Category: Politics

Keeping and Bearing Arms: A Pre-Constitutional Right?

In the landmark case D.C. v. Heller, the U.S. Supreme Court has held that the Second Amendment right “to keep and bear arms” is an individual right. This reading is consistent with the unanimous sentiment of the late eighteenth and nineteenth centuries, as well as the language of the amendment. In a scholarly tour de force that dissects the Second Amendment grammatically, logically, and historically, Justice Scalia’s majority opinion argues that the purposive clause regarding a “well-regulated militia” cannot be construed as contradicting the operative clause: “the right of the people to keep and bear Arms, shall not be infringed.” He then eloquently shows the logical, grammatical and linguistic incoherence of the contrary interpretation, which would effectively mean that this right shall be infringed, even to the point of banning handgun ownership as in D.C.

Notwithstanding Scalia’s painstaking dissection of the issues, gun control advocates and leftist legal scholars have raised their usual canards when attacking a decision grounded in originalist jurisprudence. These themes include (1) accusing the originalist of judicial activism; (2) claiming that the Constitution has always been “dynamically interpreted;” and (3) complaining that the decision ignores “precedent,” usually some controversial twentieth-century activist decision that itself disregarded a century of prior precedent.

The laughable assertion by liberal journalists that the court majority is practicing “judicial activism” by virtue of striking down a DC statute betrays an ignorance that would shame some high school students. By that standard, anyone who supports Marbury v. Madison (1803) is a judicial activist. It is true that this decision might be considered “activist” by some hard-core originalists who do not accept “incorporatism,” the century-old doctrine that the rights enumerated in the Constitution also apply to the states by virtue of the Fourteenth Amendment. This doctrine allows federal courts to rule on whether local statutes violate constitutionally guaranteed rights. As mainstream liberals and conservatives alike accept this doctrine, that cannot be the basis for the accusation of activism.

Activism means more than voiding an unconstitutional state or local law, or prescribing some course of remedy, as such powers have been regarded as proper to the judiciary since the founding. The contrary of judicial activism would not be to uphold every state law, but to exercise “judicial restraint,” judging only whether the law is valid under the Constitution, not whether it is a good or bad policy. When a law is struck down because it is considered a bad law, even though it is constitutionally valid, we enter the realm of judicial activism. The archetype of such activism is Brown v. Board of Education, which did not even attempt a constitutional rationale, but was based on the supposed sociological effects of segregated schools. Miranda v. Arizona is another activist decision, prescribing a procedure of reading a suspect his rights, grounded more in the Court’s sense of fairness than in any constitutional requirement.

It would be hard to classify DC v. Heller as an activist decision, as the ruling makes no appeal to the prudence or justice of gun control laws, but judges only whether it infringes the Second Amendment right to bear arms. The majority opinion is not concerned with policy outcomes, but with establishing the construction of the Second Amendment text based on relevant historical and legal documents. One may disagree with the construction, but that does not make the decision remotely activist.

The accusation of activism is in any case insincere, as the same charlatans who complain that (1) the Court has departed from the meaning of the Amendment also claim that (2) we shouldn’t strive for original meaning, but accept that the meaning of the Constitution changes with time. Simultaneously holding both points is inconsistent and petty. Scalia presents evidence showing that the right to bear arms would have been worthless if it applied only to organized militia, since the federal government controlled the militia and the Bill of Rights was intended to restrain the federal government. Even without his exhaustive argument, the meaning of the Second Amendment should be obvious to anyone remotely familiar with the time, where the individual right to bear arms was widely assumed, and never contradicted. In 150 years of American jurisprudence, no one ever dared suggest that bearing arms was only a “collective” right; indeed, it was a symbol of free citizenship, and awarded even to blacks after their emancipation. Only those disingenuous enough to project their modern liberal views onto eighteenth-century men could deny the Court’s assessment of the original meaning of this right.

Opposing originalism is the idea of a “living Constitution” or “dynamic interpretation” or whatever Orwellian term one prefers to describe the position: “the Constitution means what we say it means.” If the Founders intended the Constitution to be easily changed in its meaning, it is hardly understandable why they took pains to make its amendment so difficult. Anyone familiar with the political philosophy of the time knows that a constitution was considered to be the most fundamental and least-changing aspect of a political state. Chief Justice Marshall likened constitutional interpretation to interpretation of a statute, and there certainly was no theory of dynamic interpretation of statutes current at the time. The law expresses the will of the legislators, which must be respected in its execution and interpretation.

The idea that the meaning of the Constitution changes (based on ideas of people who have read a little philosophy and understand even less) makes a mockery of written constitutions and laws; we would indeed be ruled by the arbitrary will of judges. What saves us from such tyranny is concern for original intention and meaning, which was the common approach of all jurists for most of this country’s history (read Justice Harlan’s dissent in Plessy v. Ferguson). The Constitution may be applied to different circumstances, and jurists may disagree as to how its principles apply to those circumstances, but the principles remain the same.

To be “progressive” often entails having a myopic view of history and contempt for the remote past. History before the social revolution is to be forgotten, except as an object of derision. After ignoring the unanimous sentiment of the eighteenth and nineteenth centuries, liberal scholars contend that the 1939 case U.S. v. Miller deserves a special reverence, disregarding all earlier jurisprudence. Even if such a legal theory were valid, it would not prove what they wish. Miller does not even attempt to construct the Second Amendment, much less did it define the right to bear arms to be a purely collective right. The brief ruling upheld the constitutionality of the National Firearms Act, requiring registration of firearms crossing state lines. No reading of the Second Amendment (not even that of Heller) would invalidate such a law. The Court even noted that the various States have different provisions for the right to bear arms, but “none of them afford any material support for the challenged ruling”.

The Court in Miller viewed the purposive clause of the amendment as defining the scope of arms to be borne. A ‘shotgun having a barrel of less than eighteen inches in length’ did not have any “reasonable relationship” to the legislative purpose of preserving a militia. Yet it does indicate, in its discussion of early American militias, that men were to purchase and maintain their own arms, so this is by implication an individual right, though it is granted for the sake of the common defense. Without debating the merits of Miller, we can see it falls short of denying an individual right to bear arms, though it does circumscribe that right by a “reasonable relationship” to the common defense.

Heller goes further, and includes a common law right of self-defense, citing Blackstone, as the basis of the right to bear arms. This ruling goes deeper than interpreting the Constitution, for it indicates that the rights enumerated in the Bill of Rights are prior to the Constitution, not granted by it. The right to bear arms belongs to the people, not as a gift from the federal government, but as something they held before it existed. The idea that civil rights are morally and temporally prior to the Constitution is an important step toward grounding American jurisprudence in something like natural law. Yet if Scalia scorns jurists who try to be moral philosophers interpreting natural law, he avoids this only by appealing to English common law tradition, which is our last link to the Catholic world and natural law theory, codified as an unquestioned given.

Cultural Amnesia and the Marriage Question

Four leftist judges in California have substituted their confused moral philosophy for judicial precedent and popular sovereignty in order to advance a nonsensical definition of marriage. This act reflects the ill-founded presumption that the Weberian state has the authority to re-define pre-existing institutions such as the family, from which the state’s own authority is derived. The absurdity of applying a twenty-first century leftist interpretation to a nineteenth-century constitution is lost among those who value the end over the means.

For the moment, let us not concern ourselves with the incoherence of liberal jurisprudence, nor with the usual arguments regarding same-sex attraction. The popular misconceptions surrounding these issues do not admit of a simple, pithy response, though at least one attempt has been made to summarize the relevant arguments from a Catholic and natural law perspective. Instead, I should like to turn attention to the extraordinary fact that most defenders of the California court’s decision seem to be wilfully unaware of the fact that this position was recently considered extremist even among liberals, yet no account has been made of the reason for this sea-change of opinion.

Only fifteen years ago, the idea of same-sex unions constituting a marriage in a sense fully equivalent to conventional marriage was not mainstream opinion, even among social liberals. Indeed, the anthropologist searches in vain for a precedent, finding at best some rites of friendship or clandestine practices. Even the numerous ancient societies that approved of homosexual acts did not pretend that this had anything to do with marriage, which was irrevocably tied up with the rearing of children. As recently as forty years ago, the weight of scientific opinion, even among atheists, was that homosexuality was a psychological disorder, and numerous case studies indicated that it could be cured. Of course, the classification of a behavior as a mental disease involves a normative moral judgment. As mores changed, so would the definition of health.

The de-classification of homosexuality as a mental disorder in the 1970s was likely a reflection of changes in attitudes toward sexuality rather than the result of any scientific breakthrough, since to this day our understanding of same-sex attraction remains rudimentary and speculative. The influence of social attitudes on scientific inquiry could be seen in the 1990s, when there were several premature claims to have found a genetic basis for the attraction, evincing a desire to find such a basis. Given the lack of scientific progress, and the further fact that most people are scientifically illiterate, we cannot invoke science as a primary reason for the recent sea-change in opinion regarding same-sex unions.

Changes in modern social mores are dictated by two main arbiters of propriety: the state and the cultural media. Church, family and ethnicity tend to conserve values rather than fabricate new ones, while the liberal state constantly creates new mores via legislation and judicial rulings, and the cultural media, especially through the verisimilitude of television and film, have the power to shape impressions about what is normal behavior. We have just seen the power of a compact judicial majority of four over three to dictate mores to a state of 50 million people. Television, film, and journalism have also shaped mores, thanks to the effective nullification of decency standards in the 1990s, promoting a progressively vulgar and sexually hedonistic ethos, in which there is, understandably, nothing remarkable about same-sex attraction.

To this day, the majority of male homosexuals have little interest in monogamous marriage, yet they have advocated this issue strenuously, in order to achieve their ideological goal of full equivalence with “traditional” marriage, or marriage as it has always been known. Already aided by leftist judges and the increasingly libertine media, some have sought to indoctrinate children via public schools. Some U.S. federal judges have actually ruled that parents do not have a right to be notified of such indoctrination, which includes explicit references to same-sex “marriage”. Unable to produce children in their sterile relationships, the more militant homosexuals and their defenders insist on the right to shape the mores of other people’s children.

This act of violence against the family is not peculiar to this issue, but reflects a broader presumption that the state has greater rights over a child than a family. The proper response to this assault on familial rights is to resist such forms of state control, with force if necessary, to make clear that the state is but a servant of the households that formed it. The state that loses sight of this fact deserves to be dismantled until it returns to its proper role in society.

Vast resources of the state and private media have been directed (though not always consistently) toward shaping public opinion in precisely the form it has taken, often using unscrupulous tactics to suppress contrary evidence. Yet this trick could never work upon people who have a cultural memory independent of what is served through mass discourse. For such people, it would not suffice to assent to some vague sense that this is the “modern” or “progressive” thing to do, without any notion of how we got here. Here we come upon the most stunning aspect of such social changes: the complete cultural amnesia that makes it possible to forget the state of affairs of only fifteen years ago.

Fifteen years ago, the West was socially liberal and highly literate, yet by no means advocated the current paradigm of same-sex unions that is now proffered as a standard of liberalism, rationality, and open-mindedness. To regard anyone who differs on this issue as a hidebound conservative evinces a breathtaking ignorance of the recent past, where one could be liberal, secular and rational, yet regard same-sex “marriage” as bunk. I recall the famous words of Cicero:

Nescire autem quid ante quam natus sis acciderit, id est semper esse puerum. Quid enim est aetas hominis, nisi ea memoria rerum veterum cum superiorum aetate contexitur?
– Cicero, Orator ad M. Brutum (XXXIV, 120)

Not to know what occurred before one was born, that is to remain always a child. For what is the lifetime of man, if it is not connected with the remembrance of the histories of previous generations?

I wonder what Cicero would have said of those who cannot even remember what happened in their own lifetime, but are so faddish that they must disavow memory even of their recent past. As Cicero observes, the importance of recalling the past is that our lives are irrevocably connected to and derivative of the deeds of our predecessors. In other words, we need to know the past in order to understand where the present came from. In this way, we could see through many of the rhetorical tricks and misdirections that would-be opinion-makers cast at us, for we could see that they are not grounded in any substantive rational or empirical development. Knowledge of the past keeps liars honest, for they must be forced to account for why what they say now differs from what they said yesterday. Who remembers that, in the early nineties, “gay rights” advocates would deny that they sought the right to marry, dismissing such claims as alarmist fear-mongering? Yet why should we be surprised if no one remembers this, or makes nothing of it, when we permit a president to re-invent his reasons for invading Iraq in a matter of months?

We cannot expect the mass media, or even liberal academia, to place much emphasis on the past, since that would divest them of their cultural authority. The manufacture of an ignorant yet educated populace has been the work of a hundred years, beginning with the elimination of the classics from grammar school, so that today most university graduates wouldn’t know Cicero from Adam. Yet, as time goes on, the horizon of our collective memory shrinks ever further, so that “modern” only means the last twenty years or so, often even less. We surrender this collective memory only at the expense of our sovereignty against the encroachments of the state and the shallow intelligentsia who do not wish us to learn how flimsy is their philosophy.

Sharia and the Weberian State

The brouhaha raised in Britain over the Archbishop of Canterbury’s suggestion that sharia law be partially legitimized has exposed the statism at the core of secularism and the fragility of the truce that traditional cultures have made with one another through liberalism. Secularist peace comes at the price of ethnic and religious identity; man is freed from his church and neighbor only to be enslaved by the state, which claims unlimited jurisdiction over civil society.

Several forces combined to create the excessive reaction to Archbishop Rowan Williams’ comments. First, sharia itself is popularly demonized as being brutal or barbaric, in the sense of endorsing draconian violence and not respecting liberal ideals regarding gender equality, apparently forgetting that these are less than a century old, and we can hardly expect all rational people to share our arbitrary mores. This line of criticism ignores the fact that Dr. Williams only proposed applying sharia in the way that Jewish courts are applied to financial and marital contracts, as a civil arbitration agreed to by both parties, so there is no question of coercion. Further, as Dr. Williams points out, sharia is not a monolithic system of law, but a method of jurisprudence applicable only to Muslims who voluntarily submit to the law, so it is not incompatible with pluralism.

Another point of criticism is found in the Archbishop’s astonishing statement that for citizens “to be under the rule of the uniform law of a sovereign state” with all other commitments being private in character “is a very unsatisfactory account of political reality in modern societies.” He attacks the heart of liberal political theory, which takes pride in equality before the law, without regard for personality. Before the so-called Enlightenment, political philosophy was more sophisticated on this point, recognizing that laws ought to be tailored to local circumstances and customs, and that there is no one-size-fits-all system of government or law. This political wisdom was retained in the federal system of the United States in the nineteenth century, though this was gradually undermined in favor of a European model of increased centralization. The centralized state had expanded at the expense of local government and civil society long before the French Revolution; indeed, the revolutionaries simply inherited the marvelous administrative apparatus of the ancien regime. As liberal democracy spread, clerical and aristocratic privileges were abolished, so all political power was consolidated in the state. In the process, the state acquired powers historically foreign to it, including the regulation of marriage and private financial matters.

These historical developments have led to a profoundly statist European culture that views any attempt by businesses, churches, or other institutions to assert their legal independence as cause for alarm. In the case of churches, a panic over theocracy arises whenever a church refuses to submit to the generic morality of the state. Such fears are thoroughly irrational, as the state, being far more powerful than any church, is a far greater threat to liberty than any ecclesiastical bogeymen. The masses flee the supposed tyranny of traditional institutions to labor under the much heavier yoke of modern government, which levies higher taxes than any ancient tyrant ever dared, and claims unlimited jurisdiction over all human affairs. This idolatrous concept of the state, circumscribed by neither natural nor divine law, was candidly described by Max Weber as the monopolization of the legitimate use of force, and of lawmaking. Today, the Weberian state so jealously guards its monopoly over violence, that it would pretend to have authority to decide whether parents may spank their children. Where one stands on such an issue is only of secondary importance; what matters is that the state actually claims the right to decide the issue, as for all human affairs. The state alone can coerce; the state alone can demand obedience, while other institutions only meekly request it of their members.

In the United States and much of the Americas, statist tendencies are checked by a robust cultural heritage of limited government, but in most of Western Europe, including Britain, statism is conventional wisdom. Indeed, the more stridently secularist parties tend to have the firmest conviction that the state ought to have plenary jurisdiction over civil society. The fatal mistake of statist liberalism is to mistake democracy as the basis of liberty, when the real basis of liberty is limited government. A state with absolute sovereignty is just as tyrannical whether it is monarchically or democratically constituted.

Rowan Williams has touched a sore nerve by pointing out that liberal democracy contradicts its promise of tolerance and multiculturalism by insisting on a uniform rule of law, without regard for what is reasonable in specific cultural contexts. By doing so, liberal governments deny many groups “the right to speak in their own voice”, as when they pass laws and rulings that admit no exception for religious conscience, defining their secularist views (often a minority opinion!) as the basis for what is reasonable, coherent and acceptable. It would seem they do not despise tyranny so much as they prefer their own sort of tyranny.

Archbishop Williams did not dare to suggest that the state’s sovereignty be circumscribed, but only proposed that people may voluntarily submit to other sources of authority. He is not ready to abandon the Weberian state, but even the concession that there should be any human authority besides the state is too much for many secularists to bear, even though in fact Britain already allows civil arbitration by religious courts. Hatred of religion is strong enough in some to make them forget their contempt of bureaucrats and strenuously endorse the monopoly of the state.

Just as the Romans subverted all local cultures and religions by including foreign gods in the Roman pantheon and requiring only that Caesar be worshipped universally, so too does liberalism undermine the freedom of local culture, as witnessed by the devastation of French and Italian rural cultures, replacing them with an increasingly amorphous, bland consumerism. The great paradox of the Enlightenment is that supposed political liberty has led to cultural homogenization, masked by a bewildering diversity of consumer goods. This is because the only social mores that are enforceable are those of the state. With the magnitude of modern states, an individual’s vote counts for practically nothing, and in fact he can do little to alter the bureaucratic system in which he is enmeshed. He is nominally a citizen, but practically a subject, and if he calls himself an atheist, he should be humbled to learn he is no less a slave of Caesar than the most superstitious pagan.

In addition to the issues raised by Dr. Williams, sharia presents a special challenge to the West in that it does not recognize a neat distinction between religious and civil law (a medieval European development), much less a Weberian concept of the state and civil society. In Islam, society is an integrated whole. One does not need to share this holistic view of society to present a stumbling block to the liberal model; one only needs social principles at odds with those of the liberal state. The social peace of liberalism is a sort of devil’s peace where all one’s enemies are dead or enslaved, as all institutions are silent before the overwhelming force of the state (or more realistically, the state and its friends in the private sector). The Weberian state can make life materially pleasant, but woe to the one who conscientiously prefers a distinct set of social principles, not to be relegated to the ghetto of “private” activity.