March 17, 2007

Fisking Erwin

(After I had finished the bulk of this post I took a break & noticed that The Smallest Minority had seen fit to fisk Mr. Chemerinsky's article as well. By all means go read his post.)

A law professor of some note has written an article for the Washington Post concerning the recent decision by the u.S. Court of Appeals for the D.C. Circuit referred to as Parker v. D.C. It isn’t very long & as such is short on citations or other elaborations on the premises put forth but it seems to me that it deserves a fisking all the same.

"A Well-Regulated Right to Bear Arms by Erwin Chemerinsky"

"In striking down the District of Columbia's handgun ban last week, a federal appeals court raised the crucial constitutional question: What should be the degree of judicial deference to government regulation of firearms? The decision by the U.S. Court of Appeals for the D.C. Circuit interpreted the Second Amendment as bestowing on individuals a right to have guns. But even if this reasoning is accepted, and it is very much disputed, the Court of Appeals still should have upheld the law as being a reasonable way of achieving the government's legitimate goal of decreasing gun violence."

I would hope that Mr. Chemerinsky simply does not realize the scope of the gun control laws in D.C. A complete ban on the possession of handguns as well as a prohibition on having assembled & ready to use long guns in your own home is not a "reasonable" let alone effective means of boosting the public safety. In fact even possessing ammunition or ammunition components (empty cases, bullets, primers, etc...) is an arrestable offense if you don't have a valid registration for a firearm that uses those components or ammunition. Despite any legislative intent the effect was to create an environment where folks with no intent to harm anyone else unjustifiably were either criminals for possessing proscribed items or possessing items in a proscribed manner or they were rendered defenseless by law in their own homes. The people who did intend to cause harm were not effected by these laws & in some cases were emboldened by them (as there was a lesser chance that they’d be met with force during a home invasion).

I should also point out that despite having very strict gun control laws since 1977 they haven't seemed to reduce D.C.'s crime problem.

As for the underlying premise being disputed I have not seen any strong arguments for a differing interpretation than the one expressed in Parker or Miller (although I have seen arguments which hold that both of those decisions respectively did not go far enough to acknowledge the scope of the right enumerated by the 2nd amendment).
"There is a major debate among scholars and judges involving two competing views of the Second Amendment. One approach, adopted by the Supreme Court in 1939 and by most federal courts of appeals, sees the Second Amendment as preventing Congress from regulating firearms in a manner that would keep states from adequately protecting themselves."

That is incorrect. The SCOTUS decision from 1939 is u.S. v. Miller & I've written about it before. All the Miller decision did was to remand the case back to the circuit court on the grounds that it was beneath judicial notice that a shotgun with a barrel of less than 18 inches in length had any martial value. It implied that if it could be shown that a short barreled shotgun had martial value then its private ownership would fall under the protection of the second amendment.

"This 'collective rights' approach rejects the idea that the Second Amendment bestows on individuals a right to have guns. The alternative view, adopted by the D.C. Circuit on Friday, sees the Second Amendment as creating a right for individuals to have firearms."

Here is where I must abandon any pretense of brevity.

The "collective rights" view did not appear in Miller. It was argued by the government but the court did not accept or condone such a view. If such a view was taken by Miller then it would have remanded based on a standing issue rather than getting into the merits of the argument. But it's perhaps helpful to look at where the "collective rights" argument came from.

Let's go back to 1905 & a case decided by the Kansas Supreme Court called City Of Salina v. Blaksley. In this decision the Kansas court reasons that the state's constitutional acknowledgment of the right to arms is a collective one & an individual cannot use its protection. It briefly touches on the federal constitution & concludes the same.

Now we fast forward to 1942 & a decision called Cases v. u.S.. It was a Puerto Rico case decided by the 1rst Circuit Court of Appeals. A man was convicted of violating the Federal Firearms Act (which has since been absorbed into the Gun Control Act of 1968) by being a felon in possession of a firearm & ammunition. The court oddly enough cites Miller but then explains why it ignores it. Here's the part of the decision that deals with the 2nd amendment challenge to the Federal Firearms Act:

"The Federal Firearms Act undoubtedly curtails to some extent
the right of individuals to keep and bear arms but it does not
follow from this as a necessary consequence that it is bad under
the Second Amendment which reads "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.'

The right to keep and bear arms is not a right conferred upon
the people by the federal constitution. Whatever rights in this
respect the people may have depend upon local legislation; the only
function of the Second Amendment being to prevent the federal
government and the federal government only from infringing that
right. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed.
588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed.
615. But the Supreme Court in a dictum in Robertson v. Baldwin,
165 U.S. 275, 282, 17 S. Ct. 326, 41 L.Ed. 715, indicated that the
limitation imposed upon the federal government by the Second
Amendment was not absolute and this dictum received the sanction of
the court in the recent case of United States v. Miller, 307 U.S.
174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.

In the case last cited the Supreme Court, after discussing the
history of militia organizations in the United States, upheld
the validity under the Second Amendment of the National Firearms
Act of June 26, 1934, 48 Stat. 1236, in so far as it imposed
limitations upon the use of a shotgun having a barrel less than
eighteen inches long. It stated the reason for its result on page
178 of the opinion in 307 U.S., on page 818 of 59 S.Ct., 83 L.Ed.
1206, as follows: 'In the absence of any evidence tending to show
that possession or use of a 'shotgun having a barrel of less than
eighteen inches in length' at this time has some reasonable re-
lationship to the preservation or efficiency of a well regulated
militia, we cannot say that the Second Amendment guarantee's the
right to keep and bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of the ordinary
military equipment or that its use could contribute to the common

Apparently, then, under the Second Amendment, the federal
government can limit the keeping and bearing of arms by a single
individual as well as by a group of individuals, but it cannot
prohibit the possession or use of any weapon which has any
reasonable relationship to the preservation or efficiency of a well
regulated militia. However, we do not feet that the Supreme Court
in this case was attempting to formulate a general rule applicable
to all cases. The rule which it laid down was adequate to dispose
of the case before it and that we think was as far as the Supreme
Court intended to go. At any rate the rule of the Miller case, if
intended to be comprehensive and complete would seem to be already
outdated, in spite of the fact that it was formulated only three
and a half years ago, because of the well known fact that in the so
called 'Commando Units' some sort of military use seems to have
been found for almost any modern lethal weapon. In view of this,
if the rule of the Miller case is general and complete, the result
would follow that, under present day conditions, the federal
government would be empowered only to regulate the possession or
use of weapons such as a flintlock musket or a matchlock harquebus.
But to hold that the Second Amendment limits the federal government
to regulations concerning only weapons which can be classed as
antiques or curiosities, -almost any other might bear some
reasonable relationship to the preservation or efficiency of a well
regulated militia unit of the present day,-is in effect to hold
that the limitation of the Second Amendment is absolute. Another
objection to the rule of the Miller case as a full and general
statement is that according to it Congress would be prevented by
the Second Amendment from regulating the possession or use by
private persons not present or prospective members of any military
unit, of distinctly military arms, such as machine guns, trench
mortars, anti-tank or anti-aircraft guns, even though under the
circumstances surrounding such possession or use it would be
inconceivable that a private person could have any legitimate
reason for having such a weapon. It seems to us unlikely that the
framers of the Amendment intended any such result. Considering the
many variable factors bearing upon the question it seems to us
impossible to formulate any general test by which to determine the
limits imposed by the Second Amendment but that each case under it,
like cases under the due process clause, must be decided on its own
facts and the line between what is and what is not a valid federal
restriction pricked out by decided cases falling on one side or the
other of the line."

The court in Cases correctly concludes that Miller would endanger almost any federal firearms regulation. So they rationalize that Miller was not meant to be controlling. In other words they ignored the precedent set down by a higher court because they didn't care for the results it would reach.

There's another case from 1942 that was decided a few weeks before Cases called u.S. v. Tot. A convicted felon challenged his conviction under the Federal Firearms Act as being contrary to the 2nd amendment (among other grounds). The 3rd Circuit Court of Appeals affirmed the conviction & uses a "collective rights" argument to negate the 2nd amendment challenge:

"The Second Amendment to the Constitution of the United States provides: '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.'

The appellant's contention is that if the statute under which this prosecution was brought is to be applied to a weapon of the type he had in his possession, then the statute violates the Second Amendment.

It is abundantly clear both from the discussions of this amendment contemporaneous with its proposal and adoption and those of learned writers since[13] that this amendment, unlike those providing for protection of free speech and freedom of religion, was not adopted with individual rights in mind, but as a protection for the States in the maintenance of their militia organizations against possible encroachments by the federal power.[14] The experiences in England under James II of an armed royal force quartered upon a defenseless citizenry[15] was fresh in the minds of the Colonists. They wanted no repetition of that experience in their newly formed government. The almost uniform course of decision in this country,[16] where provisions similar in language are found in many of the State Constitutions, bears out this concept of the constitutional guarantee. A notable instance is the refusal to extend its application to weapons thought incapable of military use.

The contention of the appellant in this case could, we think, be denied without more under the authority of United States v. Miller, 1939, 307 U.S. 174, 59 S. Ct. 816, 83 L.Ed. 1206. This was a prosecution under the National Firearms Act of 1934 and the weapon, the possession of which had occasioned the prosecution of the accused, was a shotgun of less than 18 inch barrel. The Court said that in the absence of evidence tending to show that possession of such a gun at the time has some reasonable relationship to the preservation or efficiency of a well regulated militia, it could not be said that the Second Amendment guarantees the right to keep such an instrument. The appellant here having failed to show such a relationship, the same thing may be said as applied to the pistol found in his possession. It is not material on this point that the 1934 statute was bottomed on the taxing power while the statute in question here was based on a regulation of interstate commerce.

But, further, the same result is definitely indicated on a broader ground and on this we should prefer to rest the matter. Weapon bearing was never treated as anything like an absolute right by the common law. It was regulated by statute as to time and place as far back as the Statute of Northampton in 1328 and on many occasions since.[17] The decisions under the State Constitutions show the upholding of regulations prohibiting the carrying of concealed weapons, prohibiting persons from going armed in certain public places and other restrictions, in the nature of police regulations, but which do not go so far as substantially to interfere with the public interest protected by the constitutional mandates.[18] The Federal statute here involved is one of that general type. One could hardly argue seriously that a limitation upon the privilege of possessing weapons was unconstitutional when applied to a mental patient of the maniac type. The same would be true if the possessor were a child of immature years. In the situation at bar Congress has prohibited the receipt of weapons from interstate transactions by persons who have previously, by due process of law, been shown to be aggressors against society.[19] Such a classification is entirely reasonable and does not (p.267)infringe upon the preservation of the well regulated militia protected by the Second Amendment." (links in original)

Aside from being wrongly reasoned it could be argued that the paragraph in which the court makes its "collective rights" argument is dicta & therefore non binding. But in any event the 3rd Circuit did not state or imply that Miller supported the "collective rights" view of the 2nd amendment.

Those 3 cases are arguably the start of the "collective rights" idea in American jurisprudence & the latter two are often cited as showing that Miller took up the "collective rights" argument. Those decisions that rely on Tot & Cases to uphold Miller as a "collective rights" precedent are fatally flawed because Tot & Cases do no such thing. But that is where this mess originated.

Getting back to Mr. Chemerinsky:

"Each approach is consistent with the text of the Second Amendment, and each is supported by strong historical arguments about the original meaning of the provision. The Second Amendment says: '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.' Those who take the collective rights approach focus on the initial language of the provision, while those who take the individual rights approach focus on the latter language."

No; each approach is not consistent with the text. The "collective rights" approach ignores the operative clause of the amendment (the second half) & focuses solely on the explanatory clause. I refer you to Prof. Volokh's The Commonplace Second Amendment for a more in depth discussion of the construction of the second amendment. & I have yet to see any strong historical arguments for the "collective rights" theory. I have seen fairly strong arguments that it is in fact an individual Right & a few of those arguments have been made by the Supreme Court.

"Each side of the debate marshals impressive historical arguments about what 'militia' and 'keep and bear arms' meant in the late 18th century. In the past few years, two other federal courts of appeals exhaustively reviewed this history, and one determined that the Framers intended the individual rights approach, while the other read history as supporting the collective rights approach."

Mr. Chemerinsky is referring to u.S. v. Emerson from the 5th Circuit (which stated an individual Rights view) & Silveira v. Lockyer from the 9th Circuit (which asserted the "collective rights" argument). I should point out that Silveira was denied en banc review but the dissents from Kozinski & Kleinfeld are especially worth reading. Here's the .pdf of the denial of en banc review in Silveira.

It should also be noted that the majority opinion in Silveira relied in part on the work of Michael Bellesiles. Bellesiles has since been discredited as a historian (scroll down to the section entitled "Arming America") & the 9th Circuit removed citations to his work from their decision. Clayton Cramer has two posts which also should be considered when any claims of the 9th Circuit making an "exhaustive" exploration into the 2nd amendment are presented. One is Judge Reinhardt's Incredibly Ignorant Decision About the Second Amendment & the other is The Ninth Circus Court of Appeals Once Again Demonstrates Its Scholarship.

"The assumption in this debate, and one that the D.C. Circuit followed Friday, is that gun control laws are unconstitutional if the individual rights approach is followed. This assumption, though, has no basis in constitutional law. No rights are absolute. Even the First Amendment, which is written in the seemingly absolute language that Congress shall make 'no law' abridging freedom of speech or religion, allows government regulation."

I find it almost funny that despite the comparisons made to the 1rst amendment when it comes to government regulation that very few if any gun control advocates will also agree to make things equal by granting the 2nd amendment the same level of judicial scrutiny afforded to the 1rst.

Even accepting the idea that no Right is absolute that does not mean that any & all government regulation of a right is permissible. Again using 1rst amendment examples the regulation of speech by government is mainly limited to laws providing for punishment for a harmful or potentially (& likely) harmful act. Whereas most gun control laws are of the prior restraint variety which would be shunned by most courts as an undue intrusion upon a protected exercise of a Right.

To say that a Right is not absolute is a far cry from saying that it has merely the status of a privilege when the government sets its mind to regulate or outright prohibit it.

"Therefore, under the individual rights approach, there still is the question of what types of government regulations are appropriate."

Yes; there is that. What is most important though is defining the scope of the Right & determining the proper level of judicial scrutiny to be applied to it. Then with those two things at least roughly established it would be easier to determine on a case by case basis which gun control laws would violate the constitution.

"For 70 years the Supreme Court has distinguished among constitutional claims in deciding how closely to scrutinize laws and how much to defer to legislatures. In instances where there is reason to distrust the government, such as for laws discriminating on the basis of race, 'strict scrutiny' is used and the government can prevail only if its action is necessary to achieve a compelling purpose.
But where there is little reason to doubt the legislatures' choices, courts give great deference to the legislatures and uphold laws so long as they are reasonably related to a legitimate government purpose. For example, discrimination that is based on characteristics such as age, disability and sexual orientation need to meet only this more relaxed standard. Even rights enumerated in the Constitution, such as property rights, generally receive only this relaxed level of judicial review. For this reason, for 70 years, government regulation of the economy to protect employees and consumers has been upheld in the face of claims that it unduly restricts property rights."

& I would most heartily argue that the courts have been far too lenient in giving deference to the legislative & executive branches where enumerated Rights are concerned. But that's another argument.

"In other words, even if the D.C. Circuit is right in holding that the Second Amendment creates individual rights, that does not answer the question as to the level of scrutiny to be used in evaluating gun control laws. I believe that there is a strong argument that the regulation of guns should be treated the same as other regulation of property under modern constitutional law: The regulation should be allowed so long as it is rationally related to achieving a legitimate government purpose."

The use of the word "creates" in reference to a constitutionally enumerated Right always bugs me. The idea is that the Rights contained within the constitution of a personal nature pre-existed said document. Saying Rights were "created" gives far too much authority to the government, in that anything government created can be taken away by the government. But that's a broader topic than I wish to address presently.

Achieving a legitimate government purpose would imply that the standard of scrutiny Mr. Chemerinsky favors is one of rational basis review. He seems to rest this on the idea that firearms should be treated as other property has been treated in American jurisprudence. There's a strong argument against that.

A firearm is not like a chair or a desk or an umbrella or even a piece of land. It is much more akin to a printing press or the modern equivalent (i.e. word processor) for constitutional purposes. It has a function beyond the sum of its parts. Just as with a printing press (or word processor) it may be used for good or bad ends, but the good ends to which they both may be used far outweigh the bad ends which they often are a party to. In the case of the printing press (or word processor) it may be used to further political discourse or legal arguments or as a last resort to warn others of impending tyranny by a foreign or domestic government. With firearms they may be used for recreation, gathering of sustenance or as a last resort as a means to forcibly resist acts of a tyrannical government, be it foreign or domestic. Whatever level of treatment afforded to other property by the courts it would be disingenuous to apply anything less than the highest standard to arms & their accouterments because of the significance of their use both for the individual & for the body politic.

"Under this standard, there is no doubt that the D.C. gun law is constitutional. The city's government was pursuing the legitimate goal of decreasing gun violence, and its means were certainly reasonable."

Under a rational basis review the D.C. gun ban may have been acceptable by the courts, but considering the scope of the ban I think it'd not be as foregone a conclusion as Mr. Chemerinsky does. While decreasing violence may be a legitimate goal of government I would not view rendering the inhabitants of an entire city effectively defenseless as a reasonable means of reaching that goal.

Though if I remember my case law correctly the government does not need to prove that its means were effective towards a desired end, just that they had those ends in mind.

However under a stricter standard I've little doubt that the D.C. gun ban would have failed. Intermediate scrutiny or strict scrutiny would have yielded the same results reached in Parker v. D.C. (here's the .pdf of the decision) so I don't think it's unreasonable to conclude that the D.C. Circuit felt rational basis was too lax a standard to use on a constitutionally enumerated right.

"The Supreme Court will probably review the D.C. Circuit decision. Whether the court takes the individual or the collective rights approach, it should uphold the D.C. law and make clear that courts will defer to legislatures in their regulation of firearms."

What I fear is just that: SCOTUS will take an individual Rights approach but still uphold the D.C. gun prohibitions. In effect that will gut any pragmatic application of the 2nd amendment.

But the courts should not defer to the legislatures in their regulation of firearms any more than they defer to them in matters of political speech. Legislatures & parliaments & before them kings & emperors have always sought to limit the availability of arms to their subjects. It is & has always been a compelling government interest to possess more force than people you wish to control. This is the very heart of the matter; whether the government has the monopoly of force or whether the people have an effective means of resisting government.

Mr. Chemerinsky is currently residing in the state of my birth. He is in one of the more liberal/left leaning parts of the state & as such is probably not as exposed to the use or possession of firearms by people with no ill intent as he would be in other parts of the state. No matter; Mr. Chemerinsky is (or should be) well versed enough in the theories behind gun control & the Right to arms that he can make an intelligent decision concerning whose control arms should be in. It seems he has landed firmly on the side of government & against the individual. His reasoning is scant (granted articles such as he wrote are space limited) & I do not agree with the logic he seems to use to arrive at his conclusions.

I have some issues with the decision in Parker v. D.C. but they are of a very different nature than Mr. Chemerinsky's contentions. Parker did not go far enough in acknowledging the scope of the Right enumerated in the 2nd amendment, but it certainly did not over step its bounds in declaring that D.C.'s de facto ban on self defense in the home was constitutionally repugnant.

I do wonder; if Mr. Chemerinksy got his wish & the D.C. gun ban was upheld even in spite of the 2nd amendment acknowledging an individual right, then what exactly would be the purpose of having such an article without any apparent teeth? If a complete ban on possession in your own home of handguns coupled with a ban on possessing in your own home assembled long guns does not violate an individual Right enumerated in the 2nd amendment then what would?

Mr. Chemerinsky seems to reflexively cling to the notion that the legislature should have great & seemingly absolute deference in regulating & even banning arms as it sees fit. No matter what level of review the courts see fit to grant the matter any encroachment on my Right to arms will fall under the strictest scrutiny I am capable of. As such Mr. Chemerinsky's arguments do not impress.

(updated 03/17/07 23:20 MST - added a link to Tot which I neglected when originally published)

Posted by Publicola at March 17, 2007 04:38 AM | TrackBack