Saturday, December 29, 2012

No, the Second Amendment Does Not Guarantee a Right to Armed Revolution

In the contemporary debate on the meaning of the Second Amendment, proponents of gun ownership rights refer to two fundamental natural rights arguments to justify the ownership of firearms: 1) the natural right to self-defense; 2) the natural right of revolution. The former has been endorsed by the Supreme Court in District of Columbia v. Heller and McDonald v. Chicago. The latter is merely hyperbolic rhetoric in the real debate on gun control which must be put to rest once and for all.    
You can see only the first of these two natural law justifications in the prefatory clause of the Second Amendment: [a] well regulated militia being necessary to the security of a free state” and the operative clause: “the right of the people to keep and bear arms shall not be infringed.” The Second Amendment articulates a right to self-defense and preservation of life and liberty both as a collective and an individual sense, both as a member of a "well regulated militia" and as "a people." A person has a constitutional right to bear arms for the common defense as a member of a well regulated militia, and post-Heller and McDonald, as an individual.

              To understand the Second Amendment, one must look to the Constitution's other references to the regulation of militias in Article I and Article II. The states ratified the Second Amendment and its guarantee for the people to “to keep and bear arms” and raise a “well regulated militia” only four years after the Constitutional Convention authored Article I – which gave Congress the authority to “raise and support Armies” and to “provide and maintain a Navy.” Article I § 8, also authorized Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and 
“[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
In the Commander in Chief Clause Article II, the Constitution authorized the President as “Commander in Chief of the Army and Navy of the United States, and of the Militias of the several States, when called into the actual Service of the United States.” 

            In each and every one of the references to the “Militia” or “Militias” in Articles I and II, the plain meaning of the text of the Constitution is that the Founders envisioned a concomitant regulation of the militias. The states would be able to train their own militias and appoint their own officers to maintain law and order in their respective states, but Congress and the President would be able to call upon the militias to maintain federal laws, suppress insurrections and repel invasions. Surely the Second Amendment forbids the militias or the people from engaging in insurrection or invasion of the United States, because the Second Amendment right to form a state militia exists so that the militias can quell insurgencies and invasions.
Read the Second Amendment again. Nowhere in the Second Amendment does it say that  the the well regulated Militias of the several states – let alone each the people – have a constitutional right to take up arms against the United States government.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 
            Clearly, the Founders wanted to explicitly protect the states’ rights to field their own militias as central to the defense of the Republic. Historians attribute James Madison’s inclusion of the Second Amendment in the Bill of Rights as an overture to the Anti-Federalists who were concerned that the new federal government would disband the state militias – concentrating all military power in the hands of the federal Army and Navy. The Second Amendment was written in the aftermath of the American Revolutionary War, at a time when the Articles of Confederation was incapable of preserving the security of the Republic from British, French, or Spanish invasion, the Massachusetts militia was incompetent to quell Shay's Rebellion (1786-87), and white settlers in the Virginia frontier and Ohio Territory were engaging in low-level warfare with the Native American tribes.

           Massachusetts needed a militia because when Daniel Shays and his fellow agrarian revolters shut down the Commonwealth courthouses in Northampton and Springfield, the Boston mercantile class could not count on the toothless Articles of Confederation government to maintain law and order. Governor John Bowdoin had to organize a private militia. Just a few years after the ratification of the Second Amendment, President Washington would quell the Whiskey Rebellion (1791-94) by commanding militias from Pennsylvania, Maryland, Virginia, and New Jersey. States on the border needed to have militias because the Commonwealth of Massachusetts and the British Colony of New Brunswick both claimed parts of what is now Northern Maine, Georgia and Spanish West Florida both claimed what is now Alabama and Mississippi. The settlers needed to keep muskets to defend their outposts from Lenapee and Kickapoo raiders. The right to bear arms as a member of a militia - if not as an individual - was “necessary for the security of a free state” because there was still an impending fear of subversion of the fledgling Republic to foreign monarchs and domestic insurrections, and the Founders wrote the Second Amendment to protect the right to self-defense independent of the United States Army and Navy.           
            However, the natural law Second Amendment-thumpers must dispense with the notion that the “right of the people to keep and bear arms” was ratified as an additional layer of checks and balances; i.e. the right of the people to defend their natural liberties from an overbearing United States government. Such an argument is directly contradicted in the text of the Constitution itself. Article I gives Congress the authority to federalize the state militias to “suppress Insurrections and repel Invasions.” Article II gives the Commander in Chief supreme command over the Army and the Navy as well as the militias when called to service. The difference between the Army, the Navy and the militias is that Governors can call the militias into service too to quell riots and fight forest fires, they are only federalized with explicit Congressional or Presidential invocation of their Article I and Article II powers. Nowhere in the Constitution or anywhere in the minutes of the Convention or the correspondence between Jefferson and Madison and Adams and Hamilton is there any inkling of an idea that the state militias can check the authority of the federal courts or the U.S. Army or Navy.

             Moreover, the Constitution explicitly prohibits any U.S. citizen from bearing arms against the United States. The Treason Clause in Article III defines the crimes: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Without a doubt, the Second Amendment prohibits the people or the militias from levying war against the United States - the rare federal crime actually codified in the text of the Constitution. The Confederates who took up arms against the Union seven decades later were traitors, they were guilty of a crime which could be punishable by death upon the testimony of two witnesses or confession, and conviction in a federal court of law. If the Michigan Militia were to use their arsenal of AK-47 and M16s and seize an armory from the Michigan National Guard, that would be an act of treason. 
            Conversely, the notion that Madison included the Second Amendment in the Bill of Rights as a last layer of defense of civil liberty in case the federal government exceeded its authority is without sufficient corroboration. There are some fragments of quotations from Jefferson and the New Hampshire Constitution which might seem to convey such a natural right to revolution against governmental power, but even the most committed Originalist cannot possibly argue that a bloodthirsty quote from Thomas Jefferson unincluded in the text of the U.S. Constitution trumps the text of the Treason Clause in Article III. The Founders were concerned about the risk of consolidated federal power, but they were even more worried about mob rule.
So what if there is a natural right to revolution against tyrannical governments more fundamental than the Second Amendment? The Declaration of Independence surely espouses this radical notion, and this is why so many Americans tend to smile upon decolonization movements and armed uprisings against brutal dictatorships in Kosovo, South Sudan, Libya, Syria, et al. In instances where a genocidal regime wages war against its own people and threatens the very existence of an entire nation, most Americans look to the universal promise of the Declaration of Independence and sympathize with the inherent right of the people to rebel against an oppressive government.              
            But that has no bearing on perceived slights to liberty within the realm of the U.S. Constitution. If you think that income tax rates are too high or that the Affordable Care Act takes away your right to not have health insurance, you can agitate for change within the proper channels: you can run for office, you can vote in state and federal elections, you can mount a challenge in a federal court. But the Second Amendment does not give you a means to redress your grievances by armed force. No matter how much you disagree with a law, the Constitution provides for avenues to peacefully challenge the laws within the institutions of law and democracy – not by brute force. The Second Amendment says that a well regulated militia and the right of the people to bear arms is “necessary to the security of a free state” – but that free state is the United States of America.

Wednesday, December 12, 2012

Are the Proposition 8 Challengers Overplaying their Hand?

With the recent news that the Supreme Court has granted certiorari to a bevy of same-sex marriage cases; including Hollingsworth v. Perry, it looks like 2013 is already promising to be a landmark year, politically and doctrinally. With the cases before it, the highest court has the potential to entirely do away with all civil marriage laws in every state and the federal government which discriminate against gay, lesbian, bisexual, and transgender Americans. However, many same-sex marriage proponents remain fearful that it might be too soon to go to the courts because if any or all of these cases backfire and the Court upholds any one of those laws, America might be stuck with a noxious Bowers v. Hardwick-like precedent for a generation. If the Supreme Court were to write an opinion considering and rejecting a constitutional right to same-sex marriage, that could prove calamitous to any future suits challenging state marriage laws in the federal courts.
To understand where the marriage equality movement now stands, now, at the end of the year 2012, same-sex marriage is the law of the land in 9 states and the District of Columbia. A lesbian couple can walk into any City Hall in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Maine, Maryland, Washington State, and Washington, D.C. and successfully apply for a marriage license, their marriage is recognized as valid according to their state agencies and those of some (but not all) other states.  
 However, despite the gay marriage insurgency over the past eight years, there is still plenty of work to be done. In 41 states, LGBT Americans are still denied the right to marry, in 36 states they can’t even get a civil union. According to federal government agencies like the IRS, the Federal Housing Administration, and the Veterans Administration, all those marriages in Boston and Seattle and Des Moines have never happened. Thanks to the federal Defense of Marriage Act, the federal government treats a married couple like legal strangers, and uses it to deny the approximately 1,100 federal rights and responsibilities afforded to couples in civil marriage.
Enter Hollingsworth v. Perry. Originally Perry v. Schwarzenegger, then Perry v. Brown, this is the celebrated case by brought by Ted Olson and David Boies challenging California’s Proposition 8, the 2008 ballot initiative which California voters approved to ban same-sex marriage by constitutional amendment. Olson and Boies consider this to be the civil rights issue of our time (rightly so), and they see the potential for this case to result in a Supreme Court decision establishing a constitutional right to same-sex marriage, striking down each and every Defense of Marriage Act in every state in the Union. Judging by their prior writings and public pronouncements, it seems that there might be four Justices (Ginsburg, Breyer, Kagan and Sotomayor) who might be likely to support such a bold declaration for gay marriage rights. Though Justice Kennedy waxed eloquently in his majority opinions in Romer v. Evans and Lawrence v. Texas about the “dignity deserved by gay men and women”, it is unlikely that Kennedy might take such a striking pronouncement in this case because there are plenty of ways that the Court can make a decision leading to the nullification of this repugnant amendment without answering the fundamental question. 
First of all, the Court can deny the defendants standing, because Governor Jerry Brown and Attorney General Kamala Harris refuse to defend Prop. 8 – it is being defended by the coalition of anti-gay activists who organized the ballot number. Generally speaking, this is not very kosher – states have to defend their laws if they are going to appeal to the Supreme Court. If SCOTUS decides to reject the appeal on these grounds, or remand it back to a lower court and allow only the State of California to appeal, and the State refuses, then Prop 8 has already been struck down by the federal district court and the Ninth Circuit Court of Appeals. The effect would be that gay marriage is legal in California once again.  
More likely, the Court might make a very narrow ruling overturning Prop 8 essentially echoing Judge Stephen Reinhardt’s opinion in the Ninth Circuit decision. Judge Reinhardt, ever cognizant of the politics of the Court and the fact that Justice Anthony Kennedy is the swing vote, wrote a decision which took pains to invoke Kennedy’s prior opinions in Romer v. Evans and Lawrence v. Texas. According to Reinhardt, the facts of this case mirror that in Romer; after some municipalities enacted ordinances banning discrimination against homosexuals, Colorado voters approved a ballot initiative which would prohibit any such anti-discrimination ordinances protecting the civil rights of homosexuals. In that landmark decision, Kennedy wrote that there was no basis for this referendum other than sheer “animus” against gay people; therefore, it failed basic rational basis review and was unconstitutional. Reinhardt also reiterated Kennedy’s emphasis on the fact that Coloradans had given gay people a civil right and then taken it away for no rational purpose – much like the present case in California. If consistency is a virtue, it appears most likely that Justice Kennedy would write the majority opinion or at least a controlling opinion along these lines. 
It is also possible that the four liberal Justices plus Kennedy might accept Olson and Boies’ argument that, lurking somewhere in the penumbras of the Fourth, Fifth, Ninth, and Fourteenth Amendments, the Constitution protects the individual’s fundamental right to same-sex marriage. Especially if you read Kennedy’s opinion in Lawrencev. Texas, which stressed that “[t]he petitioners are entitled to respect for their private lives” and that, therefore, “[t]he State cannot demean their existence or control their destiny”, it appears that Kennedy feels quite sympathetic to the fundamental injustice that is perpetrated against same-sex couples nationwide by governmental denial of their intimate relationships. If you read Justice Kennedy’s opinions in Romer and Lawrence, you cannot help but think that if it came down to it, he would gladly write the decision that establishes a constitutional right to same-sex marriage. 
 However, to do this would mean that – in one fell swoop – the Supreme Court would establish gay marriage across the entire United States, ordering the legislatures of every state and jurisdiction which has not already enacted such a law – i.e. Alabama, Alaska, Arkansas, Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Texas, West Virginia, Wisconsin, Wyoming, and also Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Marianas Islands, American Samoa, the Tribal nations, the U.S. Armed Forces, and the federal government to amend their family codes immediately. Marriage equality would reign supreme from sea to shining sea.  
However, there are reasons for such a bold move, both jurisprudential and political at this point in time. First of all, it seems that SCOTUS can affirm the Ninth Circuit’s theory as to why Prop 8 is unconstitutional without addressing the broader issue of whether or not the Constitution provides a fundamental right to same-sex marriage. According to the Doctrine of Ripening, the Court is an inherently conservative institution which ought to avoid constitutional issues if at all possible and to only address those constitutional questions which are absolutely necessary to the judicial review of a given law. In other words, the Court picks the lowest-hanging fruit. So long as the Court can strike down Proposition 8 for lack of standing or on the narrow Romer precedent, there is no need to reach for the lofty firmament of fundamental constitutional rights. 
Moreover, just imagine the political fallout if five (maybe six) Justices on the Supreme Court issue such a sweeping decision that allows LGBT Americans nationwide the right to marry.
For comparison, let’s compare status of legal same-sex marriage in 2013 to the status of legal abortion in 1973 – the year that the Court decided Roe v. Wade. When Justice Blackmun wrote that landmark decision, finding a fundamental right to abortion in the penumbras of the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, states had just begun to liberalize their abortion laws. In 1967, Colorado, Oregon, and North Carolina had paved the way for liberalizing the ban on abortion and allowing doctors to carry out the procedure in the case of rape, incest, and medical emergencies threatening the life and health of the mother. Only in four states – New York, Washington, Hawaii, and Alaska – was abortion outright legal.
So in 1973 when Justice Blackmun, by judicial fiat, declared abortion to be a fundamental right across the land, it energized the pro-life movement into a political behemoth not just in the Heartland but even in highly-Catholic, highly-Democratic states like Massachusetts, New Jersey, Illinois and Pennsylvania. Historians credit this decision with splintering the New Deal coalition, giving rise to organizations like the Christian Coalition and the Moral Majority, and the Christian Right’s takeover of the Republican Party. Roe v. Wade indirectly gave rise to 12 years of Reagan and Bush and the appointment of four conservative Supreme Court Justices – Scalia, Thomas, O’Connor, Kennedy – who tapered back Roe as far as they could. What was a stunningly progressive movement of liberalized abortion laws in the late 1960s and early 1970s – even in states like Kansas, Arkansas, Alabama, and Mississippi – stopped dead in its tracks. The pro-life movement and the growth of the Christian Right swung the politics of those same states swung so far to the right that, almost half a century later, it would be almost unthinkable that the legislatures in Topeka, Little Rock, Birmingham and Jackson could ever take such steps to advance human rights and the dignity of women on their own volition today as they did 40 years ago. 
So what would a sweeping decision in Hollingsworth v. Perry do to the movement for marriage equality? There are two schools of thought. 
The first hypothesis is that, like Brown v. Board of Education, Hollingsworth could establish a resounding opinion affirming the rights of same-sex couples that resolves this question once and for all. Every loving couple in not just San Francisco and West Hollywood but also Wichita, Caspar, Baton Rouge and Chattanooga would be able to go to City Hall and get their marriage license and live happily ever after. The End. 
The second hypothesis, which I fear is more likely, is that such a sweeping decision which changes the marriage laws of 41 states in one fell swoop creates an enormous backlash which sets back the cause of marriage equality, gay rights in a broader context – let alone liberal politics. Adam and Steve would be able to get their marriage license at the Montgomery City Hall, but there would be riots and lynch mobs outside. Maggie Gallagher and Brian Brown and Phyllis Schlafly would hold rallies denouncing “judicial activism” at the courthouse steps of every county seat in every Congressional district in the country. It would look like this all over Florida, Ohio, Michigan, Wisconsin, and Pennsylvania. Republicans would take back the Senate in 2014, in 2016 Marco Rubio would win much of the heavily Catholic industrial Midwest and Southwest, and President Rubio would nominate replacements for Justices Breyer, Kennedy, Scalia and Thomas who would make Robert Bork look like Leon Trotsky.  
In so many words, for Hollingsworth v. Perry  to establish a constitutional right to same-sex marriage nationwide, at this juncture in time, might counterintuitively be very, very bad for the marriage equality movement in the long run.

When it is most successful, social progress is a gradual process which reaps one small victory at a time until, eventually, one day people look up and realize that that once crazy radical idea has become the mainstream consensus. That is why this student of law and politics hopes that the Court makes a decision in Hollingsworth which finds Proposition 8 to be unconstitutional – though along the narrow Romer v. Evans-like grounds that applies only to California. Mince no words – Hollingsworth v. Perry would go down down in American history as one of the greatest – if not the greatest – courthouse victory for the gay rights movement thusfar. The population of the United States able to marry a person of the same sex would instantly double.
2013 might yet be the most fruitful year in the history of the marriage equality movement. It looks like marriage equality statutes will be victorious at the statehouses in Illinois, Hawaii, Rhode Island, and Delaware. The Colorado and Minnesota legislatures also appear to be poised to pass civil union laws. 2013  might end with a total of 14 states plus the District of Columbia with marriage equality, and civil union or strong domestic partnership laws in 5 others.
With the wind to its back, this is how the marriage equality movement has to turn the map purple: activists have to lobby their state senates, houses of representatives, and general assemblies to enact new laws and overturn state Defense of Marriage Acts one at a time, one by one until there’s something like 25 of them. At this rate, sometime around 2020 or 2025 there will probably be a majority of states, representing a clear majority of the population, with some form of either same-sex marriage or civil unions on the books. It’s only a matter of time.

When that time comes that the facts on the ground have shown that there is a consensus among the states and among the American people that allowing same-sex couples to marry is a matter of fundamental rights, and that those holdout states who are the outliers, then would be the proper time to go in for the kill. Only when it’s apparent that this new concept of a constitutional right to same-sex marriage has ripened and is ready to be picked will it be time for Ted Olson and David Boies to argue before the Supreme Court that a cute lesbian couple in Chattanooga denied a civil marriage license are being denied their fundamental rights guaranteed by the penumbras of the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. At that point, what is indeed a somewhat radical interpretation of the Constitution might look rather matter-of-fact.
Marriage rights advocates have their heart in the right place, but they (we) all have to be patient. As Dr. King once said, “the arc of history is long, but it bends toward justice.”
It’s only a matter of time until the map looks like this: