Tuesday, March 18, 2008

The Difficulty with the DC Gun Ban case . . . .

Sometimes when you want to comment on a major story of the day, it's difficult to figure out what to say that's any more important than the thousands and thousands of posts floating out there on the Net.

I mean, I'm a Libertarian, which practically requires me to have "cold, dead hands" tattooed on my forearm, doesn't it?

In truth I do believe that not only does the 2nd Amendment assert the right of individuals to own firearms, but also signifies the inalienable right of American citizens to make the determination (with due appreciation for the consequences) to employ deadly force in self-defense.

Yawn. So what? Not like this was news to anyone, right?

Let's try a different approach, and assume for a moment that the DC gun ban had been passed by a majority vote of the citizens. How would that change things? Can a community actually vote to restrict or even a constitutional right within its borders? This is actually a more interesting question than it first appears.

My first answer is, "Hell, no!"--thinking of freedom of speech, freedom of religion, security against search and seizure, etc. etc. The people who compose the majority of the population have no constitutional writ to take away rights from the minority who voted against it.

Yet two things complicate this issue: the original Federal nature of the government and the power of voluntary association.

It is important to remember that the framers of the US Constitution did not all hail from strictly Libertarian societies wherein the government was prohibited from messing with the people's individual rights. Massachusetts had an established church (which it kept until the 1830s) and sumptuary laws (a state-wide dress code for the uninformed). [Note: Virginia's George Mason actually wanted to give Congress the power to set up a national sumptuary law.] Maryland had laws forbidding the public production of theatrical plays. Virginia had laws on the books (honest!) detailing in which positions it was lawful to have sex with your wife. There are many other examples. Plainly, it was not the overriding belief of the Framers that government could not intervene in our private lives, it was simply their conviction that the Federal government should never be empowered to do so.

Read that way, the Bill of Rights is not just a list of individual civil rights, but also a list of powers that can only be employed by governments much closer to the people and therefore (at least presumably) much more directly answerable to them.

But then that all got swirled around in the immediate aftermath of the Civil War when the 14th Amendment completely changed the meaning of the Constitution in a very fundamental fashion. The original Constitution had (at least in some significant measure) protected the prerogatives of the States against Federal incursions with respect to individual civil rights. The 14th Amendment made the Federal government responsible for protecting the rights of citizens from the States. It wasn't actually until the early 20th Century that a specific Supreme Court ruling upheld the premise that the Bill of Rights impacted the States in exactly the same fashion as it did the national government.

The point? The idea that at least some level of the government is able to engage in setting social constraints, and the idea that the original US Constitution did not actually prevent states from making laws abridging religious freedom or freedom of speech suggests to some that there is merit in the idea that a community can set its own standards, regardless of the Bill of Rights.

Furthermore, we know of at least one way in which communities do this now, through the voluntary acceptance of deed restrictions. When we bought our current house, we did so with the knowledge that the deed included community-wide restrictions that had civil if not criminal weight. As I discovered during the recent Red Clay referendum run-up, those restrictions limited the number, kind, and locations of any political signs I might want to erect on my property. There have been widely reported cases in which such restrictions successfully (in court) prevented residents from flying the American flag. There seems to be a well-established principle that you can voluntarily abridge some of your own rights in the pursuit of furthering your own economic goals (better resale value). After all, you are made aware of the deed restrictions before you purchase the property, and if you don't like them, you don't have to choose to live there--at least so the argument goes.

(Which is why, by the way, I tell my twins we can't have a trampoline. It's in the deed restrictions. In reality I'm too much of a wimp to just snarl at them that I'm not about to pay the dental bills for their broken teeth.)

So, at this point we have some murky ground with respect to governmental interference in rights accorded under the Bill of Rights, and a definite answer that, yes, you can sign away some of your rights in a voluntary association. I wonder then, if it would be legal to create a suburb with deed restrictions saying it would be "firearm free"? Possibly. But the hitch is that nobody could get arrested for possession of a weapon under these provisions, only sued by the tenants' association. (And also notice that it's not the government doing the banning.)

Still, it does raise some food for thought about my hypothetical majority-approved handgun ban. I don't think the DC gun ban passes any smell test for Constitutionality, just like I don't think most State restrictions on abortion do.

Yet here's what intrigues me: the idea that citizens could reduce or eliminate certain rights also entails the converse, that they could expand them.

This is not unprecedented. The Alaska State Supreme Court has agreed that the Alaska's state constitution's significantly greater privacy provisions than the US Constitution protect the right of the State's citizens to possess up to four ounces of marijuana and smoke it in their homes without fear of arrest. So here is the case of a State being able to grant greater personal liberties than the US Constitution does.

Suppose that the citizens of Washington DC had decided by majority vote that the best way to reduce violent crime was to legalize the possession of fully automatic weapons inside a home for purposes of domestic defense? (Just a hypothetical, folks, don't hyperventilate. On the other hand, maybe then you'll appreciate the title of one of Simon Clark's recent posts: An Englishman's Home is His Machinegun Nest.)

Would we be in court today hearing arguments about whether a State or Locality could decide to materially increase an individual citizen's right to bear arms?

Words are slimy, twisty things. You think you've got them nailed down, and then they go out and bite you on the ass. The due process clause in the 14th Amendment, intended originally to provide civil rights for freedmen morphed in the 1870s into due process rights for corporations.

The unsettling question for me, therefore, in the DC gun ban case is one that nobody seems to be asking. If the Court were to uphold it (which seems unlikely, but what the hell you never know, especially with Stephen Breyer on the Bench), it would be making an implicit argument that our fundamental rights are not only subject to interpretation, but also to municipal or governmental revision. This is generally seen as bad news for civil libertarians, and good news for advocates of the Nanny State who have hatched a Commie plot to keep me from enjoying movie theater popcorn.

On the other hand, if such entities can reduce rights, it also stands to reason that they can increase them as well, and I can look forward to my freedom (speaking in a purely hypothetical fashion, of course, with no real Doritos involved) to toking up in my back yard some day--or maybe just the freedom to take whatever drugs I damn well please to fight terminal cancer.

Scary thoughts all.


Waldo said...

Judicial federalism is nothing new under the sun, even if Alaska is only lately discovering it.It has ebbed and flowed as the federal courts- particularly the Supreme Court- have exercised sway over issues. The high water mark for that was, of course, the Warren Court in the 1960s.The liberal view was that the court could craft one size fits all solutions to all manner of social and legal ills, and they got their way for a time.

In the 1970s Justice William Brennan of the US Supreme Court and Justice Hans Linde of the Oregon Supreme Court became the great theorists for recourse to state constitutional protections. In the East the argument was driven by the fact that many states' constitutions predated the federal one (John Adams' legendary skepticism of legislating to pander to the passions of the mob ended up in his complex, multiyear Massachusetts constitutional amendment process, frustrating Governor Romney's efforts to gain the presidency on the backs of gay residents in his state); in the West it was that many had been enacted during the Populist era.

Either rationale works; when those powers not granted to the feds are reserved to the people, they can, through their state constitutions, confer greater and more expansive individual rights than the federal government does.

As Dr. Newton notes, words can be squirrelly little bastards. But judicial federalism is just another manifestation- and a sound one, at that- of the offsetting of powers between branches of government in, and between, levels of government. At a time when there are those who want to blast shut the entire concept of federalism when the object is something that annoys them (abortion, same-sex marriage) with federal constitutional amendments, the ability of state supreme courts to say, "Whoa!" is a valuable check on the passions of the moment.

Oregon and Washington, where I have the most direct experience, have well-developed standards for assessing and interpreting state constitutional rights. Washington Justice Robert Utter set the standard in the Gunwall case, writing in a subsequent 1986 law review article,

"Washington is one of many states that rely on their own constitutions to protect civil liberties. Since the recent retrenchment of the United States Supreme Court in this area, the appellate courts of a majority of the states have interpreted their state constitutions to provide
greater protection for individual rights than does the United States

Essentially, judicial federalism seeks to develop state law mechanisms for determining, objectively, whether state constitutions provide broader protections than the federal constitution. If the threshhold test is met, the test then continues through various weighing factors to determine how much, and how far.

A good example of judicial federalism is same-sex marriage. Advocates in nearly every state where such cases have been heard have been careful to frame their arguments purely in state constitutional terms. There is a practical reason for this- to keep such cases out of hostile, conservative federal district and appellate courts where a bad precedent would apply to all states in that circuit, and be much harder to overturn; and to avoid having a faint-hearted state court kick the ball over to the feds by certifying the case as presenting a federal question needing resolution before the state question can be addressed.

Far from being the crazed, judicial fiat enthusiasts opponents make them out to be, advocates of same-sex marriage rights have relied on state constitutional law precisely in order to argue the rights of plaintiffs in a framework of law and liberty that state's traditions comprehend.

And it has been a mixed bag: success in Massachusetts and New Jersey; defeat in Oregon and Washington (not even my amicus brief in Washington court carry the day). But where advocates have lost, the courts, quite properly, identified the alternative means of addressing the issue as the legislative arena, where successful civil unions legislation has followed.These days, it's at the federal level that federalism is feared and circumvented.

From a libertarian standpoint, judicial federalism provides all sorts of possibilities because it lodges one's arguments not in the sensibilities of a nation of 300 million, but in a state. State constitutional arguments are harder to make because the records of constitutional conventions are often more fugitive, and also because the federal courts have so expanded their reach that you can stumble into creating a federal issue pretty much by accident. But for the advocate willing to work to thread the needle, the result may well be a contented Dr. Newton toking away-legally- in his own back yard.

Bowly said...

One difference between the first and second amendments (at founding) was that the first explicitly stated that Congress was prohibited from doing certain things, whereas the second seemingly prohibits any legislative body from making infringing on the rights.

I get your larger point though.

tom said...

Amendments II-VI, VIII, IX (and most of VII) make no reference to any level or branch of government, and are clearly intended as individual rights recognized and protected by the Federal government against infringement by any level of government.

tom said...

"Plainly, it was not the overriding belief of the Framers that government could not intervene in our private lives, it was simply their conviction that the Federal government should never be empowered to do so.

Read that way, the Bill of Rights is not just a list of individual civil rights, but also a list of powers that can only be employed by governments much closer to the people and therefore (at least presumably) much more directly answerable to them.

Not the way I read the Constitution. (But then, I am only an ignorant layman who has not had the benefit of a law school education to teach me that simple english doesn't mean what it says -- it actually means whatever some court damn well pleases. Then again , most of the Framers were not lawyers either. But they were all well educated men who had been selected in state conventions or by their legislatures to go to Philadelphia and represent their state in amending the Articles of Confederation. They wrote not in legalese, but in clear, straightforward, eighteenth century English, expecting that any educated person could understand exactly what they meant.)

According to the 2nd & 3rd paragraphs of Article VI: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." (emphasis added)

The fact that this text was placed after Article V which defines the amendment process indicates that they had considered the possibility of this meaning the Constitution as amended.

There may not be any case law citing this, but it should be abundantly clear from the 2nd paragraph that the framers intended everything in the Constitution to be binding on the States. They were so serious about this that they required all state legislators & officers to take an oath to that effect.

tom said...

"The original Constitution had (at least in some significant measure) protected the prerogatives of the States against Federal incursions with respect to individual civil rights. The 14th Amendment made the Federal government responsible for protecting the rights of citizens from the States."

I disagree with Steve's interpretation of the 14th amendment. The 14th was a much more serious power grab by the Federal government than most people realize. Prior to the 14th, the Federal government had no direct jurisdiction over individual citizens. Even the few powers of Congress or the Executive that seem to affect individual citizens only allow them to create a uniform rule to be enforced by the States.

Amendment XIV, Section 1 creates a whole new class of citizen. Before this there was no notion of national citizenship, you were a citizen of some state, and when referring to them collectively they always wrote "Citizens of the several States" or "Citizens of the united States" (note the small 'u'). While this section has been interpreted increasingly broadly over the years, it was originally only relevant to the former slaves (who were not Citizens of the several States). Note that there is no mention of Rights, merely privileges & immunities. This Amendment was a compromise between a number of factions, most of whom were racist, and all of whom wanted to increase the power of the central government.