. But this would be a ‘startling’ conclusion since that would mean machine guns are protected and the National Firearms Act is unconstitutional.”
Again, a bifurcated interpretation, where the Second Amendment recognizes both the right to bare arms in an individual capacity of self-defense and the right of the states (in conjunction with the 10th) to maintain militia for the corporate right of defense, then military arms are seen in their proper context.
“But where does it say the practical consequence of a Right, guaranteed by the Constitution, may not, cannot, must not be startling? For instance, I would say it’s pretty startling that the First Amendment protects the inarticulate grunt and growl that is flag-burning. And yet, flag-burning is protected speech.”
In a pertinent comparison, but it’s still a different amendment, meaning the scope of its protections may not be the same, so we don’t want to stretch the analogous relationship too far, particularly since there is a prefatory clause contained with in the structure of the Second Amendment that is not in the First.
“Also, the most popular individual firearm on the planet is the AK-47. Doesn’t that fit pretty well under the category ‘in common use at the time’, or as the type of weapon a normal able-bodied man would show up with when expected to appear bearing arms for the citizen militia?”
I’m not sure what your objection is, as the Kalashnikov family arms is quite readily available here. In fact, I could go down to a local pawn shop and buy one quite legally in my state, with the only requirement being that I have a gun license, which requires that I take safety classes. The only restriction on the weapon itself is that it not be fully automatic.
— David Marcoe · Jul 1, 08:53 PM · #
Correction: It does a great deal. It confers recognition.
— David Marcoe · Jul 1, 08:56 PM · #