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Judge Reinhardt's Incredibly Ignorant Decision About the Second Amendment
Once you see what I have say, you won't find that an excessively nasty remark. A case that he cites directly says that only weapons suitable for military use are constitutionally protected for individuals to possess. The decision is here.
On p. 12:There are three principal schools of thought that form the basis for the debate. The first, which we will refer to as the “traditional individual rights” model, holds that the Second Amendment guarantees to individual private citizens a fundamental right to possess and use firearms for any purpose at all, subject only to limited government regulation. This view, urged by the NRA and other firearms enthusiasts, as well as by a prolific cadre of fervent supporters in the legal academy, had never been adopted by any court until the recent Fifth Circuit decision in United States v. Emerson, 270 F.3d 203, 227 (5th Cir. 2001), cert. denied, 122 S. Ct. 2362 (2002).
Utterly wrong. There are plenty of decisions of state supreme courts that are very clear that the Second Amendment protects an individual right, such as Nunn v. State, 1 Ga. 243, 246, 250, 251 (1846):The language of the second amendment is broad enough to embrace both Federal and State governments—nor is there anything in its terms which restricts its meaning... Is this a right reserved to the States or to themselves? Is it not an unalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disenfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.
The Georgia Supreme Court made a decision that the Second Amendment protected an individual right. One might make the case that they were incorrect that it was a limitation on state laws, but to claim that the Emerson decision was the first to make the claim that the Second Amendment protected an individual right is ignorant. Similarly, the Louisiana Supreme Court found the Second Amendment to be a limitation on state laws, even though it upheld a ban on concealed carrying of deadly weapons:
...
Questions under some of these amendments, it is true, can only arise under the laws and Constitution of the United States. But there are other provisions in them, which were never intended to be thus restricted, but were designed for the benefit of every citizen of the Union in all courts, and in all places; and the people of the several States, in ratifying them in their respective State conventions, have virtually adopted them as beacon-lights to guide and control the action of their own legislatures, as well as that of Congress.
...
The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all of this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation!
...
We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void...This law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man’s right to carry arms (to use its own words), “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassination.
State v. Chandler, 5 La. An. 489, 490 (1850). It would have greatly shortened this decision to just to say, "The Second Amendment doesn't protect an individual right."
Here's another one, from the Idaho Supreme Court, In Re Brickey, 8 Ida. 597, 70 Pac. 609, 101 Am. St. Rep. 215, 216 (1902):The second amendment to the federal constitution is in the following language: “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.” The language of section 11, article 1 of the constitution of Idaho is as follows: “the people have the right to bear arms for their security and defense, but the legislature shall regulate the exercise of this right of law.” Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages. The legislature may, as expressly provided in our state constitution, regulate the exercise of this right, but may not prohibit it. A statute prohibiting the carrying of concealed deadly weapons would be a proper exercise of the police power of the state. But the statute in question does not prohibit the carrying of weapons concealed, which is of itself a pernicious practice, but prohibits the carrying of them in any manner in cities, towns, and villages. We are compelled to hold this statute void.
Clear enough? There are plenty of surprisingly recent decisions that, while not as detailed in their analysis, demonstrate that the individual rights view has been the dominant one throughout American history, and Reinhardt's view is actually modern and rare, such as this Illinois Supreme Court decision, People v. Liss, 406 Ill. 419, 94 N.E.2d 320, 322, 323 (1950):The second amendment to the constitution of the United States provides the right of the people to keep and bear arms shall not be infringed. This, of course, does not prevent the enactment of a law against carrying concealed weapons, but it does indicate it should be kept in mind, in the construction of a statute of such character, that it is aimed at persons of criminal instincts, and for the prevention of crime, and not against use in the protection of person or property. There is not an iota of evidence that the defendant was a criminal, or had associated with criminals, or that he came within any of the specific provisions against carrying a deadly weapon.
Or this one, from the Montana Supreme Court, overturning a conviction for assault on a peace officer, in State v. Nickerson, 126 Mont. 157, 166 (1952), based on both the federal and state constitutional provisions:The law of this jurisdiction accords to the defendant the right to keep and bear arms and to use same in defense of his own home, his person and property.
Go here for a more complete list of the decisions of which Reinhardt seems blissfully unaware.
The second amendment to the Constitution of the United States provides that “the right of the people to keep and bear arms, shall not be infringed.”
The Constitution of Montana provides: “The right of every person to keep or bear arms in defense of his own home, person and property, ... shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.” Art. II, sec. 13, Const. of Montana.
Reinhardt's decision argues that alongside the "traditional individual rights" model, there is also a "limited individual rights" view (the right to possess arms "insofar as such possession bears a reasonable relationship to militia service." From where does this "limited individual rights" model come? Reinhardt disposes of this model, asserting that it is "contrary not only to Miller but to the basic purpose and effect of of the Second Amendment." This just shows Reinhardt's ignorance. This "limited individual rights" model is the essence of Miller--that an individual's right to possess arms is only guaranteed to the extent that those arms might be useful for maintenance of a militia. And where did Miller get this model? From Aymette v. State (Tenn. 1840), a case that Reinhardt cites on p. 34. Once you see what Aymette has to say, you will find yourself wondering if Reinhardt went over it a bit too quickly--because it directly contradicts Reinhardt's position about the individual right nature of the Second Amendment, and because it finds only one category of weapons constitutionally protected: the category in dispute in the decision that Reinhardt has written.
What does Aymette has to say about the Second Amendment and the nature of the right? Keep in mind that Aymette is one of the most restrictive decisions about the right to keep and bear arms of the entire nineteenth century. It argues that only arms appropriate to militia duty were constitutionally protected, and arms that were not suitable (in this case, a Bowie knife) could be completely prohibited. In Aymette v. State, 2 Hump. (21 Tenn.) 154, 156, 157, 158, 159 (1840), the Tennessee Supreme Court discussed the history of the state right to keep and bear arms provision by tracking its origins in the Second Amendment and the English Bill of Rights (1689):This declaration, although it asserts the right of the Protestants to have arms, does not extend the privilege beyond the terms provided in the act of Charles II, before referred to. "They may have arms," says the Parliament, "suitable to other condition and as allowed by law." The law, we have seen, only allowed persons of certain rank to have arms, and consequently this declaration of right had reference to such only. It was in reference to these facts, and to this state of the English law, that the 2d section of the amendments to the constitution of the United States was incorporated into that instrument. It declares that, "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."
After asserting that the purpose was a collective rising, based on the phrase "for the common defence" (language that was considered for the Second Amendment, but not adopted), Aymette goes on to assert that this right is individual in nature, even if for a collective purpose:
In the same view the section under consideration of our own bill of rights was adopted.
The evil that was produced by disarming the people in the time of James II. was that the king, by means of a standing army quartered among the people, was able to overawe them, and compel them to submit to the most arbitrary, cruel and illegal measures. Whereas, if the people had retained their arms, they would have been able, by a just and proper resistance to those oppressive measures, either to have caused the king to respect their rights, or surrender (as he was eventually compelled to do) the government into other hands. No private defence was contemplated, or would have availed anything. If the subjects had been armed, they could have resisted the payment of excessive fines, or the infliction of illegal and cruel punishments.... This declaration of right is made in reference to the fact before complained of, that the people had been disarmed, and soldiers had been quartered among them contrary to law. The complaint was against the government. The grievances to which they were thus forced to submit were for the most part of a public character, and could have been redressed only by the people rising up for their common defence, to vindicate their rights.As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.
Now, remember, what was Reinhardt's decision about? Whether "assault weapons"--that is to say, weapons similar to those used by the world's militaries--may be prohibited for private ownership. And yet Reinhardt repeatedly cites Aymette to make his case--when even Aymette asserts that this is an individual right to own weapons suitable for military use!
Reinhardt either didn't read Aymette, or didn't care that it directly contradicted him.
I could go on at great length on the many errors contained in Reinhardt's decision. I can see why the 9th Circus Court of Appeals gets overturned so much.
Radio Interview Sunday With Charles Heller, KJLL AM 1330 Tucson
Charles Heller is having me on his show Sunday, December 8, starting at 11:00 AM Mountain Time, to discuss the 9th Circus Court of Appeals decision about the 2nd Amendment. It's a call-in show.
More Evidence That Judge Reinhardt Should Be Counterbalanced On The Ninth Circuit With Judge Eugene Volokh
How Appealing! points out that Judge Reinhardt's decision apparently took a swipe at the Federalist Society in one of the footnotes to his recent 9th Circus Court of Appeals decision:We use the terms "Federalist" and "Anti-Federalist" as they were originally intended and as they plainly read, as opposed to the current paradoxical distortions of the terms. For some inexplicable reason, the term "Federalist" is currently used to refer to those who favor devolving fundamentally national functions upon the individual states, rather than to those who favor granting to the national government the powers necessary to operate effectively and to promote the social compact that underlies American democracy.
Reinhardt doesn't understand (or pretends not to understand) that the distinction between a "federal" government and a unitary government is that all power resides in a unitary government. Whatever powers a unitary government grants to subsidiary governments are grants, and can be revoked at any time. In a federal government, the national government has some powers, and the state governments have some powers. That division of powers is not because the national government is being nice, but because the U.S. Constitution grants some powers to each government.
The Federalists of 1787 were those who wanted a much stronger national government, but they did not intend to eliminate all state governmental powers. Some powers were taken from the states, and given to the national governments; others were left to the states. Antifederalists wanted to preserve the status quo, by which the national government was a creation of the states, and had no authority except that which the states were willing to grant it.
The Federalist Society, as near as I can tell, wants to get back to that division of powers that our Constitution created. It is an effort to return us to the federal government that the U.S. Constitution created, one where the national government's powers are somewhat limited. One can disagree with the notion of a more limited national government without opposing a federal government.
It seems that Reinhardt believes that all powers should be in the hands of the government in Washington--otherwise his remarks make very little sense. He claims that the Federalist Society's members "favor devolving fundamentally national functions upon the individual states, rather than to those who favor granting to the national government the powers necessary to operate effectively and to promote the social compact that underlies American democracy." The Federalist Society, as near as I can tell, wants powers returned to the states that were originally there at the time the "social compact that underlies American democracy" put them there. Is Reinhardt really this unaware of the history of our Constitution, and the division of govermental powers? No wonder he can't seem to write an sensible decision about the Second Amendment.
A Few More Criticisms of the Ninth Circus Court of Appeals Ruling About the Second Amendment
I pointed out here that Judge Reinhardt pretended that there was little in the way of precedent concerning the Second Amendment. One must conclude that Reinhardt hasn't bothered to read much of the literature in support of the individual rights view, or he would be aware of it. ("If I close my eyes long enough, maybe it will all disappear.")
Professor Volokh has done a nice job of giving a short list of reasons not to take Reinhardt's decision very seriously, largely because of the important pieces of historical evidence that Reinhardt leaves out. (Of course, if the goal isn't truth, but politics, what Reinhardt leaves out isn't surprising.)
A few people have pointed out that Reinhardt's decision cites Michael Bellesiles, a less than trustworthy source, in several places. At least one of those citations is, shall we say, quite arguable. Footnote 37 of Reinhardt's decision says:During the period that the Articles were in effect, both George Washington and Henry Knox, who was to become the nation’s first Secretary of War in the Washington Administration, urged the creation of a standing national military force, to no avail. H. Richard Uviller & William G. Merkel, The Second Amendment in Context: The Case of the Vanishing Predicate, 76 CHI.-KENT L. REV. 403, 411-13 (2000). Washington in particular felt that the need was acute; in 1783 he wrote a document entitled Sentiments On A Peace Establishment, in which he recommended establishing a national militia that would exist along with those maintained by the individual states. Subsequently, he wrote to John Adams in the wake of Shays’s Rebellion that because of the lack of a unified national military force, “[w]e are fast verging to anarchy and confusion!” Letter from George Washington to James Madison (Nov. 5, 1786), in 29 THE WRITINGS OF GEORGE WASHINGTON, 1745-1799, at 51 (John Clement Fitzpatrick ed., 1931) (quoted in Michael A. Bellesiles, The Second Amendment in Action, 76 CHI.-KENT L. REV. 61, 65 (2000)).
So what did Washington actually write to Madison? Fortunately, Washington's letters are available online, and you can look this up pretty quickly:The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor.
Did Reinhardt misquote or misrepresent what Bellesiles said? No. Here's what Bellesiles's paper actually said:
Mount Vernon, November 5, 1786.
My dear Sir: I thank you for the communications in your letter of the first instt. The decision of the House on the question respecting a paper emission, is portentous I hope, of an auspicious Session. It may certainly be classed among the important questions of the present day; and merited the serious consideration of the Assembly. Fain would I hope, that the great, and most important of all objects, the foederal governmt., may be considered with that calm and deliberate attention which the magnitude of it so loudly calls for at this critical moment. Let prejudices, unreasonable jealousies, and local interest yield to reason and liberality. Let us look to our National character, and to things beyond the present period. No morn ever dawned more favourably than ours did; and no day was ever more clouded than the present! Wisdom, and good examples are necessary at this time to rescue the political machine from the impending storm. Virginia has now an opportunity to set the latter, and has enough of the former, I hope, to take the lead in promoting this great and arduous work. Without some alteration in our political creed, the superstructure we have been seven years raising at the expence of so much blood and treasure, must fall. We are fast verging to anarchy and confusion!
A letter which I have just received from Genl Knox, who had just returned from Massachusetts (whither he had been sent by Congress consequent of the commotion in that State) is replete with melancholy information of the temper, and designs of a considerable part of that people. Among other things he says,
there creed is, that the property of the United States, has been protected from confiscation of Britain by the joint exertions ofall, and therefore ought to be thecommon property of all. And he that attempts opposition to this creed is an enemy to equity and justice, and ought to be swept from off the face of the Earth.
again
They are determined to anihillate all debts public and private, and have Agrarian Laws, which are easily effected by the means of unfunded paper money which shall be a tender in all cases whatever.
He adds
The numbers of these people amount in Massachusetts to about one fifth part of several populous Counties, and to them may be collected, people of similar sentiments from the States of Rhode Island, Connecticut, and New Hampshire, so as to constitute a body of twelve or fifteen thousand desperate, and unprincipled men. They are chiefly of the young and active part of the Community.
How melancholy is the reflection, that in so short a space, we should have made such large strides towards fulfilling the prediction of our transatlantic foe! "leave them to themselves, and their government will soon dissolve." Will not the wise and good strive hard to avert this evil? Or will their supineness suffer ignorance, and the arts of self-interested designing disaffected and desperate characters, to involve this rising empire in wretchedness and contempt? What stronger evidence can be given of the want of energy in our governments than these disorders? If there exists not a power to check them, what security has a man for life, liberty, or property? To you, I am sure I need not add aught on this subject, the consequences of a lax, or inefficient government, are too obvious to be dwelt on. Thirteen Sovereignties pulling against each other, and all tugging at the foederal head will soon bring ruin on the whole; whereas a liberal, and energetic Constitution, well guarded and closely watched, to prevent incroachments, might restore us to that degree of respectability and consequence, to which we had a fair claim, and the brightest prospect of attaining. With sentiments of the sincerest esteem etc.46
[Note 46: From a facsimile in theWashington-Madison Papers sales catalogue (The McGuire Collection), 1892.] Though the rebels had not exactly distinguished themselves in the martial
Now, Washington certainly mentions the Shays's Rebellion in this letter--after discussing "anarchy and confusion!" But there isn't any discussion of "because of the lack of a unified national military force." One might at least as fairly assume that Washington was referring to the problems of finances and the previous inability of Congress to vote for a "paper emission." Washington was definitely a supporter of a standing army, having found militias to be a "week reed" upon which to rely. But this letter is quite a bit more ambiguous than either Bellesiles's representation of it, or Reinhardt's representation of Bellesiles.
arts, their uprising had far-reaching consequences. George Washington wrote to James Madison that "we are fast verging to anarchy and
confusion!"
I Must Be Doing Something Right
Over on How Appealing!, one of Mr. Bashman's fans castigates my remarks about the Newdow decision as:I read Clayton's comments today and he comes off like an ideologue of the right. The First Amendment forbids elevating religion over nonreligion, and that is what the words "under God" are (reasonably) said to do. Focusing on one aspect of an opinion and then using it to argue that evolution conflicts with Christian beliefs and is thus also a first amendment problem is stupid whether said earnestly or ironically.
What can I say? If someone calls me an ideologue and then says, "The First Amendment forbids elevating religion over nonreligion" it doesn't say much for either his reading skills, or his knowledge of history.
The Ninth Circus Court of Appeals Once Again Demonstrates Its Scholarship
SILVEIRA v. LOCKYER, in which a suit against California's assault weapons law asserted that the Second Amendment protected an individual right. Judge Reinhardt's opinion is one that only a gun control advocate could have written.Despite the increased attention by commentators and political interest groups to the question of what exactly the Second Amendment protects, with the sole exception of the Fifth Circuit’s Emerson decision there exists no thorough judicial examination of the amendment’s meaning.
Except, of course, that this is incorrect. There is an extensive set of decisions which examine the meaning of the Second Amendment, some in considerable detail, but these decisions have been overwhelmingly in state supreme courts.
The following is a list of state supreme court decisions that have, when an individual appealed to the Second Amendment's protections, the court, rather than deny an individual right was protected, did one of the following:
1. Struck down a gun control law;
2. Claimed that the Second Amendment was only was a limitation on the federal government with respect to individual rights, but did not restrict state laws;
3. Claimed the Second Amendment only restricted the federal government, but struck down a law based on a state RKBA provision;
4. Found some other basis for upholding a law, without denying the claim that the Second Amendment protected an individual right;
5. Found that the Second Amendment protected an individual right, but found some method to harmonize a gun control law based on the idea that this was "reasonable regulation," or that the weapons regulated were not protected.
In short, these decisions refused to make this silly claim that the Second Amendment doesn't protect an individual right.
NOTE BENE: I do NOT claim that every decision on the list below found an absolute right to keep and bear arms, or an unlimited right. In some of the decisions, the court has clearly found a way to avoid directly striking down a law by one of the items listed 2-5 above.
I have also excluded a number of appellate court decisions -- but about as many from all three lists below. I also haven't included any of the federal decisions, most of which acknowledge explicitly or implicitly that the Second Amendment protects an individual right.
Aymette v. State, 2 Hump. (21 Tenn.) 154 (1840)
State v. Newsom, 5 Iredell 181, 27 N.C. 250 (1844)
Nunn v. State, 1 Ga. 243 (1846)
State v. Chandler, 5 La. An. 489 (1850)
Smith v. State, 11 La. An. 633 (1856)
State v. Jumel, 13 La. An. 399 (1858)
Cockrum v. State, 24 Tex. 394 (1859)
Andrews v. State, 3 Heisk. (50 Tenn.) 165 (1871)
Fife v. State, 31 Ark. 455, 25 Am. Rep. 556 (1876)
English v. State, 35 Tex. 473 (1872)
State v. Duke, 42 Tex. 455 (1875)
State v. Hill, 53 Ga. 472 (1874)
State v. Wilforth, 74 Mo. 528 (1881)
State v. Workman, 35 W.Va. 367 (1891)
In Re Brickey, 8 Ida. 597, 70 Pac. 609, 101 Am. St. Rep. 215 (1902)
Strickland v. State, 137 Ga. 1, 72 S.E. 260 (1911)
People v. Persce, 204 N.Y. 397 (1912)
State v. Keet, 269 Mo. 206, 190 S.W. 573 (1916)
State v. Kerner, 181 N.C. 574, 107 S.E. 222 (1921)
State v. Nieto, 101 Ohio St. 409, 130 N.E. 663 (1920)
State v. Woodward, 58 Ida. 385, 74 P.2d 92 (1937)
State v. Hart, 66 Ida. 217, 157 P.2d 72 (1945)
Watson V. Stone, 4 So.2d 700 (Fla. 1941)
People v. Liss, 406 Ill. 419, 94 N.E.2d 320 (1950)
State v. Nickerson, 126 Mont. 157 (1952)
In re Rameriz, 193 Cal. 633, 226 P. 914 (1924)
Application of Grauling, 17 Misc.2d 215, 183 N.Y.S.2d 654 (1959)
Burton v. Sills, 99 N.J.Super. 459 (1968)
Grimm v. City of New York, 56 Misc.2d 525, 289 N.Y.S.2d 358 (1968)
Guida v. Dier, 84 Misc.2d 110, 375 N.Y.S.2d 826 (1975)
Rinzler v. Carson, 262 So.2d 661 (Fla. 1972)
Mosher v. City of Dayton, 48 Ohio St.2d 243, 358 N.E.2d 540 (1976)
Kellogg v. City of Gary, 462 N.E.2d 685 (Ind. 1990)
State v. Kessler, 289 Or. 359 (1980)
City Of Princeton v. Buckner, 377 S.E.2d 139, 142, 143 (W.Va. 1988)
The following decisions strongly implied that an individual right was
protected by the Second Amendment:
State v. Angelo, 3 N.J.Misc. 1014, 130 A. 458 (1925)
State v. Sanne, 116 N.H. 583, 364 A.2d 630 (1976)
Rabbitt v. Leonard, 36 Conn. Sup. 108 (1979)
The following state supreme court decisons have denied the Second
Amendment protects an individual right:
State v. Buzzard, 4 Ark. 18 (1842)
Harris v. State, 432 P.2d 929 (Nev. 1967)
State v. Vlacil, 645 P.2d 677 (Utah 1982) (but see Justice Oaks' concurring opinion)
Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976)
Application of Atkinson, 291 N.W.2d 396 (Minn. 1980)
Unsurprisingly, Reinhardt quotes at length from the one-sided Chicago-Kent Law Review symposium issue published two years ago in which only those opposed to the individual rights view were invited--and paid for their articles. (This is almost unheard in scholarly publications.) Of course, Reinhardt cites the well-known soon-to-be former Professor Michael Bellesiles for support for the collective rights view, apparently unaware or unconcerned about Bellesiles's scholarly integrity problem.
This is the sort of decision I expect from the Ninth Circus Court of Appeals: long on verbal sleight of hand, short on examination of original sources, very trusting of gun control advocate opinions.
Amusing Description of How English Expands Its Vocabulary
I found this in the newsgroup sci.astro.amateur, as a signature line:"The problem with defending the purity of the English language is that English is about as pure as a cribhouse whore. We don't just borrow words; on occasion, English has pursued other languages down alleyways to beat them unconscious and rifle their pockets for new vocabulary." [James D. Nicoll]
That Pledge of Allegiance Dispute
The Ninth Circus Court of Appeals continues to demonstrate why it is not only the most overturned circuit, but so often overturned 9-0 by the U.S. Supreme Court--showing that the problems of Ninth Circus judges isn't just that they are liberal--or they would be getting at least a few 5-4 or 7-2 decisions on the overturns. The decision (thanks to How Appealing! for the pointer) makes the claim:When school teachers lead a recitation of the Pledge of Allegiance according to school district policy, they present a message by the state endorsing not just religion generally, but a monotheistic religion organized “under God.” While Newdow cannot expect the entire community surrounding his daughter to participate in, let alone agree with, his choice of atheism and his daughter’s exposure to his views, he can expect to be free from the government’s endorsing a particular view of religion and unconstitutionally indoctrinating his impressionable young daughter on a daily basis in that official view. The pledge to a nation “under God,” with its imprimatur of governmental sanction, provides the message to Newdow’s young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father’s beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom.
Aside from the fact that the same Congress that passed the First Amendment also engaged in gross examples of endorsing a similarly monotheistic belief, I have this one question for Judge Alfred T. Goodwin, the author of this decision: will you take this same protective view of minority rights when California schools endorse points of view that are directly in conflict with the beliefs of Christian parents?
If a biology class teaches evolution as fact (as public schools do, at least in California), they are necessarily providing the message to children of fundamentalists that their parents hold beliefs that "are those of an outsider, and necessarily inferior to what she is exposed to in the classroom." It is not enough to claim that the teaching of evolution isn't a religious belief. Necessarily, it is expressing a governmental view about religion, by the simple fact that evolution (at least as it is taught in California schools) directly contradicts the religious beliefs of a significant minority of parents.
The liberals can't have it both ways. If "under God" is denigrating the values of non-monotheists, and is therefore a violation of the First Amendment, then teaching evolution in the way that California schools teach it is denigrating the religious beliefs of Creationists.
I don't think it is either possible or wise to create a value-free school system. I just want liberals who seem intent on this to either admit that they aren't interested in value-free schooling (it's really just hostility towards Christianity), or be consistent, and make it value-free in every area that involves religion. That they aren't going to ever do.
Just When You Thought It Couldn't Get Any More Seamy...
More stuff drains out of the the Archdiocese of Boston cesspool. This story describes contents of the personnel files, including cocaine use by priests, apparently as part of a swap for sex with a 15 year old, and this:The files included those for the Rev. Robert Meffan, who allegedly recruited girls in the late 1960s to become nuns and then sexually abused them while assigned in Weymouth, Mass., according to 1993 letters from Sister Catherine Mulkerrin to her boss, the Rev. John McCormack, who was a top aide to Law and is currently the bishop in Manchester, N.H.
According to the plaintiff's attorneys, Cardinal Law was still transferring "problem priests" to deal with accusations until very recently.
Meffan allegedly would tell the girls to perform sexual acts as a way of progressing with their religious studies. He also allegedly participated in sexual acts with four girls at the same time in a Cape Cod rental, one of the girls told Mulkerrin, according to a 1993 memo.
"They were all young girls planning to be nuns," said attorney Roderick MacLeish Jr., who represents 247 plaintiffs among dozens of lawsuits against the archdiocese.
It is becoming apparent that the problems were not just a few very corrupt priests, but a hierarchy that did its best to cover up sexual abuse. Even worse, this isn't an obscure problem of which the Pope was unaware. At this point, the problems have been festering for so long, and the Archdiocese of Boston has been working so hard and so long to protect itself, that the Pope can't claim to not know that there was something terribly wrong.
The Catholic Church's moral authority is gone.
Loving v. Virginia, Equal Protection, and Homosexual Marriage
Andrew Sullivan has an item trying to argue that the situation of Loving v. Virginia (1967), in which the U.S. Supreme Court struck down Virginia's prohibition on interracial marriage, is analogous to the bans on homosexual marriage.
No, it is not analogous. Loving was decided based on equal protection, because the 14th Amendment limited the authority of the states to discriminate based on race. The same reasoning does not apply to a ban on homosexual marriage, because the 14th Amendment does not protect against discrimination based on sexual orientation.
A statute like Idaho's prohibition on "the infamous crime against nature," might be challengeable because it applies equally to all, and thus criminalizes sex between husband and wife. The courts have found sexual relations between husband and wife to be protected as a privacy right in Griswold v. Connecticut (1965), but Idaho's statute would certainly survive an equal protection claim, since it does not distinguish between homosexual and heterosexual sex. The courts could carve out an exception to this statute for a married couple, but an unmarried couple, or a same sex couple, could not use such an argument. (Unless, of course, the Supreme Court just decided to ignore their own precedents and the history of original intent.)
Limits of Governmental Power
Instapundit has a link to both the news that the U.S. Supreme Court is going to hear an appeal trying to strike down Texas's sodomy law, and to a law review article by Dave Kopel and Glenn Reynolds arguing that the authority of the states to regulate actions under the police power should be quite limited: "that legitimate regulation existed only to prevent concrete harm to specified interests." Sodomy laws are within that category of laws that do not "prevent harm to specified interests," Kopel and Reynolds argue, and should therefore be struck down.
Now, I think very highly of both Dave Kopel and Glenn Reynolds. I am no fan of democracy (and remember, overturning a sodomy law is a slap in the face of democracy), but I believe that they are just wrong on this notion of what the Framers intended to be the limits of the police powers of the state. The federal government's authority under the new Constitution was supposed to be limited, both by what few powers were expressly granted, and by the limitations of the Bill of Rights--but state governments were limited only by what their state constitutions specified, and by the powers expressed taken away from them by the U.S. Constitution. Kopel and Reynolds quote from Joseph Story, Salmon P. Chase, James Iredell, Thomas Cooley, and even Ernst Freund (one of the advocates of nearly unlimited police powers of the state) to make their case.
That all of these prominent jurists argued that there were appropriate limits on the police power, however, doesn't demonstrate that the state's police powers were limited to the very narrow, almost libertarian utopia that Reynolds and Kopel argue for here. One of the strongest pieces of evidence for what the Framers believed about the power of the state is to look at the laws that were in effect in 1791. In some cases, later constitutional changes, such as the 14th Amendment, have extended the protections of the Bill of Rights to the states (though judges keep resisting full incorporation). But looking at the state laws in effect in 1791 as an indicator of what was understood to be the police powers of the state argues quite specifically for all sorts of laws regulating sexual morality.
In Griswold v. Connecticut (1965), the U.S. Supreme Court did strike down a state law banning the providing of contraceptive devices to a married couple, but that was based on the privacy right of a married couple. While the argument Justice Douglas used wasn't terribly strong, the argument based on what laws were in effect in 1791 would have been a valid basis for this decision. The sodomy laws of the Revolutionary period are an argument that the state's police powers, while limited in some specific areas, are not subject to arbitrary overturn by the courts.
The question of whether sodomy laws are a good idea is completely separate from the question of whether they are constitutional. I don't see a strong pragmatic argument for such laws, and I do see a strong argument against them (as long as you don't go down the path that California has, where California Penal Code sec. 286 has made it only a misdemeanor for adults to sodomize children 14-18 years of age).
I do have a problem with this misreading of American history that makes the Framers libertarians. They really weren't. They weren't doctrinaire free marketeers (though they certainly leaned strongly that direction). They weren't promoters of "anything goes" morality; quite the opposite. The notion of "every man for himself" often caused considerable grief to the Framers, who tended to think in more republican terms of virtue and commonweal.
Moral Bankruptcy Filing Considered
The Archdiocese of Boston is considering filing for bankruptcy to get out from under the enormous civil judgments coming down from the sexual abuse cases. If this were a corporation trying to get out from under civil suits for injuries caused by a defective product, I would be upset, but when an institution that purports to represent Jesus Christ here on Earth does that, I get really, really angry. It isn't like these suits could not have been forseen; the data that has been dripping out of this scandal makes it clear that the archdiocese knew full well that they had child molesting priests, or should have known this. (When you find out that one of your priests was a founder of the North American Man-Boy Love Association, most sensible people would ask a few questions.)
This is despicable. Even if the Archdiocese of Boston uses bankruptcy to avoid paying off the many claims against it, this is only a clever legal trick. The problem of the Catholic Church looking the other way with respect to child molesting priests isn't just a problem of one archdiocese. The Church as a whole is morally obligated, and using bankruptcy to avoid claims wipes out any moral authority that the Catholic Church has.
