Fatal concessions in DC v. Heller?

The oral argument yesterday in DC v. Heller, the Second Amendment case before the U.S. Supreme Court, involved what I regard, and have regarded in the brief as well, as fatal concessions, even if Heller wins a complete affirmation of the DC Circuit decision to hold the DC ordinance totally unconstitutional. The most important came during this exchange during the argument made by Alan Gura, representing respondant Heller:

JUSTICE STEVENS: Let me ask a question are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?

MR. GURA: There is that inherent aspect to every right in the Constitution.

JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be reasonably infringed"?

MR. GURA: Well, yes, Your Honor, to some extent, except the word "unreasonable" is the one that troubles us, because we don't know what this unreasonable standard looks like.

JUSTICE SCALIA: You wouldn't put it that way. You would just say it is not being infringed if reasonable limitations are being placed upon it.

MR. GURA: That's another way to look at it, Your Honor. Certainly --

CHIEF JUSTICE ROBERTS: -- you would define reasonable in light of the restrictions that existed at the time the amendment was adopted.

MR. GURA: Those restrictions.

The problem with this concession is that it opens the door to the legislative violation of rights if the violation is "reasonable", shifting the question from a binary, either-or decision, to a slippery slope that can render all our rights protections meaningless. As may be seen in my previous article on this case, I argued that this would become the central issue in the case, and it was important to proactively define in the briefs what is and what is not "reasonable", rather than letting the opposition define it. Alan Gura, and for that matter, the supporting amici curiae, failed to do that. They might still win this case in a narrow decision, but at the cost of allowing an opinion that will cripple future cases that need to broaden Second Amendment jurisprudence. Lawyers have an unfortunate tendency to focus on winning their present cases at the cost of the cases to come. The opposition has put us in this position by pursuing a longer-term strategy, and we need to do that as well.

Another flaw was in allowing the opposition to frame the issue by not addressing the definition of militia. The term militia had more than one meaning, either at the same time or depending on context:

a. Defense activity (the original Latin meaning, and the leading Founders were Latin-literate).
b. Those engaged in defense activity (a common idiom of the era).
c. Those with a potential of engaging in defense activity.
d. Those who have a moral duty to respond to a militia call-up.
e. Those who have a legal duty to respond to militia call-up (with penalties for failing to do so).

The Second Amendment uses the term in the sense of (a) or (b). During the oral argument the participants were using the term in the sense of (c), (d), or (e), and as a plural or collective noun rather than as an activity that can involve a single individual as well as many of them. This can also be seen in the exchange about the distinction between "self" defense and "common" defense, forgetting that in law the plural contains the singular so that common defense includes self defense and self defense is part of common defense.

The word "militia" is a polyseme, with multiple related meanings, either at the same time or depending on context. It is also a type of noun called an actronym in which the word for an activity acquired the meaning of those engaged in it. It is most often used by the Founders as an outiseme, a polyseme with at least two meanings at the same time, the basic meaning of "defense activity" and a secondary meaning of those who engage in the activity or are obligated to do so.

Gura also left unchallenged the point made by Justice Alito that the power delegated to Congress in Art. I Sec. 8 Cl. 15 and 16 to regulate militia was "plenary", so that the power to organize the militia could include the power to disband it. Gura did briefly dispute this, but should have anticipated it in his brief with the argument that no delegations of power are plenary, because there are only certain directions in which power may be exercised that are constitutional.

The brief endorsed by the White House, which conflicted with that of the Solicitor General, Paul Clement, made the beginning of a good point by drawing an analogy to the preemptive power to regulate the time, place, and manner of congressional elections (except the place of senate elections). But it failed to go on to make the point that it is only constitutional to regulate elections to make them more convenient, fair, and accurate. It is no more constitutional for Congress to prescribe the disbanding of militia than it would be to cancel elections (especially if they didn't go the way Congress wants).

There are several important distinctions that cannot be overemphasized. They are very basic, and one might expect trained, professional lawyers to make them in the normal course of their profession. It is alarming to see members of the U.S. Supreme Court and lawyers arguing before them failing to make them.

The first such distinction is the proper meaning of the term constitutional right. In the U.S. Constitution this means an immunity, that is, a right against the exercise of a power by government officials, what is sometimes called a "negative right" by some commentators. To be such an immunity, it must not be legislatively disabled or restricted. The exercise of an immunity may be disabled or restricted by judicial due process, to resolve a conflict among parties, or if it is proved in court that if not disabled or restricted there will be harm to the subject or to others, or as punishment for a crime defined by a constitutional criminal statute. But that is not the same as a legislative disablement or restriction, which would be a constitutionally prohibited bill of attainder. See my article, Public Safety or Bills of Attainder?

Now it may happen that the exercise of some power happens, incidentally, to put a burden on the exercise of a right. This most often occurs with the exercise of a taxing power. The question then becomes whether the burden is undue, or excessive. For example, a court may reasonably find that it is not an undue burden on the right to a free press to impose the same 7% sales tax on the sale of newspapers or newsprint that is imposed on almost all other commodities. However, a 100% tax just on newsprint, especially that sold to a disfavored newspaper, would indeed be an undue burden. But that is not the same as a direct or indirect legislative restriction, regulation or prohibition of the exercise of a right, such as by doing what was done in the district of Columbia, by passing a criminal ordinance requiring firearms to be registered, then, beginning in 1976, refusing to accept further registrations.

Also confused in the oral argument was the question of what is the authority for any legislative restriction or regulation. Would it be the exercise of a municipal police power, of the alleged power of Congress under the Commerce Clause as extended by modern (incorrect) interpretations of the Necessary and Proper Clause, or of the Militia Clauses of Art. I Sec. 8 Cl. 15 and 16 and Article II. It should be clear that with militia involved, whether active and organized or not, the power of Congress and the derivative authority of the District of Columbia, considered as akin to a state, that power is limited to the Militia Clauses. That means that while the U.S. or DC government may require citizens not in a called-up status to keep certain weapons and equipment, they may only regulate or restrict such weapons or equipment for persons in a called-up status, and it would be unconstitutional to keep everyone, or some disfavored group, in a called-up status indefinitely as a way to authorize the regulation or restriction.

Another point of confusion was in discussion of United States v. Miller, 307 U.S. 174 (1939), in which the discussants took from it that the weapons that could not be properly prohibited were those that were in common use by the people (when not in called-up status), rather than, as the opinion states, suitable for militia use, which is quite a different thing. The issue in the case was whether the weapon in question could be taxed, because if it was suitable for militia use, it would be properly tax exempt, on the grounds that a tax on it would be an undue burden on the exercise of a right. Neglected in that case was the question of whether it was constitutional to make it a criminal offense to possess something on which a tax had not been paid, which, given the limited delegations of powers in the U.S. Constitution, is itself unconstitutional. But that point was not argued in that case, perhaps in part because the party, Miller, was dead, and no one appeared to represent him in court. That fact makes the entire case infirm. The Court did signal that it had to make the distinction between items suitable for militia use and those that are not because if everything was suitable for militia then nothing could be taxed. However, since almost any working item might potentially be used for militia in some scenario, the real distinction that has to be made is whether that item was so used for some significant period of time, or would be likely used for militia at least some of the time. The issue arises because while the materiel of regular military forces are normally acquired through a formal acquisition process, in which the items are clearly identified, with purchasing being tax exempt, for irregular forces where militia materiel is acquired informally by individuals, the taxability of each item becomes ambiguous.

Apparently, the respondants were trying to avoid arousing fears that their legal position might threaten restrictions on the possession of such things as fully-automatic firearms, armor-piercing ammunition, rocket-propelled grenades, or plastic handguns, or possession of firearms by various classes of persons administrative deemed to be "dangerous" (see my article above), which were not issues in this case anyway. The members of the U.S. Supreme Court seemed to want to explore that area, and none of the litigants seemed as prepared for that as they should have been. It is difficult to tell a justice of the Supreme Court that his question is not on point to an issue in the case, but that should have been done. What should not have been done was to concede that there were weapons suitable for militia that could nevertheless be prohibited as not protected by the Second Amendment. The remedies for misuse of such weapons are to organize and train people as militia, and if someone is not fit to have or use one responsibly, to disable his right in an individual due process proceeding.

Another annoying error made in reporting on this case is to treat the word "General" as a title or rank of the Solicitor General, Paul Clement. It is not a title or rank. It is just a way to distinguish the official as not a "Special" solicitor. Similarly, the term "Attorney General" only means the person holds a general power of attorney, instead of only a special power of attorney, and it is similarly incorrect to call an attorney general by the title "General". The proper term of address is only "Mister".

From my viewpoint all the briefs of the parties and amici were deficient in various ways. I find the arguments shallow, lacking in a deep, philosophic understanding of the issues, as well as failing to anticipate the course of future litigation. It will mean more work for the lawyers, and a continuing ability of the gun rights organizations to recruit members and solicit donations, but it does not move us to where we need to be. Gura, the respondant's team, and supporting amici were too willing to concede many ways that firearms might be "reasonably" restricted, ignoring the fact that there is no constitutional authority to do so even if the Second Amendment allowed it, which it does not.