"A Whiter Shade of Pale": Sense and Nonsense — The Pursuit of Perfection in Law and Politics

The Federalist Society University of Chicago Law School April 20, 2000, Thursday 12:15 p.m.

Thank you. I want to thank Mr. Schlangen (fondly known as Charlie to my secretary) for extending the invitation and the Federalist Society both for giving me my first opportunity to visit the City of Chicago and for being, as Mr. Schlangen assured me in his letter of invitation, "a rare bastion (nay beacon) of conservative and libertarian thought." That latter notion made your invitation well-nigh irresistible. There are so few true conservatives left in America that we probably should be included on the endangered species list. That would serve two purposes: Demonstrating the great compassion of our government and relegating us to some remote wetlands habitat where — out of sight and out of mind — we will cease being a dissonance in collectivist concerto of the liberal body politic.

In truth, they need not banish us to the gulag. We are not much of a threat, lacking even a coherent language in which to state our premise. [I should pause here to explain the source of the title to this discussion. Unless you are a very old law student, you probably never heard of "A Whiter Shade of Pale."] "A Whiter Shade of Pale" is an old (circa 1967) Procol Harum song, full of nonsensical lyrics, but powerfully evocative nonetheless. Here's a sample:

"We skipped the light fandango turned cartwheels cross the floor I was feeling kinda seasick but the crowd called out for more.

The room was humming harder as the ceiling flew away. When we called out for another drink the waiter brought a tray."

There is something about this that forcibly reminds me of our current political circus. The last verse is even better.

"If music be the food of love then laughter is its queen and likewise if behind is in front then dirt in truth is clean...."

Sound familiar? Of course Procol Harum had an excuse. These were the 60's after all, and the lyrics were probably drug induced. What's our excuse?

One response might be that we are living in a world where words have lost their meaning. This is certainly not a new phenomenon. It seems to be an inevitable artifact of cultural disintegration. Thucydides lamented the great changes in language and life that succeeded the Pelopennesian War; Clarendon and Burke expressed similar concerns about the political transformations of their own time. It is always a disorienting experience for a member of the old guard when the entire understanding of the old world is uprooted. As James Boyd White expresses it: "[I]n this world no one would see what he sees, respond as he responds, speak as he speaks,"1 and living in that world means surrender to the near certainty of central and fundamental changes within the self. "One cannot maintain forever one's language and judgment against the pressures of a world that works in different ways," for we are shaped by the world in which we live.2

This is a fascinating subject which we do not have time to explore more thoroughly. Suffice it to say that this phenomenon accounts for much of the near hysterical tone of current political discourse. Our problems, however, seem to go even deeper. It is not simply that the same words don't have the same meanings; in our lifetime, words are ceasing to have any meaning. The culture of the word is being extinguished by the culture of the camera. Politicians no longer have positions they have photo-ops. To be or not to be is no longer the question. The question is: how do you feel.

Writing 50 years ago, F.A. Hayek warned us that a centrally planned economy is "The Road to Serfdom."3 He was right, of course; but the intervening years have shown us that there are many other roads to serfdom. In fact, it now appears that human nature is so constituted that, as in the days of empire all roads led to Rome; in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.

It is my thesis today that the sheer tenacity of the collectivist impulse — whether you call it socialism or communism or altruism — has changed not only the meaning of our words, but the meaning of the Constitution, and the character of our people.

Government is the only enterprise in the world which expands in size when its failures increase. Aaron Wildavsky gives a credible account of this dynamic. Wildavsky notes that the Madisonian world has gone "topsy turvy" as factions, defined as groups "activated by some common interest adverse to the rights of other citizens or to the permanent and aggregate interests of the community,"4 have been transformed into sectors of public policy. "Indeed," says Wildavsky, "government now pays citizens to organize, lawyers to sue, and politicians to run for office. Soon enough, if current trends continue, government will become self-contained, generating (apparently spontaneously) the forces to which it responds."5 That explains how, but not why. And certainly not why we are so comfortable with that result.

America's Constitution provided an 18th Century answer to the question of what to do about the status of the individual and the mode of government. Though the founders set out to establish good government "from reflection and choice,"6 they also acknowledged the "limits of reason as applied to constitutional design,"7 and wisely did not seek to invent the world anew on the basis of abstract principle; instead, they chose to rely on habits, customs, and principles derived from human experience and authenticated by tradition.

"The Framers understood that the self-interest which in the private sphere contributes to welfare of society — both in the sense of material well-being and in the social unity engendered by commerce — makes man a knave in the public sphere, the sphere of politics and group action. It is self-interest that leads individuals to form factions to try to expropriate the wealth of others through government and that constantly threatens social harmony."8

Collectivism sought to answer a different question: how to achieve cosmic justice — sometimes referred to as social justice — a world of social and economic equality. Such an ambitious proposal sees no limit to man's capacity to reason. It presupposes a community can consciously design not only improved political, economic, and social systems but new and improved human beings as well.

The great innovation of this millennium was equality before the law. The greatest fiasco — the attempt to guarantee equal outcomes for all people. Tom Bethell notes that the security of property — a security our Constitution sought to ensure — had to be devalued in order for collectivism to come of age. The founders viewed private property as "the guardian of every other right."9 But, "by 1890 we find Alfred Marshall, the teacher of John Maynard Keynes making the astounding claim that the need for private property reaches no deeper than the qualities of human nature."10 A hundred years later came Milton Friedman's laconic reply: " 'I would say that goes pretty deep.'"11 In between, came the reign of socialism. "Starting with the formation of the Fabian Society and ending with the fall of the Berlin Wall, its ambitious project was the reformation of human nature. Intellectuals visualized a planned life without private property, mediated by the New Man."12 He never arrived. As John McGinnis persuasively argues: "There is simply a mismatch between collectivism on any large and enduring scale and our evolved nature. As Edward O. Wilson, the world's foremost expert on ants, remarked about Marxism, 'Wonderful theory. Wrong species.'"13

Ayn Rand similarly attributes the collectivist impulse to what she calls the "tribal view of man."14 She notes, "[t]he American philosophy of the Rights of Man was never fully grasped by European intellectuals. Europe's predominant idea of emancipation consisted of changing the concept of man as a slave to the absolute state embodied by the king, to the concept of man as the slave of the absolute state as embodied by 'the people' — i.e., switching from slavery to a tribal chieftain into slavery to the tribe."15

Democracy and capitalism seem to have triumphed. But, appearances can be deceiving. Instead of celebrating capitalism's virtues, we offer it grudging acceptance, contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism. We do not conclude that socialism suffers from a fundamental and profound flaw. We conclude instead that its ends are worthy of any sacrifice — including our freedom. Revel notes that Marxism has been "shamed and ridiculed everywhere except American universities" but only after totalitarian systems "reached the limits of their wickedness."16

"Socialism concentrated all the wealth in the hands of an oligarchy in the name of social justice, reduced peoples to misery in the name of shar[ed] resources, to ignorance in the name of science. It created the modern world's most inegalitarian societies in the name of equality, the most vast network of concentration camps ever built [for] the defense of liberty."17

Revel warns: "The totalitarian mind can reappear in some new and unexpected and seemingly innocuous and indeed virtuous form. [¶]... [I]t ... will [probably] put itself forward under the cover of a generous doctrine, humanitarian, inspired by a concern for giving the disadvantaged their fair share, against corruption, and pollution, and 'exclusion.'"18

Of course, given the vision of the American Revolution just outlined, you might think none of that can happen here. I have news for you. It already has. The revolution is over. What started in the 1920's; became manifest in 1937; was consolidated in the 1960's; is now either building to a crescendo or getting ready to end with a whimper.

At this moment, it seems likely leviathan will continue to lumber along, picking up ballast and momentum, crushing everything in its path. Some things are apparent. Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.

But what if anything does this have to do with law? Quite a lot, I think. In America, the national conversation will probably always include rhetoric about the rule of law. I have argued that collectivism was (and is) fundamentally incompatible with the vision that undergirded this country's founding. The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document. In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the "constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."19 Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me — has annoyed me — for a long time and finally I understand why. It's because the framers did draft the Constitution with a surrounding sense of a particular polity in mind, one based on a definite conception of humanity. In fact as Professor Richard Epstein has said, Holmes's contention is "not true of our [ ] [Constitution], which was organized upon very explicit principles of political theory."20 It could be characterized as a plan for humanity "after the fall."

There is nothing new, of course, in the idea that the framers did not buy into the notion of human perfectibility. And the document they drafted and the nation adopted in 1789 is shot through with provisions that can only be understood against the supposition that humanity's capacity for evil and tyranny is quite as real and quite as great as its capacity for reason and altruism. Indeed, as noted earlier, in politics, the framers may have envisioned the former tendency as the stronger, especially in the wake of the country's experience under the Articles of Confederation. The fear of "factions," of an "encroaching tyranny"; the need for ambition to counter ambition"; all of these concerns identified in the Federalist Papers have stratagems designed to defend against them in the Constitution itself. We needed them, the framers were convinced, because "angels do not govern"; men do.

It was a quite opposite notion of humanity, of its fundamental nature and capacities, that animated the great concurrent event in the West in 1789 — the revolution in France. Out of that revolutionary holocaust — intellectually an improbable melding of Rousseau with Descartes — the powerful notion of abstract human rights was born. At the risk of being skewered by historians of ideas, I want to suggest that the belief in and the impulse toward human perfection, at least in the political life of a nation, is an idea whose arc can be traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937. The latter date marks the triumph of our own socialist revolution. All of these events were manifestations of a particularly skewed view of human nature and the nature of human reason. To the extent the Enlightenment sought to substitute the paradigm of reason for faith, custom or tradition, it failed to provide rational explanation of the significance of human life. It thus led, in a sort of ultimate irony, to the repudiation of reason and to a full-fledged flight from truth — what Revel describes as "an almost pathological indifference to the truth."21

There were obviously urgent economic and social reasons driving not only the political culture but the constitutional culture in the mid-1930's — though it was actually the mistakes of governments (closed borders, high tariffs, and other protectionist measures) that transformed a "momentary breakdown into an international cataclysm."22 The climate of opinion favoring collectivist social and political solutions had a worldwide dimension.

Politically, the belief in human perfectibility is another way of asserting that differences between the few and the many can, over time, be erased. That creed is a critical philosophical proposition underlying the New Deal. What is extraordinary is the way that thesis infiltrated and effected American constitutionalism over the next three-quarters of a century. Its effect was not simply to repudiate, both philosophically and in legal doctrine, the framers' conception of humanity, but to cut away the very ground on which the Constitution rests. Because the only way to come to terms with an enduring Constitution is to believe that the human condition is itself enduring.

For complex reasons, attempts to impose a collectivist political solution in the United States failed. But, the political failure was of little practical concern, in a way that is oddly unappreciated, that same impulse succeeded within the judiciary, especially in the federal high court. The idea of abstract rights, government entitlements as the most significant form of property, is well suited to conditions of economic distress and the emergence of a propertyless class. But the economic convulsions of the late 1920's and early 1930's passed away; the doctrinal underpinnings of West Coast Hotel and the "switch in time" did not. Indeed, over the next half century it consumed much of the classical conception of the Constitution.

So secure were the intellectual underpinnings of the constitutional revolution, so self-evident the ambient cultural values of the policy elite who administered it, that the object of the high court's jurisprudence was largely devoted to the construction of a system for ranking the constitutional weight to be given contending social interests.

In the New Deal/Great Society era, a rule that was the polar opposite of the classical era of American law reigned. A judicial subjectivity whose very purpose was to do away with objective gauges of constitutionality, with universal principles, the better to give the judicial priesthood a free hand to remake the Constitution. After a handful of gross divisions reflecting the hierarchy of the elite's political values had been drawn (personal vs. economic rights, for example), the task was to construct a theoretical system, not of social or cultural norms, but of abstract constitutional weight a given interest merits — strict or rational basis scrutiny. The rest, the identification of underlying, extraconstitutional values, consisted of judicial tropes and a fortified rhetoric.

Protection of property was a major casualty of the Revolution of 1937. The paradigmatic case, written by that premiere constitutional operative, William O. Douglas, is Williamson v. Lee Optical.23 The court drew a line between personal rights and property rights or economic interests, and applied two different constitutional tests. Rights were reordered and property acquired a second class status.24 If the right asserted was economic, the court held the Legislature could do anything it pleased. Judicial review for alleged constitutional infirmities under the due process clause was virtually nonexistent. On the other hand, if the right was personal and "fundamental," review was intolerably strict. "From the Progressive era to the New Deal, [ ] property was by degrees ostracized from the company of rights.25 Something new, called economic rights, began to supplant the old property rights. This change, which occurred with remarkably little fanfare, was staggeringly significant. With the advent of "economic rights," the original meaning of rights was effectively destroyed. These new "rights" imposed obligations, not limits, on the state.

It thus became government's job not to protect property but, rather, to regulate and redistribute it. And, the epic proportions of the disaster which has befallen millions of people during the ensuing decades has not altered our fervent commitment to statism. The words of Judge Alex Kozinski, written in 1991, are not very encouraging." 'What we have learned from the experience of Eastern Europe and the Soviet Union ... is that you need capitalism to make socialism work.' In other words, capitalism must produce what socialism is to distribute."26 Are the signs and portents any better at the beginning of a new century?

Has the constitutional Zeitgeist that has reigned in the United States since the beginning of the Progressive Era come to its conclusion? And if it has, what will replace it? I wish I knew the answer to these questions. It is true — in the words of another old song: "There's something happening here. What it is ain't exactly clear."27

The oracles point in all directions at once. Political polls suggest voters no longer desire tax cuts. But, taxpayers who pay the largest proportion of taxes are now a minority of all voters. On the other hand, until last term the Supreme Court held out the promising possibility of a revival of what might be called Lochnerism-lite in a trio of cases — Nollan, Dolan, and Lucas, Those cases offered a principled but pragmatic means-end standard of scrutiny under the takings clause.

But there are even deeper movements afoot. Tectonic plates are shifting and the resulting cataclysm may make 1937 look tame.

Lionel Tiger, in a provocative new book called The Decline of Males, posits a brilliant and disturbing new paradigm. He notes we used to think of a family as a man, a woman, and a child. Now, a remarkable new family pattern has emerged which he labels "bureaugamy." A new trinity: a woman, a child, and a bureaucrat."28 Professor Tiger contends that most, if not all, of the gender gap that elected Bill Clinton to a second term in 1996 is explained by this phenomenon. According to Tiger, women moved in overwhelming numbers to the Democratic party as the party most likely to implement policies and programs which will support these new reproductive strategies.

Professor Tiger is not critical of these strategies. He views this trend as the triumph of reproduction over production; the triumph of Darwinism over Marxism; and he advocates broad political changes to accommodate it.

Others do not see these changes as quite so benign or culturally neutral. Jacques Barzan finds the Central Western notion of emancipation has been devalued. It has now come to mean that "nothing stands in the way of every wish."29 The result is a decadent age — an era in which "there are no clear lines of advance"; "when people accept futility and the absurd as normal[,] the culture is decadent."30

Stanley Rosen defines "our present crisis as a fatigue induced by ... accumulated decisions of so many revolutions."31 He finds us, in the spirit of Pascal, knowing "too much to be ignorant and too little to be wise."32

I will close with a story I like a lot. It's a true story. It happened on June 10, 1990. A British Airways jet bound for Malaga, Spain, took off from Birmingham, England. It was expected to be a routine flight. As the jet climbed through the 23,000-foot level, there was a loud bang; the cockpit windshield directly in front of the captain blew out. The sudden decompression sucked Captain Lancaster out of his seatbelt and into the hole left by the windscreen. A steward who happened to be in the cockpit managed to snag the captain's feet as he hurtled past. Another steward rushed onto the flight deck, strapped himself into the captain's chair and, helped by other members of the crew, clung with all his strength to the captain. The slipstream was so fierce, they were unable to drag the pilot back into the plane. His clothing was ripped from his body. With Lancaster plastered against the nose of the jet, the co-pilot donned an oxygen mask and flew the plane to Southampton —approximately 15 minutes away — and landed safely. The captain had a fractured elbow, wrist and thumb; a mild case of frostbite, but was otherwise unharmed.

We find ourselves, like the captain, in a situation that is hopeless but not yet desperate. The arcs of history, culture, philosophy, and science all seem to be converging on this temporal instant. Familiar arrangements are coming apart; valuable things are torn from our hands, snatched away by the decompression of our fragile ark of culture. But, it is too soon to despair. The collapse of the old system may be the crucible of a new vision. We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.

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1 James Boyd White, When Words Lose Their Meaning (Univ. of Chicago Press 1984) p. 4.

4 Golembiewski & Wildavsky, The Cost of Federalism (1984) Bare Bones: Putting Flesh on the Skeleton of American Federalism 67, 73.

7 Michael W. Spicer, Public Administration and the Constitution: A Conflict in World Views (March 1, 1994) 24 American R. of Public Admin. 85 [1994 WL 2806423 at *10].

8 John O. McGinnis, The Original Constitution and Our Origins (1996) 19 Harv. J.L.& Pub. Policy 251, 253.

9 Tom Bethell, Property Rights, Prosperity and 1,000 Years of Lessons, The Wall Street J. (Dec. 27, 1999) p. A19.

13 John O. McGinnis, The Original Constitution and Our Origins, supra, 19 Harv. J. L.& Pub. Policy at p. 258.

16 Jean Francois Revel, Democracy Against Itself (The Free Press 1993) pp. 250-251.

20 Clint Bolick, Unfinished Business (1990) p. 25, quoting Crisis in the Courts (1982) The Manhattan Report on Economic Policy, Vol. V, No. 2, p. 4.

31 Stanley Rosen, Rethinking the Enlightenment (1997) 7 Common Knowledge, p. 104.

Sandy wrote: It was a proper ruling. The case wasn't even really about RKBA, either state or federal. The questions dealt with equal protection and separation of powers. I don't think 9th Circuit precedent was even mentioned in the decision. Regardless, state courts have no authority to overrule or be contrary to federal courts, so it's nuts to think that she should've done so (as if the rest of the court would've gone along with that!).
Here's the decision. Scroll down and read her concurrence. (Weird, she wrote the majority opinion plus a separate concurrence. ) She's obviously very pro 2nd Amendment, imo. Check it out.

___________________________________________

CONCURRING OPINION BY BROWN, J.
BROWN, J., concurring.
I
I concur in the judgment and opinion of the court. I am writing separately because, although the rejection of the equal protection claim is compelled by the majority opinion in Warden v. State Bar (1999) 21 Cal.4th 628 (Warden), I would independently reach the same conclusion under the unique circumstances of this case.
In Warden, a majority of this court abandoned our longstanding commitment to "`"serious and genuine judicial inquiry"´" into equal protection claims in favor of the highly deferential rational basis formulation articulated by the United States Supreme Court. (Warden, supra, 21 Cal.4th 628, 661 (dis. opn. of Brown, J.), quoting Newland v. Board of Governors (1977) 19 Cal.3d 705, 711, quoting Dorrough v. Estelle (5th Cir. 1974) 497 F.2d 1007, 1011.) Under the standard adopted by the Warden majority, "`[I]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. [Citations.] Where there are "plausible reasons" for [the classification] "our inquiry is at an end.´" (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 313, italics added, quoting U.S. Railroad Retirement Bd. v. Fritz (1980) 449 U.S. 166, 179; see, e.g., Central State University v. Amer. Assoc. of University Professors (1999) 526 U.S. 124; Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 130-132.)" (Warden, at p. 644.)
The dichotomy between the United States Supreme Court's laissez-faire treatment of social and economic rights and its hypervigilance with respect to an expanding array of judicially proclaimed fundamental rights is highly suspect, incoherent, and constitutionally invalid. "[T]he outcome in every case turns on how the court chooses to characterize the classification. Suspect classifications, such as those based on race or that impact rights the court deems `fundamental,´ warrant strict (read `fatal´) scrutiny; other classifications warrant rational basis (read `anything goes´) review. (FCC v. Beach Communications, Inc., supra, 508 U.S. 307, 313-316.) As Justice Mosk so aptly put it, `[t]he vice of the binary theory . . . is that it applies either a standard that is virtually always met (the rational relationship test) or one that is almost never satisfied (the strict scrutiny test). [Citation.] Once the test is selected, the result of its application is foreordained. . . .´ (Hays v. Wood (1979) 25 Cal.3d 772, 796 (conc. opn. of Mosk, J.).)" (Warden, supra, 21 Cal.4th at pp. 661-662 (dis. opn. of Brown, J.).) Just so, the result here was foreordained once we assumed "the AWCA does not burden a fundamental right under either the federal or state Constitutions, [and therefore,] the rational basis test applies. (See Peoples Rights Organization, Inc. v. City of Columbus (6th Cir. 1998) 152 F.3d 522, 531-533; Coalition of New Jersey Sportsmen, Inc. v. Whitman (D.N.J. 1999) 44 F. Supp.2d 666, 685; California Rifle [& Pistol Assn., Inc. v. City of West Hollywood (1998)] 66 Cal.App.4th 1302, 1329; Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109, 1133; In re Evans (1996) 49 Cal.App.4th 1263, 1270.)" (Maj. opn., ante, at p. 6.)
This case, however, illustrates the illusory nature of the distinction between "fundamental rights" and "areas of social and economic policy." Curiously, in the current dialectic, the right to keep and bear arms - a right expressly guaranteed by the Bill of Rights - is deemed less fundamental than implicit protections the court purports to find in the penumbras of other express provisions. (See, e.g., Cruzan v. Director, Mo. Dept. of Health (1990) 497 U.S. 261, 278-279; Zablocki v. Redhail (1978) 434 U.S. 374, 384-387; Moore v. City of East Cleveland (1977) 431 U.S. 494, 499-500.) But surely, the right to preserve one's life is at least as fundamental as the right to preserve one's privacy.
The founding generation certainly viewed bearing arms as an individual right based upon both English common law and natural law, a right logically linked to the natural right of self-defense. Blackstone described self-defense as the "primary law of nature," which could not be taken away by the law of society. (2 Jones's Blackstone (1976) p. 4.) "[T]he peaceable part of mankind will be continually overrun by the vile and the abandoned, while they neglect the means of self defense. . . . The supposed quietude of the good man allures the ruffian; . . . (but) arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world. . . . Horrid mischief would ensue were (the good) deprived of the use of [weapons] . . . the weak will become a prey to the strong." (1 Paine, The Writings of Thomas Paine (Conway edit. 1894) p. 56.) Extant political writings of the period repeatedly expressed a dual concern: facilitating the natural right of self-defense and assuring an armed citizenry capable of repelling foreign invaders and quelling tyrannical leaders.
After the Civil War a series of enactments, culminating with the Fourteenth Amendment, acknowledged the correlation between self-defense, citizenship, and freedom. Section 14 of the Freedman's Bureau Act, which the 39th Congress passed over the President's veto, provided: "That in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion, . . . the right to . . . have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery. . . ." (Freedman's Bureau Act (July 16, 1866) 14 Stat. 176, italics added; see Halbrook, Second Class Citizenship and the Second Amendment in the District of Columbia (1995) 5 Geo. Mason U. Civ. Rts. L.J. 105, 141-150 (Second Class Citizenship).)
Halbrook concludes the Freedman's Bureau Act, the Civil Rights Act of 1866, and the Fourteenth Amendment leave no doubt that "`the constitutional right to bear arms´ is included among the `laws and proceedings concerning personal liberty, personal security,´ and property, and that `the free enjoyment of such immunities and rights´ is to be protected" (Second Class Citizenship, supra, 5 Geo. Mason U. Civ. Rts. L.J. at p. 150) under the Fourteenth Amendment, which would confer citizenship on all persons born in the United States and imbue them with every right of citizenship, including the right to keep and bear arms. (Ibid.) In more recent times, Congress has continued to recognize that the right of law-abiding citizens to keep and bear arms is guaranteed by the Second and the Fourteenth Amendments. (Pub.L. No. 99-308 (May 19, 1986) 100 Stat. 449.)
The judiciary, too, has consistently acknowledged the interplay between express provisions and implicit protections. In Poe v. Ullman (1960) 367 U.S. 497, the seminal case in the Supreme Court's fundamental rights jurisprudence, Justice Harlan, dissenting, argued the Fourteenth Amendment due process clause protects privacy. He claimed the due process clause covered, but was not exclusively limited to, "the precise terms of the specific guarantees elsewhere provided in the constitution," including "freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures." (Id. at p. 549 (dis. opn. of Harlan, J.).) The court continues to cite Justice Harlan's enumeration as part of the full scope of liberty guaranteed by the Fourteenth Amendment against state infringement. (Planned Parenthood Southeastern PA v. Casey (1992) 505 U.S. 833, 848-849; Roe v. Wade (1973) 410 U.S. 113, 169 (conc. opn. of Stewart, J.); Griswold v. Connecticut (1965) 381 U.S. 479, 499 (conc. opn. of Goldberg, J.).)
II
We got it right two decades ago: "The constitutional bedrock upon which all equal protection analysis rests is composed of the insistence upon a rational relationship between selected legislative ends and the means chosen to further or achieve them." (Hays v. Wood (1979) 25 Cal.3d 772, 786.) The reasoning on which we relied has even greater force now. "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation." (Id. at pp. 786-787, quoting Railway Express v. New York (1949) 336 U.S. 106, 112-113 (conc. opn. of Jackson, J.); Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (1972) 86 Harv. L.Rev. 1, 8.) It is true, of course, that even a searching equal protection analysis will not preclude all underinclusive classifications. Rational basis with bite merely requires that when a legislature addresses an area of concern "in less than comprehensive fashion by `striking the evil where it is felt most,´ [citation] its decision as to where to "`strike´" must have a rational basis in light of the legislative objectives." (Hays v. Wood, supra, 25 Cal.3d at p. 791, quoting Werner v. Southern Cal. etc. Newspapers, supra, 35 Cal.2d at p. 132.) The anomaly here, of course, is that those complaining of unequal treatment - gun owners and dealers - are not a powerless minority, but rather one of the most focused and well-financed interest groups in modern American politics.
Politics is the art of the possible under pressure. "Everything that emerges from the legislative forum is tainted by its journey through the lobby. And the demand for perfection must inevitably compromise with the hard facts of political life." (Tussman & tenBroek, The Equal Protection of the Laws (1949) 37 Cal. L. Rev. 341, 350.) The pledge of equality before the law becomes meaningless if courts routinely validate legislative acquiescence to the strongest pressure group; but democratic processes are undermined if courts exhibit zero tolerance for any deviation from the great principle of equal protection. And the toughest and most delicate of questions is how to apply the principles of equal protection in a case like this one which defies - or perhaps redefines - the paradigm. The answer does not depend on "a mechanical application of convenient formulae," but rather requires a "complex and creative act of judgment." (Id. at pp. 350-351.) In this narrow intersection, rational basis analysis and heightened scrutiny may look the same.
Plaintiffs complain that the ban is irrationally underinclusive. Admittedly, the Legislature's findings and declarations seem internally inconsistent. While declaring that it banned the semiautomatic firearms listed in Penal Code section 12276 Penal because each weapon "has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings," the Legislature goes on to declare that it does not intend "to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities." (Pen. Code, § 12275.5 Penal) Conspicuous by its absence is any finding that the listed weapons differ from those not listed with respect to the salient characteristic, namely, their "rate of fire and capacity for firepower." (Ibid.)
On the other hand, plaintiff's claim that the ban is irrational because it will have no effect on violent crime proves too much. The insistence upon a rational relationship between selected legislative ends and the means chosen to further them cannot be so exacting. To declare murder a crime will not prevent murder. Prohibiting the possession of weapons by convicted felons will not stop criminals from obtaining guns. Assessing ever greater penalties has not eliminated the scourge of drug abuse. Means scrutiny assumes the law will have some effect and compares that effect with the means the Legislature has chosen.
Were courts to overturn every legislative action that is likely to be ineffective, few laws would survive. As in other spheres of human endeavor, legislative action is often fated to be more symbolic than real, and the understandable human desire to do something to address the crisis of the moment, not to mention the political necessity of being seen to be doing something, may be the real object of many legislative exercises. (See Kobayashi & Olson, In re 101 California Street: A Legal and Economic Analysis of Strict Liability for the Manufacture and Sale of "assault Weapons" (1997) 8 Stan. L. & Pol'y Rev. 41, 43.) And, to be fair, the most severe problems confronting us - like the current plague of violence - are quite beyond the capacity of government to cure. As Solzhenitsyn observed half a century ago, "the line separating good and evil passes not through states, nor between classes, nor between political parties either - but right through every human heart - and through all human hearts." (Solzhenitsyn, The Gulag Archipelago (1992) p. 615.)
Constitutional provisions divide into two categories: the "historically defined hard core of procedural provisions," including the Bill of Rights, the mechanics of institutional arrangements, political processes, and power allocations (Bickel, The Morality of Consent (1975) p. 29) and the "constitutional generalities" which must make it possible for future battles to be fought and for the Constitution "to transcend and endure beyond the fiercest political differences." (Bickel, The Least Dangerous Branch (1962) p. 105.) While the courts must enforce both, the necessary openendedness of concepts like equal protection means judicial review has important practical limits in a democracy. Where legislative compromise is still possible under conditions which are likely to fairly reconcile competing interests, courts may decline to intervene. The court's duty to restrain the tyranny of the majority must be measured against its obligation to act prudentially and with deference to the political process. Under our regime, a court must oppose arbitrary injustice even when acts of oppression have been duly enacted, and may vouchsafe no answer though contending political forces - momentarily in equipoise - teeter on the edge of tyranny.
Here, the underinclusiveness of the statute is not an attempt to exploit a despised minority. Instead, the Legislature sought to satisfy its need to do something about gun violence without awakening the political enmity of a large and effective constituency. Gun owners may be, as amici curiae argue, "a class of people subjected . . . to vicious stereotypes," but in the political realm a vicious stereotype is a constitutional disadvantage only when it results in impotence.
III
The issue before us may be among the most troubling and intractable of the last 30 years. Predictably, as cultural disintegration accelerates, the level of lethal violence escalates. Even cynics, quick to accuse elected officials of political posturing and empty symbolism, are stunned by the steadily mounting body count. Like the poet, we are forced to "put [our] eyes on a diet" because our "tears are gaining too much weight." (Kaufman, Golden Sardine (1967) "Heavy Water Blues," p. 60.) It is impossible not to grieve for the thousands of young men cut down in their prime; impossible not to mourn toddlers slaughtered in the midst of innocent play; impossible to ignore the grim reality of school children whose final moments echo with screams of terror and the sudden slap of bullets. And worse even than the slaughter of innocents is the death of innocence. All too often, the killers are children, too.
Some antigun advocates candidly admit they welcome "`[shooting] incidents´" and hope "`more heinous ones with more tragic or important victims´" will help move public opinion beyond support for narrow controls to the desired goal of complete disarmament. (Kates, Gun Control: Separating Reality From Symbolism (1994) 20 J. Contemp. L. 353, 358, quoting Ross, Book Review (1992) 98 Am. J. Soc. 661.) Amitai Etzioni, as spokesman for the Communitarian Network, dismisses the gun control measures that have been enacted and those currently under discussion as but "`vanilla-pale´" measures. (Kopel et al., Communitarians, Neorepublicans, and Guns: Assessing the Case for Firearms Prohibitions (1997) 56 Md. L. Rev. 438, 450, quoting Etzioni et al., The Case for Domestic Disarmament (1992) The Communitarian Network Ibid.) He has elsewhere argued that the right of the people to keep and bear arms (if any such right exists) is outweighed by the right of the public to be safe. (Kopel et al., at p. 445, quoting The Communitarian Network, The Responsive Communitarian Platform: Rights and Responsibilities reprinted in Rights and the Common Good: The Communitarian Perspective (Etzioni edit. 1995) 11, 19.)
I suspect the freedmen of the Reconstruction Era would vehemently disagree. So would the Armenians facing the Ottoman Turks in 1915, the embattled Jews of the Warsaw Ghetto in 1943, and the victims of Pol Pot's killing fields.
The media keep the horrific visions of gun violence ever before our eyes. These acts of individual madness are undeniably tragic and totally unacceptable in a civilized society. But there are other horrific visions - the victims of which number in the millions - perpetrated by governments against unarmed populations.
Conclusion
The framers could have had no conception of the massive scale on which government-sanctioned murder would be committed in the twentieth century, but they had a keen appreciation of the peril of being defenseless. That wariness is reflected in the Constitution. Perhaps they would agree with Thomas Paine's practical observation in his article Thoughts on Defensive War (Paine, Thoughts on Defensive War (July 1775) Pennsylvania Magazine (as of June 13, 2000)): "I am thus far a Quaker, that I would gladly agree with all the world to lay aside the use of arms, and settle matters by negotiation: but unless the whole will, the matter ends, and I take up my musket and thank heaven. . . ."

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Sandy, I've scrolled down and read her concurrence.

Its weird, because it reads more like a dissent to the majority opinion she herself wrote.
In fact, I really can't pick out the part where she concurrs. Can you point it out?

I agree, she's obviously very pro 2nd Amendment, and I'm surprised with the dichotomy evidenced between her majority opinion and the above concurrence.

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