Karl Llewellyn’s classic Bramble Bush introduces law students to the case method and explains that precedents have both a minimum and a maximum value. Playing within that field and finding the point in both directions “beyond which it does not make sense to go” is central to establishing the fair meaning of judicial decisions. When one is moved, as I am here, to brand the city hall shenanigans that lead to the litigation in Jackson v. San Francisco, as blatant defiance of the Supreme Court’s decisions affirming the individual right to arms, Llewellyn’s instructions help to slow and unpack that reflex.
Some of the families who survived the horror of the Newtown shooting are suing Bushmaster, the manufacturer of the AR-15 rifle that was used by the deranged gunman who murdered 20 children and six adults at Sandy Hook Elementary School.
The complaint actually reads more like an attempt at healing than a serious legal claim. To that extent, I am sympathetic. But the strictly legal issues and theory of recovery to be gleaned from it deserve comment.
My last post ended by asking: where is the outrage at the disparagement of the struggle and sacrifice that the first generation of Black citizens made to vindicate their right to arms? The question was rhetorical, meant to emphasize how casually former Justice John Paul Stevens and Michael Waldman turn a blind eye to one of the foundational episodes in the story of Black Americans.
The tack taken by Stevens and Waldman is all too familiar. It takes for granted that some people more than others are allowed to play rough on the field of race.
My last post discussed how John Paul Stevens, late of the Supreme Court, and author Michael Waldman advance a stingy, substantively empty view of the Second Amendment by ignoring the Constitution’s framework of limited, enumerated powers. That critique, of course, only goes to federal authority. The right to arms enforceable against the states rests on the Fourteenth Amendment.
We are in the middle of another round in the effort to scuttle the right to keep and bear arms. Justice John Paul Stevens, while on the Supreme Court and since retirement, has urged interpreting the Second Amendment as an individual right to keep and bear arms “while in the militia” or some such. This renders the right empty and ultimately incoherent. (Try to imagine the right Stevens proposes and you get zero. As the majority in D.C. v. Heller stated bluntly in 2008, it is nonsense to talk about a right to keep and bear arms within an organization from which Congress has plenary authority to exclude you.)
Also jumping into the fray is Michael Waldman, whose “biography” of the Second Amendment uses the militia conversations during the ratification debates of the late 1780s to accuse the 20th century National Rifle Association of inventing the individual right to arms.
There is so much wrong here that it may take several posts to unwind. This post will focus on the basic mischaracterization of our constitutional scheme of rights and powers and how unbridled federal power perverts our conception of rights.
This next Liberty Law Talk is with Nick Johnson on his new book Negroes and the Gun: The Black Tradition of Arms. Johnson writes that “The black tradition of arms has been submerged because it seems hard to reconcile with the dominant narrative of nonviolence in the modern civil rights movement.” Added to this, Johnson observes, was the rise of a “new black political class” that came to prominence “within a progressive political coalition that included the newly minted national gun control movement.” “The burgeoning black political class,” he writes, “embraced gun bans and lesser supply controls as one answer…
I have been away from this page for several months, working on book that is now nearing completion. Thought I would say hello again and give a preview of the book. You may recall my posts responding to eruptions from Bob Costas, Jason Whitlock and Danny Glover. Those posts tried to retrieve the debate from the swirl of myths, absurdities and glib chatter that often afflict the intersection of race, gun rights and firearms regulation. I have spent a substantial part of my scholarly effort over the years within that intersection. The culmination of that work so far, is my…
Ballooning scandals at the IRS, government snooping, and the run on ammunition are the main topics of conversation at the range these days. It’s illuminating to hear people outside the chattering class talk about checks and balances, ammo shortages as a barometer of discontent and looming tyranny. Tyranny especially, used to be the cry of black helicopter conspiracy theorists. It signals something when regular folk, will say the word and talk unselfconsciously about how to define it and what to do about it.
I have a friend who keeps going to the range with me and then threatening to buy a gun of his own. He has the grudging support of his wife who got drawn in after a round of clays where she hit more than he did.
She has questions, though. And it has been enlightening for me to talk about familiar things with an open-minded person who comes at gun issues basically from what she sees on TV. She was perplexed about many of the exchanges in the current debate.
She listened patiently to my critique of the “bad gun formula of marginal supply controls as recipe for creeping disarmament.” Against scary looking pictures of AR-15’s it didn’t really click. But she was unwilling just to nod and move on. Her need to understand forced me to work a little harder on the details and to appreciate something I had lost sight of.
I realized that those of us who focus on these issues sometimes use rhetorical tools that fail to resonate for folks who are increasingly lured to think in pictures rather than words. This helped me understand why the bad gun formula as a slippery slope to full confiscation argument might not convince some people until you tell the long story and illustrate it in detail. I thought it might be worth doing that here.
I just dusted off an entertaining screed from 1973 written by former Washington Post reporter Robert Sherrill. Although you can gather it from his credential as a Posty, the prodigious title of the book better signals his views on the “so-called” right to keep and bear arms. To wit: The Saturday Night Special: And Other Guns With Which Americans Won The West, Protected Bootleg Franchises, Slew Wildlife, Robbed Countless Banks, Shot Husbands Purposely And By Mistake And Killed Presidents – Together With The Debate Over Continuing Same. Absent from Sherrill’s list is any suggestion of the utility of firearms for legitimate self-defense.
The book is a vivid reflection of the times, urging confidently the states’ rights view of the Second Amendment that today not a single member of the United States Supreme Court attempts to prop up. But enough nostalgia.