Indecent Exposure: Conservatives Unzip Judicial Activism and a New Right to Kill

Once upon a time, the biggest elephant in the Supreme Court’s hearing room was ridden by Justice Clarence Thomas, solo.

(Foggy? Or good at banishing painful images? Google “Clarence Thomas AND pubic hair,” or click on “Allegations of sexual harassment” in his Wikipedia entry.)

But with their Second Amendment decision June 26, 2008, three other “conservative” justices joined Thomas astride a new pachyderm, bigger and much more pernicious.

Made a majority fivesome by Anthony Kennedy, who relishes his mantel as 2008’s swing-vote, the conservatives exposed themselves in full-frontal glory as naked judicial activists. Unzipping with carefree abandon, they crumpled the fig leaves each used to get confirmed—the promise that they would only interpret and enforce the clear intent of the Constitution’s Framers.

Instead, they joined Antonin Scalia’s majority opinion, which indeed identified the clear intent of the Framers, but then trashed it, giving preference to a conservative ideology which the Framers’ never enshrined.

My detailed review of the majority and minority opinions confirms Justice Stevens’ assessment: “…not a word in the constitutional text even arguably supports the Court's overwrought and novel description of the Second Amendment,” which in Scalia’s words “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

One footnote by Justice Stevens captures perfectly why Scalia’s approach is so fundamentally flawed:

“The Court's atomistic, word-by-word approach to construing the Amendment calls to mind the parable of the six blind men and the elephant, famously set in verse by John Godfrey Saxe. [The Poems of John Godfrey Saxe 135-136 (1873).] In the parable, each blind man approaches a single elephant; touching a different part of the elephant's body in isolation, each concludes that he has learned its true nature. One touches the animal's leg, and concludes that the elephant is like a tree; another touches the trunk and decides that the elephant is like a snake; and so on. Each of them, of course, has fundamentally failed to grasp the nature of the creature.”

It is this mistaken method which leads Scalia first to identify correctly what the Framers codified in the Second Amendment—and then to ignore his own findings in favor of conservative ideology.

Ironically, there was some unanimity among the eight justices, and it emerged at two critical points of their analyses. Each of them agreed that there were multiple models of a right to bear arms available to the Framers, from a considerable variety of sources: English Common Law; laws enacted by the British Parliament; laws passed by colonial, state and municipal legislators; and proposals offered by the delegates who drafted and approved the Bill of Rights. And each justice agreed that the Framers did not codify all of these models, but in fact only one of them.

Compounding the irony, the dueling justices were sometimes even in agreement on what the one codified model was. For example, there is one key paragraph in which Scalia got it right:

“It is therefore entirely sensible that the Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens' militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.”

Precisely. Contrary to Scalia’s more expansive arguments elsewhere in his opinion, what the Framers chose to codify was not some cosmic right to bear arms to defend self and property, but a right to keep and bear arms in order to be militia-ready, to be available if called to active militia duty. Obviously this involved knowing how to shoot a gun and keeping a firearm or several firearms that could be retrieved expeditiously from some personal space.

Scalia also got it right when he quoted an opinion of the Georgia State Supreme Court in 1846: "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State.”

What the Second Amendment codified was not just any right to bear arms, but the right to keep and bear them for “rearing up and qualifying a well-regulated militia.” Clearly individuals in possession of such weapons would have used them for other purposes as the need arose. But as Justice Breyer observed in his dissent, those other uses were subsidiary to the right to be militia-ready, not the other way around.

Scalia also was accurate when he quoted an analysis of the Second Amendment from law professor Thomas Cooley’s 1880 work, General Principles of Constitutional Law: “The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order."

This correctly summarizes the right which the Framers chose to codify. It also calls to our attention other possible models which the Framers decided to exclude. As the two dissenting opinions point out, the model Scalia decided to venerate was among the latter.

Several quotations from Stevens’ opinion (which was joined by Justices Souter, Ginsburg and Breyer) support my view that Scalia discovered the Framers’ intent accurately, but then arbitrarily substituted his own ideology:

“The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States… Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

“…the words ‘the people’ in the Second Amendment refer back to the object announced in the Amendment's preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States' share of the divided sovereignty created by the Constitution.”

“…a number of state militia laws in effect at the time of the Second Amendment's drafting used the term "keep" to describe the requirement that militia members store their arms at their homes, ready to be used for service when necessary.”

“The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment's text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions...”

“The Court may well be correct that the English Bill of Rights protected the right of some English subjects to use some arms for personal self-defense free from restrictions by the Crown (but not Parliament). But that right—adopted in a different historical and political context and framed in markedly different language—tells us little about the meaning of the Second Amendment.”

“…the Second Amendment's omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time.”

“Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.”

“…after the delegates at the Massachusetts Ratification Convention had compiled a list of proposed amendments and alterations, a motion was made to add to the list the following language: "[T]hat the said Constitution never be construed to authorize Congress to ... prevent the people of the United States, who are peaceable citizens, from keeping their own arms." This motion, however, failed to achieve the necessary support, and the proposal was excluded from the list of amendments the State sent to Congress.”

“Madison's decision to model the Second Amendment on the distinctly military Virginia proposal is therefore revealing, since it is clear that he considered and rejected formulations that would have unambiguously protected civilian uses of firearms. When Madison prepared his first draft, and when that draft was debated and modified, it is reasonable to assume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to craft the Amendment as they did represented a rejection of those alternative formulations.”

“…state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed… The evidence plainly refutes the claim that the Amendment was motivated by the Framers' fears that Congress might act to regulate any civilian uses of weapons.”

The only weakness in Stevens’ opinion is that sometimes he wanders into misplaced concreteness. Every so often throughout his analysis he characterizes what the Second Amendment aims to protect as “military uses of firearms.” This obscures the Constitution’s distinction between a national military and state militias, as well as the Second Amendment’s concern to prevent Congress from disarming the militias and to prevent it specifically by keeping the militia members armed, trained and militia-ready. This plays into Scalia’s hand, allowing him to charge—accurately—that Stevens’ is mis-characterizing the Second Amendment’s intent.

What the dissenters needed to do was to address what being militia-ready means for firearms possession and use in an age when the militias envisioned by the Constitution no longer exist and the closest thing to a successor entity is the National Guard, which is in fact more military in structure than the militias were and much more under the control of the federal government. This, unfortunately, the dissenters did not accomplish.

The problem is at least approached tangentially in Justice Breyer’s dissent (joined by Justices Stevens, Souter and Ginsburg). Breyer proposes to evaluate the District of Columbia’s handgun statute under a “rational basis standard,” which requires the Court to uphold legislation so long as it bears a rational relationship to a legitimate governmental purpose. In the process, Breyer added some important observations that also refute Scalia:

“…colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the "right to keep and bear arms," whether embodied in Federal or State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home. Boston, Philadelphia, and New York City, the three largest cities in America during that period, all restricted the firing of guns within city limits to at least some degree.”

“The District's statute burdens the Amendment's first and primary objective hardly at all. As previously noted, there is general agreement among the Members of the Court that the principal (if not the only) purpose of the Second Amendment is found in the Amendment's text: the preservation of a ‘well regulated Militia.’”

“Moreover, even if the District were to call up its militia, respondent would not be among the citizens whose service would be requested. The District does not consider him, at 66 years of age, to be a member of its militia.”

“The law concerns one class of weapons, handguns, leaving residents free to possess shotguns and rifles, along with ammunition.”

“Nor, for that matter, am I aware of any evidence that handguns in particular were central to the Framers' conception of the Second Amendment. The lists of militia-related weapons in the late 18th-century state statutes appear primarily to refer to other sorts of weapons, muskets in particular… Respondent points out in his brief that the Federal Government and two States at the time of the founding had enacted statutes that listed handguns as ‘acceptable’ militia weapons… But these statutes apparently found them ‘acceptable’ only for certain special militiamen (generally, certain soldiers on horseback), while requiring muskets or rifles for the general infantry.”

“Nor is it at all clear to me how the majority decides which loaded ‘arms’ a homeowner may keep. The majority says that that Amendment protects those weapons ‘typically possessed by law-abiding citizens for lawful purposes...’ According to the majority's reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun.”

“At the same time the majority ignores a more important question: Given the purposes for which the Framers enacted the Second Amendment, how should it be applied to modern-day circumstances that they could not have anticipated?”

So where does this leave us?

It leaves us with a Constitution that now protects a broad new right to kill, in defense of hearth and home. Part 2, Chapter 2 of my doctoral dissertation shows that Christians have debated the morality of killing in defense of private property from their earliest days. The dominant position originally was that private property could not be acquired legitimately and that therefore it was immoral to kill a human being to retain it. That position began to slip in the Middle Ages and during more recent centuries. But this right to kill was not enshrined in the U.S. Constitution until the Court’s decision of 2008.

As the dissenters warn, it also leaves us with a right to kill that is very ill defined. Although the majority opinion listed gun-control laws it found legitimate and compatible with its decision, the dissenters are right to expect more slippage in Scalia’s direction as new specific cases are heard. And by not pinning down more precisely how far the right to kill extends, which weapons the Second Amendment exempts from regulation, or which laws legislatures may safely enact, the Court has set itself up to preside over multiple litigations of this issue endlessly.

Above all, it leaves the nation with a pressing need to restore integrity and judicial restraint to the Supreme Court. No liberal judicial activism in the past comes anywhere close to the arbitrariness of the conservative judicial activism in this case. Whatever their excesses, the liberal justices could never be accused of identifying the plain meaning of a constitutional amendment and then ruthlessly replacing it with their own ideology. Unless the next president of the United States puts an end to the appointment of conservative judicial activists to the Supreme Court, we can count on the court to put more conservative ideology into the mouths of the Framers.