We the Government -- Self
Defense is an Individual Right
By John
G. Lankford
October 23, 2001
The United States Court of Appeals for the
Fifth Circuit, in New Orleans, rendered judgment in United
States vs. Emerson last week, and the squabble over what the decision
really meant began instantly and became acrimonious immediately.
The controversy even began, it turned out,
before the judgment was rendered. The court sat in the form of a three-judge
panel, due to the procedural posture of the case as it reached the appellate
tribunal. All three judges agreed on the result rendered, reversal of dismissal
of charges against defendant Emerson and remand to the district court for trial.
Only two, however, agreed on the line of reasoning taken to reach it, or,
perhaps, the form of the opinion containing the judgment. The third believed the
opinion, and possibly the reasoning route that produced it, should have taken a
different form. He thought most of the opinion, analyzing the Second Amendment
to the federal Constitution, was superfluous.
What made Emerson a center of intense
public attention, and acrimony, was the involvement of that amendment -- or, as
one judge would have it, not. The majority opinion for the first time squarely
stated that the Second Amendment protects for citizens, in their individual
capacities alone, the right to keep and bear arms.
The morass of doctrine and detail involved has
clouded other important points, from the misapprehension of which the Emerson
case emerges:
The right of individual self-defense is
inherent in living existence, and instilled by nature not only in every human,
but in every living being; and
In this category of law and human doings,
Congress has overstepped its powers under the Commerce Clause of the
Constitution, interfering in a matter that can only be handled sensibly, under
that Constitution, by state governments, in the process creating a needless
mess for courts and lawyers to try to straighten out.
Those are points that address themselves to
legal, even general, philosophy rather than examinations of the-law-as-it-is
such as courts undertake. Most of us know philosophy itself is cloudy and
abstruse enough, and find it a poor expedient for quick and simple understanding
of various matters. But amid its nebulosities, here and there, shine brilliant
points of truth that are easily understood and cannot be denied by any but the
unreasonably obstinate.
The Emerson court noted and followed a
third significant point: that the law is now deemed to maintain Congress can
make our activities criminal even though we do "not know" what we are
doing is "a crime"; the statute making it so is "'obscure
criminal provision' that would be difficult for [most of us] to discover; there
is nothing inherently evil about what we are doing" and we have "no
reason to suspect that" some collateral circumstance "would
criminalize otherwise lawful behavior." The case also invokes a fourth
telling point, dealing with the structure of the Constitution itself: The Second
Amendment was adopted subsequent to the adoption of the Commerce Clause of the
Constitution; the Amendment is clearly labeled "Amendment", so the
Amendment limits and controls powers granted by "the people" to
Congress in the Commerce Clause. That point, though formal, has monumental
implications.
All four are points We the Government have to
address in order to restore the liberties our forbears intended to establish for
us, even preserve as many as are not already eroded.
Cause for Cautious Optimism
The Emerson case has attracted wide
attention because of the majority opinion's lengthy, scholarly explication of
the Second Amendment. Fortunately, correctly, and necessarily, the examination
produced the conclusion that the amendment protects a right that belongs to each
individual person. But there are three reasons why We the Government cannot rest
on that good news, even if the Supreme Court should choose to review the matter
and adopt the Fifth Circuit's view word for word.
First, until and unless the Supreme Court
adopts it, the Emerson view of the Second Amendment will not be treated
as law nationwide, but only in the states subject to the Fifth Circuit's federal
appellate jurisdiction. The opinion itself acknowledges the other circuits
believe the right protected by the Second Amendment is restricted to exercise by
states administering "well-regulated militia" (the
"collective" theory) or to individuals only when engaged in activity
closely related to the operations of such "well-regulated militia"
(the "sophisticated collective" theory).
It may not even be treated as law by every
panel of the Fifth Circuit. Another defendant situated similarly as Dr. Emerson
could find him/herself presented a result by a different panel of the very same
court. Cynics might say it all depends on the attitudes of the judges one draws,
but the hazard has a more legitimate cause.
The special concurring opinion by Judge Robert
M. Parker criticizes the Second Amendment exercise the majority undertook as not
strictly necessary to the decision of the case. If what he says is correct, or
accepted by other panels as correct, then it is obiter dictum,
extraneous commentary rather than legally binding authority (precedent) even in
the Fifth Circuit.
The question of who is right about the
necessity of deciding the nature of the Second Amendment right is an extremely
close one. It refers to the question whether determination of the Second
Amendment's meaning was strictly necessary to decide Dr. Emerson's case in the
posture in which it was presented. And that in turns ultimately relates to the
question whether "necessary" is deemed to mean "expedient,
helpful and thorough" or "indispensable". Such fine definition of
"necessary", for another purpose, was the decisive point in the
seminal case McCullough
vs. Maryland, decided by the Supreme Court in 1819.
There is legal literature supporting either
answer. But the thing to remember is that, in the day-to-day administration of
the law, the question of what is ultimately correct, in the abstract, yields to
that of what judges will deem or consider correct. That does
not mean they can be arbitrary, capricious, or entirely subjective about the
matter, but it does mean judges of different persuasions can adopt one or the
other of two legally respectable positions. That, in short, is the reason
judgments with explanations how they were arrived at are called
"opinions".
It is the role of We the Government to obey the
law as it is currently explained, or violate it, if at all, only in the limited
and process-cooperative context of civil disobedience, then submit to jeopardy
of punishment while arguing that the correct view of the law does not justify
the punishment. That is one method of changing law, changing the prevailing
perception of it, or making it as it should be.
Our role also includes participating in the
legislative process by voting and campaigning and, more importantly, by
messaging our legislators. We aim to persuade them to pass valid and sensible
laws, not merely ones courts may, in this or that jurisprudential fashion, deem
valid and sensible. It is not good enough that legislatures enact statutes that
constrict our rights just because current jurisprudence lets them get away with
it.
The second reason we cannot be tranquil about Emerson
is this: should it be reviewed by the Supreme Court, we can almost definitely
count on its being attacked by a social-appropriateness argument. In the federal
law, that foggy doctrine was most notoriously encountered in Plessy
v. Ferguson in 1896. The Court there sustained a Louisiana statute
requiring white- and black-complected passengers to sit in separate railroad
cars, or separated sections of single railroad cars, when traveling within the
confines of the state. It allowed the state legislature to exercise its police
power to enforce a social custom contrary to the spirit and attitude of the
Constitution and federal law. In so doing, it mentioned "actual and various
conditions of persons in society", "established usages, customs, and
traditions of the people, . . . the promotion of their comfort, and the
preservation of the public peace and good order" and "the general
sentiment of the community upon whom (laws) are designed to operate". That
meant, of course, accommodating the sensibilities of some, despite the clearly
contrary intent of the Constitution
When the Court ordered public schools
desegregated in Brown
v. Board of Education of Topeka, Kansas in 1954, it again relied, in
its famous footnote 4 to the decision, on a finding that disparate conditions of
black and white students prevailing when the Fourteenth Amendment to the
Constitution, mandating equal protection of the laws, was adopted, had abated,
making any contention that all students would benefit from segregated,
"separate-but-equal" schools passe' and fallacious. The result was
correct, but that line of argument preserved and reinforced the treacherous
prevailing-social-conditions doctrine.
In pubic debate of many issues, we have heard
appeals to conform to conditions of "a modern society" or "the
other industrialized democracies", and can well expect to confront a
contention that dispositions the Second Amendment made in horse-and-buggy days
are not "appropriate" to modern conditions. The best rebuttal to that
attack is furnished, of course, by works such as that of Dr. John Lott, notably
his book More Guns, Less Crime, documenting that crime rates drop when
citizens have have relatively unencumbered freedom to keep and bear arms, even
in modern metropolitan communities.
The third hazard is the constant onslaught of
rights-restricting measures motivated by denial that history, experience,
statistical analysis, or ordered logic have any bearing on the merits of social
issues whatsoever. To the extent this obstinacy has any rational basis, it may
be found in such academic propositions as Eric Talley's "Precedential
Cascades: An Appraisal", written for the 1999 edition of the University
of Southern California's Law Review. That analysis argues that jurisprudence,
and, by implication, practically any established conviction anyone has, proceed
from entirely random and happenstance clusters of assertion and affirmation
having nothing to do with validity. It is a perfect companion to the quip that
since history is unkind to socialism, socialists are unkind to history -- or,
for that matter, any empirically determined proposition. Those who advance these
arguments are always standing ready to rescue us from the chaos that ensues if
we believe them with sets of "acceptable" or "preferable" or
"appropriate" propositions they are eager to make mandatory.
The Intrinsic, Inalienable Right of
Self-Defense
But all of this falls short of addressing the
ultimate issue: Should we have some protection of the individual right
to keep and bear arms perched high in our legal structure? Is private keeping
and bearing of arms right?
The answer is, of course it is, and the reason
burgeons all around us. The natural order in which we live features not only
ourselves but other living beings, all pursuing betterment or improvement of
their conditions within their environments, and all attempting, as best they
can, to avoid detriment or death. The drive of each kind to "be fruitful,
multiply, and replenish the Earth" is the compulsion most universally
characteristic of life itself. In the secular analysis of radical
positivism, it is stated as a compulsion to "survive, prevail, prosper,
and proliferate." It is what living beings, including humans, do.
Avoiding death, injury, and detriment (such as,
as a squirrel, having one's cache of acorns raided), is an indispensable part of
that, and exercise of the right of self-defense is, in turn, an indispensable
part of that. Creatures use fight, flight, venom, concealment,
cooperation, fang, sting, claw, quill, shelter, camouflage, practically anything
they can to accomplish self-preservation, self-defense.
Unlike most other creatures, domesticated dogs,
cats, and farm animals being exceptions, humans live in environments in which
artificial components are proportionally very important. We have to exercise the
universal function (therefore, natural right) of self-defense against
particularly powerful artificial hazards.
It is not necessary, or practicable, or even
reasonable that each of us possess means of defense equivalent to those all
aggressors might possibly bring to bear. We cannot, for example, keep
thermonuclear bombs in individual garages. As a practical matter, we do not need
battle tanks or rocket launchers. It is not even absolutely necessary, in a
"modern society", that we have the means to overwhelm assailants. But
we do need enough to deter, with formidable power and noise, any assault that is
reasonably likely to befall us.
Criminals are the most likely threat, and they
notoriously seek helpless victims. They want to achieve their ends against
little or no resistance. They are very likely to proceed by stealth and use
small, portable artifices, that is, knives and guns, and are not very likely to
arrive in battle tanks or attack us with rocket launchers. Most criminals are
driven off by the mere display of substantial, even if not overwhelming, means
of self-defense: common household firearms. Any who are not can be deterred and
delayed, if not dispatched, with same.
Now we are threatened by terrorists who proceed
by infiltration and criminal techniques. Our group security measures will
inevitably be concentrated on what would be considered the most desirable and
dramatic targets. But the fact our foes have resorted to terrorism means they
are ruthless, and striking noncombatants is entirely consistent with their aims.
Deflected from choice targets, they will resort to indiscriminate
slaughter. Disorganizing an enemy by demonstrating its government cannot protect
its population is an elementary terrorist tactic. It is the reason pseudoIslamic
terrorists or other loons are mailing anthrax around.
But their really serious assaults can be
deterred, delayed, diminished or defeated just as those of criminals can,
provided their intended victims retain the means -- personal firearms. The intuitive
affirmation of that is as obvious as the universality of the self-defense
impulse: after hearing all debate and tentatively entertaining any number of
policy preferences, people fearful their governments' protective capacities may
be overstretched or inadequate swarm
to buy personal firearms and ammunition.
Finally, it is legitimate to contemplate abuses
of power by tyrannical aberrations of government: as the Emerson
opinion reflects, the federal government's founders did. No individual or small
group can prevail against the resources of a national government, the agents of
which choose the time, place, and target of assault and can bring overwhelming
firepower and related equipment with them, but it is possible to hold
off the assailants until attention is attracted and a social
judgment on the merits of the confrontation drawn to it. In The
Gulag Archipelago he deplored the fact that Soviet citizens being
abducted on the streets by the KGB, hardly ever raised a cry, called for help,
resisted, attracted a crowd.
It is no more than natural, and entirely
consistent with what our insides drive us to do irrespective of what
indoctrinations our minds have absorbed, when we most insistently protect our
right to retain the means to defend ourselves when, if, and as need be. If by
any chance the Second Amendment is not that guarantee, then We the Government
need to get busy and get another amendment adopted. As a natural matter, any
other course is grotesque, perverse, and absurd.
Clumsy, Meddling Busybodies
Today's second topic for We the Government
attention is an illustration of just how ludicrously institutional government
has been bungling our public business.
Dr. Emerson, of Texas, was charged under a
federal statute nominally aimed at curtailing violence in domestic relations
cases, Title
18 United States Code Section 922 (g)(8). What it actually does is make
domestic breakups particularly difficult and inconvenient for lawful weapons
owners, and with no good
reason.
The statute, part of the 1996 Lautenberg
Amendment to the Federal Firearms Act, among other things forbids a person under
a domestic relations court order of the nature imposed on Emerson, not only to
go out and buy, or transport in interstate commerce, but also to "possess
in or affecting commerce, . . . any firearm or ammunition which has been shipped
or transported in interstate or foreign commerce." The order, synopsized,
prohibited and restrained him from using or threatening violence against his
estranged wife, her child, or her paramour. The federal statute is, obviously,
triggered by a state divorce court placing a party under such an order, making
it necessary for a federal court to inquire into the niceties of state court
procedure to assure the federal statute that depends on it is constitutionally
pristine on due process grounds.
The provision is awkward. Congressional
assertion of federal jurisdiction is clearly an officious intrusion, based on
the pretenses that legislation affecting domestic relations, private firearms,
and abatement of misconduct involving those has anything to do with regulating
interstate commerce, or such regulation has anything to do with it. But for
those pretenses, Congress would not have jurisdiction to meddle in matters
reserved to the states and to individuals under the Tenth Amendment to the
Constitution.
Suppose there were no such law, and someone
involved in a divorce kept a firearm, and then committed a crime with it. What
sort of crime would it be? Murder, attempted murder, assault with a dangerous
weapon, aggravated battery, pointing (presenting) a weapon, maybe even armed
robbery - - - all traditional state charges. And marital status -- married,
judicially separated, divorced -- is most eminently a matter determined by
states. If it were a great idea to disarm spouses made subject to court
injunctions against misbehavior, state legislatures could certainly adopt
measures to do so. With narrow exceptions, it is states and not the federal
government that have been allowed free rein as to infringements on and
regulations of citizens' rights to keep and bear arms. In short, just where does
the federal government get off?
Except in the case of some dedicated agendists
and useful dupes, nobody supporting the Lautenberg amendment cares a bit about
the safety of spouses involved in divorces. The object of this reprehensible
legislation is to single out and harass gun owners. Many people undergo
divorces, many of those processes are bitter, harsh words are spoken, and the
issuance of restraining orders, often reciprocal by consent, each party
confessing for the purpose of the proceeding, and, unwittingly, the purpose of
this statute or others, sufficient evidence to support such an order and thus
waiving later objection that it was not in fact warranted.
Of all of those people, only gun owners are
made felons if they do not promptly divest themselves of lawfully-obtained,
lawfully-held property once put under restraining or prohibitory orders. Owners
of aircraft, kitchen knives, cutlasses, machetes, automobiles, and bowling balls
are not so inconvenienced. The entire 1996 Lautenberg Amendment, passed by being
slipped into a larger, otherwise-concerned appropriations bill, also prohibits
transfer and even the most transitory possession of firearms or any weapons by
anyone who has ever been convicted, on plea or after trial, of any
domestic violence offense, involving weapons, bare hands, or only mouth noise,
even before, even thirty years or more before, the Amendment was passed. It is a
sly, opportunistic, vindictive, and selective assault on gun ownership, a
usurpation of state prerogatives and a circumvention of the Second Amendment,
plain and simple.
The Emerson opinion, written by Judge
William L. Garwood, noted that Dr. Emerson's Commerce Clause argument did not
invoke an examination of that clause as it did, in the majority's opinion, the
Second Amendment. It was a mere simple assertion that Congress exceeded its
authority in enacting the statute, and the district court, noting a prior and
authoritative Fifth Circuit ruling, had routinely overruled it based on the fact
the statute by its terms limits its application to arms involved or possessed
"in or affecting" interstate commerce. Confessing themselves also
bound by circuit precedent, the judges constituting this panel of that court
affirmed. But Judge Garwood noted the more fundamental question, writing in
footnote 8:
Even assuming, as we do, that the instant
firearm traveled in interstate commerce after the September 1994 enactment of
� 922(g)(8), and though we are bound by our prior precedent, it nevertheless
appears to us that the founding generation would have regarded as clearly
illegitimate any construction of the Commerce Clause which allowed federal
prohibition of mere passive, non-commercial, personal possession of a firearm
acquired in accordance with federal (as well as state) law which thereafter
always remained within the state in which it was acquired.
By stretching the Commerce Clause to intervene
in matters that are overwhelmingly state concerns, Congress made state judges'
jobs harder, and probably increased the physical endangerment of people involved
in divorce litigation. But for this statute, people in divorce proceedings,
especially acrimonious ones, could be prevailed on to place themselves under
court orders not to injure, threaten, or harass one another, children,
paramours, or anyone else, subjecting themselves to prompt punishment for
contempt of court should they break their promises.
Doing so, as noted above, requires at least
implicitly confessing there is sufficient reason for the orders to issue in many
jurisdictions, including Texas, where Emerson arose, as the court
noted. It waives notice and a hearing with open-court accusations and, probably,
denials and counter-accusations that are otherwise necessary if protective
orders are to issue. By injecting significant "collateral legal
consequences", as lawyers and judges put it, specifically, the necessity to
move firearms to safe storage out of possession and control, Congress has made
it inevitable that people with notice of those consequences will resist being
subjected to such orders. In short, a stern judicial admonition to "behave
yourself," with penalties for violation attached, impressive to most
people, has been largely removed from state court judges' toolboxes. And so has
a quick judicial remedy convenient for use if litigants become surly.
The number of people affected by the Lautenberg
Amendment must be gigantic, since that jolly measure reaches back an unlimited
number of years for misdemeanors that disqualify their perpetrators from
possessing firearms for life as well as menacing everyone getting a divorce. As
a result, were the statute energetically applied, the volume of prosecutions
would be monumental. And as a result of that, we can confidently assume U.S.
Attorneys use their discretion to select which possible defendants seem
worthwhile to try. This is not to insinuate the friendless or effectively
denounced will be prosecuted and the favored or well-connected go free in every
federal district, but to point out that such temptations should be curtailed
wherever possible.
We the Government need to instruct our
institutional servants to straighten out this travesty forthwith by
withdrawing the federal meddlestick from business that takes effect in and must
inevitably be primarily the business of the states. The States'
Rights and Second and Tenth Amendment Restoration Act of 2001, H.R. 1455, is
now in the Subcommittee on Crime of the House Judiciary Committee. Messages
should call for its favorable reporting-out and bringing to the House floor for
a vote -- as an emergency wartime measure in the suddenly-compelling interest of
self- and national
defense.
Gotcha Law and an Obvious Fact
Dr. Emerson's biggest mistake was representing
himself at his hearing on his estranged wife's application for injunctions
against him. By doing so, he deprived himself not only of a licensed lawyer's
courtroom skills but also, as turned out more important, awareness that if the
injunction were rendered (as it was), he would have to disarm himself with all
deliberate speed or be subject to what eventually happened to him: prosecution
under a federal statute for a felony carrying a five-year-incarceration penalty
for its violation. The Fifth Circuit panel specifically recited:
The district court held that prosecution for
violating section 922(g)(8) would deprive Emerson of his Fifth Amendment right
to Due Process because: 1) Dr. Emerson did not know that possession of a
firearm while being subject to the September 14, 1998 order was a crime; 2)
section 922(g)(8) is an "obscure criminal provision" that would be
difficult for Emerson to discover; 3) there is nothing inherently evil about
possessing a firearm; and 4) Emerson had no reason to suspect that being
subject to the September 14, 1998 order would criminalize otherwise lawful
behavior. United States v. Emerson, 46 F.Supp.2d 598, 611-13.
The appellate panel, not without expressed
reservations, reversed, noting that contemporary due-process (Fifth Amendment)
jurisprudence only required that Dr. Emerson knew he was under the sort of
domestic relations restraining order he was, and knew that he had guns, not that
he specifically knew that combination violated the federal statute.
Finally, we have before us the obvious: The
Second Amendment was adopted after the main body of the Constitution,
in which power to regulate interstate commerce is granted to Congress. Even had
it been adopted contemporaneously, its later position in the document, plus its
designation as an amendment of what had gone before, would have given it the
same effect. It controls and inhibits the Commerce Clause's grant of power to
Congress. A literal, plain-view reading of the Constitution, as amended, means
Congress is not empowered to regulate interstate commerce in any way
that infringes on citizens' rights to keep and bear arms, or even forbid or
regulate the keeping or bearing of arms on conveyances in interstate commerce.
That latter proposition is not as shocking as
it appears. Project:
Safe Skies is an online think-tank devoted to proposing measures most likely
to effect airliner and passenger security. Its participants' research, still
preliminary and sketchy, has so far turned up only one gunfire incident aboard
an aircraft prior to 1961, when the first (unconstitutional?) statute forbidding
the bearing of arms on aircraft was passed by Congress. That one involved a
disturbed teenage would-be hijacker, not a ticketed passenger, who stormed the
plane with a pistol in 1954, when pilots were still required to carry pistols as
custodians of the U.S. Mail. The pilot shot him fatally before taking off.
Otherwise, nothing was found until 1965, after passengers had been disarmed.
As has always been the case with lunatics,
felons, and infants, even the unequivocal language "shall not be
infringed" is not administered absolutely. When a compelling need to
restrict a constitutional right, (as a cry of "fire" in a crowded
theater, or divulging of national security secrets are permitted to restrict the
right of free expression although "Congress shall make no law . . .
abridging" it.) We the Government need have no fear of claiming our
freedoms.
Doing so, however, will require not only
desultory participation in elections and e-mail chat groups, and hoping for the
best when our rights to to trial in courts, but seeing that Congress not enact
legislation extending to the full limit of what courts at times consider
constitutional, or even, if actually and unquestionably constitutional
legislation is oppressive, extending to the full scope of real
constitutionality. As the Emerson opinion reflects, many framers of the
Constitution believed the people would so zealously monitor Congress that a Bill
of Rights would be superfluous.
History has since taught us that even with the
latter, we dare not shirk the former.
Also by John G. Lankford, J.D.
