I suppose this guy pretends that Emerson doesn't exist? Be Seeing You,
Chris
Posted on 05/27/2002 3:41:30 PM PDT by SpyderTim
THE DEBATE OVER THE SOLICITOR GENERAL'S SECOND AMENDMENT SWITCH: How It Illustrates Common Misconceptions About His Constitutional Role By EDWARD LAZARUS elazarus@findlaw.com ---- Thursday, May. 16, 2002
Last week, the Solicitor General of the United States informed the Supreme Court that the Department of Justice had decided to fundamentally change its interpretation of the Second Amendment.
The SG is now arguing that the Second Amendment protects an individual's right to possess a firearm for purely personal use. Previously, DOJ had interpreted the Amendment as protecting a right to bear arms only in the context of forming or serving in a state militia. If the SG's new view is adopted by the courts, various gun control laws that previously seemed immune to constitutional attack will, in all likelihood, be struck down as infringing individuals' Second Amendment rights.
The announcement of the switch in position raised two related but distinct issues. First, is the SG's new interpretation more, or less, convincing than the previous interpretation? And, second, was it appropriate for the SG to revisit a constitutional question that had been settled within the Department of Justice for more than 60 years?
Does the Second Amendment Create an Individual, Or Only Militia, Right to Bear Arms?
With respect to the first question, suffice it to say that the Solicitor General has a high hill to climb.
The Amendment itself reads "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." Thus, it makes clear that the very purpose of the right to bear arms is to ensure that state militias can exercise that right. To derive an individual right to possess firearms from this text, one must ignore the introductory clause linking the right to keep and bear arms to the maintenance of a well-regulated militia.
One must also ignore the fact that the later phrase "to ... bear arms" has a decidedly militaristic cast - thereby reinforcing the first clause's apparent limitation of Second Amendment rights to the militia context. It is a soldier who "bears arms"; a private citizen simply carries a gun.
Moreover, the individual rights reading of the Amendment depends entirely on interpreting the word "people" as an individualized term - for according to the Amendment, it is the "people" who have "the right . . .to keep and bear arms." Typically, however, the Constitution refers to the people as a unified collective (think of the Preamble's opening reference to "We the People"), not as a group of individuals - as the brothers Amar have previously noted in this forum.
In sum, there is a strong case against an individual rights reading of the Second Amendment. (For more on this view, see FindLaw columnist Michael Dorf's argument to this effect).
Is there also a strong argument on the other side, in favor of the SG's new view? So far, the SG has provided no supporting analysis. Instead, the SG merely announced the reversal of DOJ's view in footnotes embedded in two briefs urging the Supreme Court to deny review in pending gun-related cases. As a result, examination of the merits of the SG's positions, and the argument cited to support it, would be somewhat premature.
Critics of the Solicitor General's Reversal Misunderstand the Office's Constitutional Role
It is not premature, however, to weigh in on the propriety of the Solicitor General's decision to reverse a sixty-year-old departmental position. Critics of the SG's move charge that Ted Olson has violated two separate obligations of the SG's office: first, to remain above politics; and, second, to avoid radical changes in the fabric of the law.
In a column that appeared yesterday in Writ, Professor Michael Dorf appropriately rebutted some of the more specific allegations leveled against the SG in relation to the decision to switch positions. In particular, Dorf addressed the claim that the SG's actions inappropriately undermine the Justice Department's own law enforcement efforts. He also took issue with the claim that the SG should not have gratuitously signaled its change of view in a footnote to otherwise routine briefs urging the Supreme Court not to review certain gun-charge convictions - pointing out that, to the contrary, problems would have arisen if the footnotes did not exist.
Critics' reaction to the SG's change of heart, however, also betray a deeper misunderstanding of the role of the SG in our constitutional framework.
It has now become received wisdom that the Solicitor General, as the so-called "Tenth Justice," should play some kind of a political mediating role between Executive Branch officials pressing a president's jurisprudential agenda and the Supreme Court. According to this vision of the SG, he (or she) is an independent caretaker of the "integrity" of the law. Much like the justices at the Court, then, he or she owes a strong allegiance to values of respecting precedent and ensuring continuity in doctrinal approach.
There can be no doubt that some veterans of the SG's office did envision their role this way: as providing an institutional check on political change within the executive branch. Nevertheless, the cynic in me sees this view of the SG's office as largely the political creation of liberals horrified by the SG's abandonment of various liberal positions during the Reagan era.
Indeed, it reminds me of a current trend among some leading liberal constitutional scholars, such as Cass Sunstein. These scholars have come to see the wisdom of an "incrementalist" approach to constitutional law - again, an approach that eschews radical change for gradual evolution - during the very era when a pretty radical cadre of conservatives holds sway at the Supreme Court.
It is hardly a coincidence that liberals tend to resist drastic swings toward conservative views, and conservatives tend to resist dramatic swings toward liberal views. As Thurgood Marshall commented in the very different context of ending segregation, when they say "Go slow," they mean "Don't go." This is true whether the movement is to the right or the left.
The Solicitor General's Right - And Perhaps Duty - To Reverse Position At Times
In any event, it seems to me that the SG has every right - indeed, sometimes a virtual obligation - to reverse the views of his or her predecessors in the office. The SG is a political appointee of the President. Presumably, that President has run, and won election, on a platform containing a particular vision of certain constitutional provisions and Supreme Court decisions. In that sense, the President, through the SG, has a democratic mandate to alter the Department of Justice's approach to the Constitution and the case law interpreting it.
This is not a course of action to be undertaken lightly. The SG, as the government's advocate before the Court, has a long-term interest in maintaining absolute credibility. For that reason, he or she has an obligation to present arguments that are well-founded, persuasive, and intellectually honest. (Observing this duty is one justification for the SG's occasional practice of "confessing error" - that is, asking for reversal in a case the Department of Justice has won in the lower courts. This duty also explains why the SG may decline to defend clearly unconstitutional statutes.).
These responsibilities may counsel against advancing new positions with little support either in academia or on the Court. But such prudential considerations do not change the underlying principle that the SG must be guided by a vision of the Constitution - and that vision, appropriately, will reflect the views of the President to whom the SG is ultimately responsible.
There are several important mechanisms by which the meaning of the Constitution changes over time to reflect the nation's evolving understanding of its own charter. One is the process by which new justices are appointed to the Court. On this understanding of the SG's role, the Office of the Solicitor General provides another vehicle to accomplish the same goal.
It Is Entirely Appropriate For the SG to Mirror President Bush's Gun Control Views
Seen in this light, Ted Olson's reversal of position with respect to the Second Amendment is unobjectionable. President Bush's vision of the right to bear arms was an explicit issue in the campaign. Those who voted for him did so, in part, as an endorsement of his approach to this constitutional question. Thus, it is neither surprising nor inappropriate that his SG should seek to implement a vision of the law shared not only by the President, but also by three members of the Supreme Court.
At the same time, of course, it is equally appropriate that the SG and the President he serves be held accountable for the constitutional vision they espouse. The individual rights view of the Second Amendment that the Administration has now adopted is a problematic one, and for that the Administration and the SG's office should equally be faulted.
This view finds its roots in an anti-federal-government vision of the Constitution that is often troubling and always incomplete. Constitutional history, both at the Founding, and especially after the Civil War era, supports a very different vision - one that embraces the beneficent purposes of the federal Union and casts doubt on the more paranoid view of federal power. Those of us who adhere to this latter vision would be well advised to spend less time griping about our opponents having the courage of their convictions, and more time showing the we have the courage of ours.
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Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.
Why do I have a feeling that in his book about the Court, this guy considers the "rise" to be when judicial activism took over, and the "fall" to be when constructionalists started getting power back?
Militias are derived from [fire]arms bearing citizens. They were necessary for national defence literally at any time. Therefore the right of the people to keep and bear arms had to exist. In 1798 it wasn't possible to just run out and buy a gun somewheres, you know!
Hey, big shot lawyer, what part of this Constitutional Amendment don't you understand?
I suppose this guy pretends that Emerson doesn't exist? Be Seeing You,
Chris
Only a shallow-thinking liberal would challenge the "individual rights view" of the Second Amendment. Many of the country's highly recognized constitutional scholars, both liberal and conservative, agree with this interpretation; some saying that it is an embarrassment.
The Constitution and the Bill of Rights mean today what they meant in 1787 and 1791--Justice Antonin Scalea, circa 2000.
To me it is clear that the second amendment was created to protect an individual right.
I'm sure many of you have read the Unabridged Second Amendment. What it boils down to, for those not wanting to read the whole page, is a matter of linguistics (or semantics).
The author of the Unabridged article asked a well cedentialed linguist to compare the wording of the second amendment with this sentence:
"A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."
He asked him if one could interpret this sentence to mean that only "well-schooled" people could keep and read books. Of course the answer was "No". He furthermore asked him if the wording of the book question was the same as the wording of the second amendment, and he replied it was.
If you haven't read the Unabridged Second Amendment, you should. Like me, it could become a good talking point for you when you run up against folks dead set against guns.
See US vs. Verdugo-Urquidez, 1990. This case deals mainly with the Fourth Amendment, but it addresses interpretations of "the people."
Typically, however, the Constitution refers to the people as a unified collective (think of the Preamble's opening reference to "We the People"), not as a group of individuals - as the brothers Amar have previously noted in this forum.
The brothers WHO?
And what a statement - talk about pushing the boundaries! What comprises a "unified collective?"
Chief Justice Rehnquist:
The Fourth Amendment provides: [494 U.S. 259, 265]"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). The language of these Amendments contrasts with the words [494 U.S. 259, 266] "person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal cases.
Justice Kennedy:
For somewhat similar reasons, I cannot place any weight on the reference to "the people" in the Fourth Amendment as a source of restricting its protections. With respect, I submit these words do not detract from its force or its reach. Given the history of our Nation's concern over warrantless and unreasonable searches, explicit recognition of "the right of the people" to Fourth Amendment protection may be interpreted to underscore the importance of the right, rather than to restrict the category of persons who may assert it. The restrictions that the United States must observe with reference to aliens beyond its territory or jurisdiction depend, as a consequence, on general principles of interpretation, not on an inquiry as to who formed the Constitution or a construction that some rights are mentioned as being those of "the people."
It's only rocket science to those that want it to mean the opposite.
THAT Dept. of Justice was Nixon's and the AG was John Mitchell who went to prison in regards to the Watergate scandal. IS this the sort of people the socialist want to use to validate their meaning of the 2nd.Amendment...?
Geez! Anybody want to hire this lawyer to argue for you about a parking ticket?
This legal giant is a mental midget!
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