Friday, June 27, 2008

Five Days? But I'm Mad Now!

Updated: Thus spake Homer Simpson, upon being told by the salesman at Bloodbath and Beyond that state law imposed a waiting period on the purchase of guns. Speaking of the Heller case, here's my column on FindLaw should be up some time today. For this post, I'll quote my conclusion:

Yesterday’s decision may have the eventual consequence of removing strict gun control laws from the list of options available to local elected officials. If so, and if the gun control advocates turn out to have the better of the empirical argument, then the Court’s decision in Heller “will almost certainly cause more Americans to be killed.”

Those are not my words. That is what Justice Scalia had to say in dissent earlier this month in Boumediene v. Bush. He then added that sacrificing American lives “would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic.” No doubt Justice Scalia believes that a personal right to armed self-defense is such a principle, but then, the majority in Boumediene thought that the availability of habeas corpus is also a time-honored legal principle.

Here I'll simply add a point I've been stewing over since reading Justice Scalia's Boumediene dissent: How does he know? Isn't it quite possible that the consequence of Boumediene will be to hasten the closing of the prison at Guantanamo, thus allowing the next President (whether Obama or McCain) to move more quickly towards restoring the image of the U.S. around the world? And couldn't that in turn lead to a diminution in the number of people who are eager to become anti-American terrorists, or to abet anti-American terrorists, or to turn a blind eye towards the activities of anti-American terrorists? "Almost certainly" is way too strong a statement given the plausibility of this alternative chain of events.

As for Heller, I'll let my column speak for itself.

Posted by Mike Dorf

29 comments:

David C. said...

It's hard to know what to make of Justice Scalia's "more Americans [will] be killed" point. Given rates of recidivism, I would think that many of the protections we offer criminal defendants---counsel, Brady material, confrontation of witnesses, etc.---will cause some guilty people to escape punishment, and thus to commit more crimes. Some of these people who would otherwise be in jail might also end up killing some poor victim in the course of a car jacking or a gang dispute. If so, then all of these protections will lead to the death of more Americans.

Is that the trump card? If we could prove that the right to counsel leads to more deaths, should we abandon that right?

If not, then it is hard, I think, to criticize the Boudemine majority on that ground. It's one thing to say the majority improperly interpreted the Suspension Clause, but quite another to say that an interpretation must be wrong if it leads to more deaths.

egarber said...

Hey Prof,

You may address this in your piece (which isn't posted yet), but what do you make of this blurb from a NY Times story this morning? Yesterday, I figured that declaration of an individual right would be enough to apply everywhere, but now I'm wondering: why didn't Scalia simply say it applies to the states as well (or did he?)?

Here's the blurb:

Benna Ruth Solomon, a lawyer for the City of Chicago, said there was, at least for the time being, no doubt about the proper answer to that question.

"As we sit here today," Ms. Solomon said, "this decision does not apply to the city of Chicago. It does not apply to the states or municipalities. The court has held that on three prior occasions.
Those precedents remain good law until the Supreme Court says they do not."

egarber said...

Here's Randy Barnett's take in the WSJ this morning:

"Justice Antonin Scalia's majority opinion in yesterday's Supreme Court decision in District of Columbia v. Heller is historic in its implications and exemplary in its reasoning.

A federal ban on an entire class of guns in ordinary use for self-defense – such as the handgun ban adopted by the District of Columbia – is now off the table. Every gun controller's fondest desire has become a constitutional pipe dream.

Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to "incorporate" the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.

My prediction: This ruling will eventually be extended to the states.

Michael C. Dorf said...

Thanks to a series of "upgrades" of the FindLaw site, columns now don't appear until the middle of the day. (Supposedly this will change once the "upgrading" has been completed.) Once it's up, you'll see that I think the logic of the case strongly implies that it will eventually apply to the states, but that lower courts are not permitted to say that until the Supreme Court says so expressly.

egarber said...

A seemingly odd thing about Barnett's column:

He praises Scalia to an extreme and then says that this is why elections matter. But if this is the same Randy Barnett that pushes for the Ninth Amendment to have teeth (presuming liberty in a super broad context), how does he think another Scalia would help there? Scalia may not be Bork, but it's safe to say he's not fond of defending UNenumerated liberties.

What am I missing here?

egarber said...

Once it's up, you'll see that I think the logic of the case strongly implies that it will eventually apply to the states, but that lower courts are not permitted to say that until the Supreme Court says so expressly.

So basically, a lower court might tentatively rule that it doesn't apply to the states, and then we'll see another appeal to the SCOTUS? Ok, I'll stop blog-hogging now.

Sobek said...

"And couldn't that in turn lead to a diminution in the number of people who are eager to become anti-American terrorists..."

Considering that the surge has already led to such a diminution, your question seems moot.

Experience shows that you win wars by defeating your enemy unequivocally (after which you can extend olive branches, a la Germany and Japan), not by keeping the moral high ground.

And I loved that episode of the Simpsons.

Jean said...

Considering that the surge has already led to such a diminution, your question seems moot.

I think don't think you can compare the surge, and any diminution it's had on attacks in Iraq, to closing Gitmo and a possible reduction in anti-American attacks/sentiment in general. With the surge, yes, we are engaged in a war, with two (or three) sides fighting one another, and in some ways you can identify your "enemy" (though I suspect there are quite a few innocent Iraqis held in prisons in Iraq precisely because we can't easily define who is an insurgent/terrorist). But a large majority of people in Gitmo and other secret prisons have been picked up thousands of miles from any battlefield, many sold to the US for huge bounties, and it is not clear at all that they have any connection to al-Quaeda or the Taliban, which is the definition the president used in his Executive Order in 2001 authorizing indefinite detention. I agree with Prof. Dorf that we are creating more enemies with our current practices - especially extraordinary rendition, torture and lack of any legal process - and through this we've so tarnished our international credibility and reputation that it will take years to rectify. The Boumediene decision is a first step.

heathu said...

While the logic of the case may strongly imply that it will eventually apply to the states, Justice Scalia himself said in his book A Matter of Interpretation that, read properly, the second amandment is no barrier to the states banning guns. (I'm at work so I don't have the book in front of me right now, but but I can get a page and footnote cite later.)

egarber said...

Considering that the surge has already led to such a diminution, your question seems moot.

No it doesn't. All it shows is that security is a bit better now in a country that before the invasion had no Al Qaeda presence or local anti-American insurgence. The real question relates to what's happening elsewhere because of our invasion. The Taliban and Al Qaeda are both immensely stronger now in Afghanistan. And I'm also convinced that our invasion has greatly increased bin laden's recruiting throughout the Muslim world. That's the real measure of meaningful "diminution", or lack of it.


Experience shows that you win wars by defeating your enemy unequivocally (after which you can extend olive branches, a la Germany and Japan), not by keeping the moral high ground.

Well, that enemy was abandoned when we shifted gears from Afghanistan to Iraq. Also, in THIS war, the center of gravity is much different than what applies when you're fighting a nation state. If we're going to eliminate Al Qaeda, we have to win over moderate Muslims so we can isolate the bin ladens of the world. If moderate Muslims are the real center of gravity (as I think), it matters very much how our actions are perceived in that part of the world. As an example, it's very difficult for me to think that Abu Ghraib didn't make matters much worse for us.

egarber said...

I should mention that the other center of gravity as I see it is terrorist funding -- which puts energy independence at the top of our national security needs.

Every time we fill up our SUVs we're creating the revenue stream for the other side of this "war." On top of the funding, energy independence would allow us to militarily disengage from the middle east. That would contribute to securing the first center of gravity: those moderate muslims who aren't militant (yet), but who very much want the U.S. out of their region.

Mortimer Brezny said...

Dorf,

No offense, but harping on the "people will be killed" line is bogus. (As in Carl Bogus.)

There were ample statistics before the Court in Heller on the question of whether the D.C. gun ban worked. Not only was the gun ban ineffective, it may have caused more killings. Getting rid of the ban thus won't kill more people, as the ban is either responsible for the elevated level of killing post-enactment or it has had negligible to no effect.

You can disagree with Heller all you want, but throwng your own rationality and crediblity out the window to do so should be beneath you.

egarber said...

So as the Prof puts it in his piece, the next challenge against a state law will have to be rejected in the lower courts because two pre-14th precedents remain on the books concluding that the second does not apply to the states. When it reaches the Supreme Court, I'm guessing the question will be whether it's incorporated.

My question is:

Are any of the conservatives justices on record anywhere discounting incorporation generally? I remember reading in some book -- by Michael Curtis? -- that Ed Meese launched an effort to unravel incorporation. Just wondering if any of the current justices are from that extreme school of thought.

Mortimer Brezny said...

From Professor Dorf's Findlaw article: The Framers, [Scalia] said, were worried that the federal government might disarm the population, and so they protected the unorganized militia—a term referring, at the time, to able-bodied adult white men—by protecting a right to private possession and ownership of firearms. Although the purpose recited by the Second Amendment had to do with resisting federal encroachments on the militia, Scalia reasoned, the substance of the right was broader, and remains so.

The majority opinion does not say that. It says that at the time the unorganized militia was all able-bodied men. The organized militia was intended to be a select group of white men, and numerous amendments were made to militia clauses to exclude free blacks for that reason. All one need do is read page 26 of Scalia's majority opinion:

Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise . . . Armies”; “to provide . . . a Navy,” Art. I, §8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the militia,” §8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all ablebodied
men, the federally organized militia may consist of a subset of them.


If explicit text were not enough, Professor Dorf, Stevens and Scalia disagree on this point, citing the same law review article: Siegel, The Federal Government’s Power to Enact Color-Conscious Laws: An Originalist Inquiry, available on SSRN.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=940643

To that effect, on page 27 of Scalia's majority opinion, it reads:

Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521–525 (1998).

In reply, Stevens disputes Scalia's reliance on Aldridge, which prompted Scalia to reply in full:

A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that “numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia. FN 21

And the content of Scalia's 21st footnote is:

JUSTICE STEVENS suggests that this is not obvious because free blacks in Virginia had been required to muster without arms. See post, at 28, n. 29 (citing Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 497 (1998)). But that could not have been the type of law referred to in Aldridge, because that practice had stopped 30 years earlier when blacks were excluded entirely from the militia by the First Militia Act. See Siegel, supra, at 498, n. 120.

JUSTICE STEVENS further suggests that laws barring blacks from militia service could have been said to violate the “right to bear arms.” But under JUSTICE STEVENS’ reading of the Second Amendment (we think), the protected right is the right to carry arms to the extent one is enrolled in the militia, not the right to be in the militia. Perhaps JUSTICE STEVENS really does adopt the full-blown idiomatic meaning of “bear arms,” in which case every man and woman in this country has a right “to be a soldier” or even “to wage war.” In any case, it is clear to us that Aldridge’s allusion to the existing Virginia “restriction” upon the right of free blacks “to bear arms” could only have referred to “laws prohibiting blacks from keeping weapons,” Siegel, supra, at 497–498.


You may disagree with Justice Scalia's reading of Professor Seigel's article, Professor Dorf, but you are 100% intellectually dishonest when you attribute to Scalia's opinion the view that the unorganized militia = able-bodied adult white men at the time of the Framers. His opinion states the contrary.

Sobek said...

These are the people whose respect we want to gain back:

http://www.youtube.com/watch?v=xnMtc_QJ4-E&eurl=http://ace.mu.nu/

These are the people whose respect we want to gain back:

http://hnn.us/articles/28321.html

These are the people whose respect we want to gain back:

http://www.washingtonpost.com/wp-dyn/articles/A30286-2005Mar12.html

These are the people whose respect we want to win back:

http://brain-terminal.com/posts/2005/11/21/french-diplomat-admits-taking-saddam-bribe

The Anbar awakening happened when local leaders realized that the Americans intended to stay, so that they could cooperate without fear of being thrown to the wolves. That is the only international respect worth having. Sucking up to the French, who opposed the invasion because they realized it would cost them oil bribes and illegal arms sales, is not respect worth having.

The average anti-American European does not hate America because he or she has carefully considered international jus ad bellum and jus belli, and a President who promises to restore our honor by complying with what Brussels thinks is as naive as -- well, Barack Obama, for one, who thinks he can negotiate with Tehran in spite of a total lack of bargaining chips in which Tehran might be interested.

egarber said...

The Anbar awakening happened when local leaders realized that the Americans intended to stay, so that they could cooperate without fear of being thrown to the wolves. That is the only international respect worth having.

Are you implying that we’re better off allying with Sunni warlords than Europe and the UN?

We're fooling ourselves if we think these arrangements – partnerships with Awakening Councils, etc. -- are long-term alliances. Yes, for the time being, some opportunistic Sunni groups are working with us; however, many of these militia members were attacking and killing American soldiers not too long ago as part of the anti-occupation insurgency**. We'll only be "respected" as long as a mutual opportunity exists -- but in the end, the Sunnis will want us out.

** Seems to me a double standard is afoot, since conservatives don't seem to have any problem working with thugs who have attacked and killed American soldiers. Usually, if a Democrat even suggests such a thing, there's talk of treason or worse.

For a historical illustration, the Afghanistan mujahideen accepted our support when they were trying to drive out the Soviets. But even then, Osama Bin Laden worried about western influence in that part of the world -- and he eventually became our primary enemy. Choosing allies based on immediate need won’t necessarily generate respect for us – with Bin Laden, it was the exact opposite. And there’s every reason to think that if circumstances change, the Awakening fighters will again turn on us.

To me, we desperately need the very alliances you seem to be shunning. For every inch we distance ourselves from Europe and others, we create cracks terrorists and other enemies of the U.S. will fall through. In other words, the weaker the partnership, the weaker the coordination – the weaker the law enforcement coordination, the greater the risk of another attack. A big part of strengthening those partnerships is upholding the right values, so countries *want* to work with us. That's not pandering; it's leading.

Sobek said...

"Are you implying that we’re better off allying with Sunni warlords than Europe and the UN?"

Depends on the conflict. In Anbar provice the answer is quite obviously yes. The UN did nothing but help Saddam starve and murder his own population. The cooperation of local tribal leaders helped make the place safer than New Orleans.

"Yes, for the time being, some opportunistic Sunni groups are working with us; however, many of these militia members were attacking and killing American soldiers not too long ago..."

How does that make them different from Germans, Japanese, or South Koreans? History shows it is possible to turn enemies into friends.

"...the Afghanistan mujahideen accepted our support when they were trying to drive out the Soviets."

We only fed them arms and training. We didn't help establish a democracy or have any kind of long-term view.

"To me, we desperately need the very alliances you seem to be shunning."

I'm not shunning alliances, I'm pointing out that earning the respect of France, which has no problem firing on unarmed masses in Ivory Coast, but turns up its nose when America topples a dictator (because it cuts into France's illegal arms sales) is neither possible (because why would France "respect" the guy who cuts off the gravy train?) nor necessarily desireable.

Countries make alliances when those alliances serve a country's interests. When it came time for France to give some teeth to the UN resolutions against Iraq, it walked away because it was only concerned with making itself rich, at the expense of dying Iraqis.

We are still (nominally) allies with France. And to the extent that France wants to do the right thing by building democracy in strategic parts of the world, opposing dictators, and rejecting its own past corruption, I welcome them along. But America, when acting to defeat tyranny and oppression, cannot wait until it gets the go-ahead from the grotesquely corrupt UN and France.

"A big part of strengthening those partnerships is upholding the right values..."

Values like stopping illegal arms sales to terrorist-supporting regimes? France wasn't terribly concerned about that. France has no values. France has self-interest. Like every other nation.

And if we wait until America is perfect so that it can lead by irreproachable example, how many will die in the meantime?

egarber said...

The cooperation of local tribal leaders helped make the place safer than New Orleans.

I hope you're right that it becomes something stable over the long term, but I strongly suspect that you're overstating the success. There have been several reports about Sunni fighters threatening to leave the ranks because of perceived sectarian bias in government action. In addition, our own commanders have openly wondered if the endgame of this effort might be an organized and very well-armed Sunni power center that will trigger a much bloodier civil war. You simply can't look at these "allies" like you would stable nation-state partners. These are individuals driven very much by sectarian impulse; the shia / sunni divide is everything. But not too far behind that is disdain for foreign occupation.

In other words, for all the promise you're touting, we're taking on a big risk by arming these players.

How does that make them different from Germans, Japanese, or South Koreans? History shows it is possible to turn enemies into friends.

Your examples are of nation-state leaders acting in their national interest. That's VERY different than individuals acting out of their own sectarian agendas. Germany, Korea and Japan had leaders who spoke collectively for their people as fellow countryman; in Iraq, nationalism falls way to sectarianism. Loyalties will shift in a minute. Within the Awakening groups, there's conflict and infiltration -- no single voice.

Further, Japan formally surrendered and reconciled before becoming our ally. Who has surrendered and reconciled on behalf of the insurgents, who have expressed no allegiance to our larger cause, and who were recently killing Americans in a drive to get us out? Based on some reports, Awakening members still are hostile to us -- to the extent infiltrators are trying to reignite the insurgency.

The point is that whatever comes of these partnerships, it's nothing like our relationship with Germany, Japan, et al.


Countries make alliances when those alliances serve a country's interests. When it came time for France to give some teeth to the UN resolutions against Iraq, it walked away because it was only concerned with making itself rich, at the expense of dying Iraqis.

Actually, in truth we were in the minority because of our insistence that an invasion was immediately necessary. Others (in addition to France) thought that the inspections had to be given time -- so we'd know for sure before acting on any use of force resolution. It was a debate between those who saw war as a first resort and those who saw it as a last resort. I was in the latter camp -- opposing it from the beginning -- not because of any love for France, but because the test for invasion hadn't been met.

And see today's NY Times for the cost of that decision. CIA and military people have been horribly frustrated in confronting Al Qaeda, because Iraq has drained critical resources and focus.

But America, when acting to defeat tyranny and oppression, cannot wait until it gets the go-ahead from the grotesquely corrupt UN and France.

There are ways to confront Tyranny that don't involve unilateral invasion based on false pretense. We should only invade another country if we face imminent danger. Iraq failed that test miserably, imo.

Absent that threat, in my view we must work with partners through international institutions.

egarber said...

Germany, Korea and Japan had leaders who spoke collectively for their people as fellow countryman;

To be more precise, I should say the leaders spoke in one central voice for the country's agenda, intentions and resources (military, foreign policy, etc.)

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