District of Columbia vs Heller: The Truth Will Out

Okay, I may be wrong about which case most clearly demonstrates the idea that Supreme Court decisions, when a major social issue is at stake, for all their protestations, simply reflect the prejudices of the justices. 

That is, the justices have a gut reaction which is, "We've got to keep the rabble down," and then they set about contorting themselves to squeeze through the eye of a needle to get to the conclusion you knew all along they were trying to get to.

I thought the most obvious example was the Bong Hits for Jesus decision,  but my own offspring have convinced me this is a case which is not as clean an example as I have asserted. The problem with Bong Hits is that Chief Justice Roberts was able to slip and slide, insisting the case was not about drugs or free speech but it was about the issue of whether or not a government employee can be held liable for her actions when she is trying to exercise her authority, as she sees her responsibility demands, as part of her job as a public employee.

The student was suing the principal for infringing  his right to free speech, i.e. by tearing down his poster and suspending him from school. After seeing their arguments about the poster undermining the schools anti drug policies go down in flames, after dispensing with the issue of the student not being on school property (after all, students are still under school authority on field trips) the court comes round to saying well, it wasn't really about any of that; it's about protecting public servants from the consequences of their actions when they are bringing the heavy wood to bear on those over whom they are supposed to be exerting control.

So there's some sneak around the criticism of being a court which simply always sides with those in power; you can say they were simply trying to protect those in power from the fear of being sued every time they discipline a child.

But in the case of District of Columbia vs. Heller you see Justice Scalia's capacity for verbal contortion which should make him the envy of Circe De Soleil. The machinations of verbosity here are something to behold.

He makes that famous line, "It depends what the definition of is, is," seem very reasonable.

Scalia's problem, and the problem for every right to gun fanatic who says the right for individuals to own and use guns was handed down engraved in stone tablets from  the Mount, and reaffirmed in black and white in the Second Amendment of the Constitution, is that very Second Amendment is about as clear as anything in writing ever gets, especially anything writtne in the eighteenth century.  The Amendment begins with an explanatory clause, "The right to bear arms being necessary to the maintenance of a militia," and then goes on to what they call the "Operative clause," the right to bear arms shall not be infringed." 


So the right to own a gun, to bear arms, that is one can only imagine, to keep a gun in your house, has to do with the importance to society and to the state of sustaining a group of armed men called a militia. 

Watch Scalia twist and turn and try to get to the point where he says the right to bear arms derives from the need for individual members of a militia to keep their guns at home, but and this is the big but, the right also derives from other imperatives, not mentioned in the Amendment but implied somehow, somewhere else in the Constitution or found in a careful and learned analysis of history to show that this is what these eighteenth century gentlemen had in mind when they used phrases like the right to bear arms. He's gonna get there, somehow, and it's a pretty lame and pathetic dance he does.

    Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.⁶

^{GOT THAT?  SEE THE ONLY RIGHTS IN THE CONSTITUTION ARE INDIVIDUAL RIGHTS? SO THE FACT THESE INDIVIDUALS DERIVE THEIR RIGHT TO OWN GUNS COMES FROM THE FACT THEY ARE IN A STATE MILITIA HAS NOTHING TO DO WITH ANYTHING.}

 

    What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990) :

“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment , and by the First and Second Amendment s, and to whom rights and powers are reserved in the Ninth and Tenth Amendment s, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

GOT THAT?  CONVINCED YET?

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”

SO NOW WE DON'T LIKE THE FOUNDERS SO MUCH. THEY LEAVE US ALL CONFUSED.

    We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

THERE WE START WITH THE "STRONG PRESUMPTION" BECAUSE WHY? BECAUSE WE WANT TO PRESUME THIS RIGHT DOES NOT JUST APPLY TO THE SUBSET OF THE POPULATION WHO ARE IN THE MILITIA BECAUSE IF WE DON'T PRESUME THIS OUR WHOLE ARGUMENT FALLS APART.

AND NOW WE GOT TO TRY TO REALLY CONFUSE A PRETTY OBVIOUS PHRASE: TO KEEP AND BEAR ARMS. CAN YOU REALLY NOT GET THIS?

    b. “Keep and bear Arms.” We move now from the holder of the right—“the people”—to the substance of the right: “to keep and bear Arms.”

    Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

HEY WE NEEDED A LEGAL DICTIONARY TO UNDERSTAND WHAT "ARMS" MEANS. IS THAT DEPENDING ON WHAT IS MEANS TOO?

    The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added).

OH, AND LET'S SET UP A PAPER TIGER SO WE CAN TRY TO  MAKE OUR OPPONENTS LOOK SILLY.

    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

HEY, NOBODY'S WORRIED ABOUT 18TH CENTURY MUSKETS. DC VS HELLER WAS NOT ABOUT MUSKETS. THE DC COPS ARE WORRIED ABOUT GETTING SHOT WITH MORE UP TO DATE GUNS, OR "ARMS." LIKE AK47'S, UZI'S AND OTHER LETHAL STUFF.

    We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

    

LET US NOW OBSFUCATE, BIG TIME:

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998) , in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

AND NOW A LEAP OF FAITH: WE REFER TO "HISTORY" AND SOME UN CITED, MYSTERIOUS MEANING OF TO KEEP AND BEAR ARMS AS MEANING " OWNING GUNS UNRELATED TO MEMBERSHIP IN A MILITIA:

    From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. 

Now, I realize this may all seem tedious. But that's the game. Justice Scalia thinks if he can make his argument tedious enough, if he can obsfucate enough, you'll just cave.

Thing is, he's a snake oil salesman, and the price of liberty is eternal vigilance. If you swallow his opinion, well then, you're no patriot. You've given up doing the hard thing, which is not to bear arms in thsi case, and charge up the hill. The hard thing here demanded of the citizen is to wade all through this and say, in the end. The guy is full of bull and the Second Amendment is not what Rush Limbaugh and Glenn Beck and Antonin Scalia wish it would be but it is was it is. 

That is, if you know what is means.

Bong Hits For Jesus

With the Supreme Court poised to nullify the Health Care Law, we face the greatest thwarting of one branch by another since the New Deal.

In last Sunday's New York Times, we were reassured it's not a given the Court will act to undo the law, because predicting how justices will vote is "Dicey."

I beg to differ. 

It is not a dicey matter to predict how Fox News will react to anything President Obama says, even if it's, "God Bless the United States of America."


There is a very simple lens through which one can peer at the current Supreme Court and this lens has the power of a crystal ball: Look through it and you can know exactly how four of the justices (Scalia/Thomas/Alito/Roberts) will vote on any given issue with social content: These apocalyptic four horsemen will always vote for the powerful over the powerless, for money over the poor and, had they been voting in another era, for the slaveowner over the slave. There is no doubt these four would have voted Dred Scott could not sue in the Supreme Court because, as a slave, being the property of the master, he had no standing to sue.

The Constitution, written in the eighteenth century by men who not only owned slaves but enthusiastically kept them in bondage, was written before the human voice could be amplified, before radio or television could given the stage to one voice and, effectively deny it to others, before big money had become institutionalized in our body politic.

And yet, Scalia and Thomas and Alito and Roberts call themselves "Originalists," men who look only to this sacred text for all the answers, because otherwise, they might be in danger of thinking for themselves and creating law rather than simply applying it.

The judge who sentences a man for selling marijuana, even thought the judge does not believe the sale of marijuana should be illegal, is apply law rather than creating it. The judge who says a corporation is entitled to the protection of the First Amendment just as an individual human being, is creating new law.

But the clearest recent insight about this Court, at least for my money is contained in the justices's opinions on Morse vs Frederick, or the Bong Hits for Jesus case.

It is here the prejudices of the justices are at their most naked, despite their customary attempts to clothe them in arguments about tangential issues.

Justice Roberts spends much time denying the argument the student (Frederick) was unjustly treated by the principal who ran across the street and tore down his sign, "Bong Hits for Jesus" because the student had taken pains to leave school grounds and set up camp outside of the school's territory, making him free to express an opinion beyond the control of the school administration. 

Much time is spent by the justices writing for the majority explaining why students are not entitled to free speech the way adults are entitled to free speech, at least as long as the students are enrolled in public schools, paid for by the government. Private schools, presumably can expell students whenever they want and for whatever reason. 


But the real truth outs in Justice Thomas's opinion. What really disturbs Thomas is the student's "impertinence."  Being an originalist, he takes us back to the first public schools, which he admits did not exist when the original constitution was written but he says the First Amendment really didn't apply to the states until the Fourteenth Amendment was ratified, which was in the nineteenth century, when public schools did exist, so we can all breathe a sigh of relief that looking at what schools were like and the complete control teachers and administrators had over the students in those days is now a relevant consideration. 

School masters, or simply Masters, as Thomas calls them, ruled the students with an iron hand--Thomas tells us approvingly. Teachers spoke and students listened, Thomas tells us, and that is the way things ought to be. Masters could whip or cane their students. They could beat to a pulp any student who tried to belittle them or act insubordinately.  

Thomas is deeply offended by Tinker and other decisions which suggested the teacher should be limited in his ability to control the speech of the student--he is offended by any limitation, like the restriction the student's speech has to  be disruptive to educational goals or the safety of the school Teachers ought to have complete control period, in Thomas's view.

He has a point, because if you really had to look at the harm done by Bong Hits for Jesus, you get pretty lame pretty fast. 

As Justice Stevens notes, you'd have to be a complete idiot to be at risk for being persuaded to use drugs by reading that sign.  

It's in the back and forth between the justices you really see the truth: Souter says this sounds like a kid being cheeky; Stevens says the kid may be a knucklehead or a show off but he poses no threat the Western Civilization.  Roberts and most especially Thomas see insurrection by students as the first step to undoing society. They sound like Nixon scolding the "Bums" who demonstrated against the Viet Nam war on campuses. 

And the student protests against the war in Vietnam echo through the case law raised here, in a case of students who wore black arm bands to protest the war. Students defying their teachers, defying adult authority is the real nightmare which terrifies and enrages Thomas, Roberts, Scalia and Alito, in just about that  order. Those who are last would be first and that's what terrifies this court.

Justice Roberts knows this, it's pretty clear, because he rebukes his colleagues and others who want to claim the reason this speech has to be controlled is because it implies a disagreement with the schools "education mission" to teach that drugs are wrong. Roberts says the case is not about drugs but about money--because the student is suing the principal who tore up his sign and suspended him for violating his right to free speech.


No, what bothers Roberts is the same thing that bothers Thomas: The student has been impertinent and sassy and deserves to be slapped down. He has disagreed with the anti drug hysteria and mocks it and makes his principal and all those sanctimonious adults who travel with her look like the idiots they are.

As if suppressing the very words, "The war on drugs is a travesty," will "educate," our children.

As if "education" is simple indoctrination. 

If you are a Supreme Court justice whose first five years of education was being told what to think without the option of objecting, questioning, this might seem like education to you.

But there are those of us who grew up in America thinking education was about questioning dogma, not swallowing it unchewed.


The Supreme Court cannot see that. 

For the Supreme Court, truth is handed down, impertinence is an affront to be crushed, the masters should rule and free speech is just for the masters.