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.

Ron Paul 2008 Campaign Postmortem

As a veteran of many election campaigns and movements, going back to 1960, and as having spoken to a lot of voters in this campaign season, I have a somewhat different take on the Ron Paul campaign than Sean Scallon does.

Although there are still many voters who have never heard of Ron Paul and his message, there are also many who haven't heard much about the other candidates, either. I find that polling in single digits was not the result of not enough people knowing. This is best indicated by the results in his own congressional district, where 70% of Republicans voted to return him to Congress, but only 12% voted to nominate him as the Republican presidential candidate, not enough to pass the 20% threshold for getting delegates. Those results don't come from not knowing, or even accepting, him or his message. Voters in his district know him fairly well. They like and trust him, and more people vote for him for that than agree with his positions, most of which they don't understand and prefer to trust him to think about.

The 5% of the vote he got in the Republican primary in Texas, normalized by multiplying by .6 to project it to the results that might be expected in a general election, yields 3%. That is the same percentage I received in the 2006 election when I was the Libertarian candidate for Texas Attorney General, and I got and spent far less money and had far fewer campaign workers. In other words, when it came to the final test, we both only got a hard core of libertarian voters who are more concerned about sending a message to policymakers to move toward libertarian constitutionalist positions than they are about nominating a candidate that they think can win in the general election. They perceive that, even if they are ready for a president who takes such positions, most of the rest of the country is not. It is not unlike the perception that the country is not ready for a black or female or Muslim or gay or openly agnostic president, even though oneself might be ready. Their perception is that the country is more ready for any of those than it is for a libertarian constitutionalist president.

I do not find any serious deficiencies in the efforts of the many campaign volunteers, other than there not being enough of them. I have been involved in campaigns in almost every election during the last 48 years and this was without doubt the best organized, most effective, and most enthusiastic I have seen. Everyone involved should be proud of his or her contributions to the effort, and I commend them all.

But we were up against a mindset we could not overcome: voters just did not perceive Ron Paul as someone who could win the general election, or, even if he won, be allowed by the Establishment to govern. I find that only about 10-15% of Republican voters tend to agree with his libertarian constitutionalist positions on domestic issues, and less than half of those agree with his strongly non-interventionist foreign policy positions. While he attracted many volunteers who opposed the Iraq war and foreign intervention, most of the voters with those views preferred to vote in the Democratic primaries or caucuses, largely out of habit and their herd affiliations.

There was also the problem of there being too many candidates competing for the same libertarian constitutionalist voters, especially, toward the end, Mike Huckabee. If the Establishment wanted to defeat our movement, they could not have found a better way to do it than by loading the field with multiple candidates to divide and conquer. If Brownback, Hunter, Tancredo, Huckabee, and Thomson had just stayed out of the race Paul might have gotten as much as 20% of the vote, not enough to win, but enough to shift the policy direction of this country toward libertarian constitutionalism. The Republican voters were gullible enough to fall for that.

The movement has its work cut out for it. Don't get discouraged by that. It took 200 years to get into this predicament and it may take a few generations, or perhaps a major catastrophe, to get us out of it. We are about changing the civic culture of a country, without the benefit of most parents or schools helping to transmit the traditions and habits of thought that founded it. As my grandfather, who used to teach in a one-room schoolhouse, predicted, we have become a nation of historyless adolescents, and growing out of that fast usually takes a lot of pain.

Now the movement needs to shift to electing libertarian constitutionalists to lower offices. It was never realistic to think that electing a president could change anything without first electing like-minded people to every other level and branch of government. Without the rest of the building, beginning with the foundation, the weathervane to be put on top will just lie in the ground, never showing which way the wind is blowing.

I am a candidate for the Texas Libertarian Party nomination for U.S. Senator. There are other such candidates, perhaps even a few within the Republican and Democratic parties, but mostly not. If you want to move the civic culture in the right direction, that will mostly mean supporting or becoming Libertarian candidates.

Let us challenge the voters to vote for the Constitution, because any vote not for the Constitution is a vote against it, and that means a vote for most Republicans or Democrats. Make it clear that to vote against the Constitution is to vote for letting government spy on you, destroy your reputation, assault you, imprison you, take all your property, kill you, molest your family, and force you to dishonor yourself, with no recourse but violence and none to come to your aid. If that's what you want, then volunteer for it, but don't vote for having that done to the rest of us.