Why the Supreme Court Majority, in Misinterpreting the Second Amendment, has Violated the Canons of Statutory Construction

June 19, 2015

A well regulated Militia, being essential to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  U.S. Constitution, Amendment II [1791]

That’s the Second Amendment, one of ten included in James Madison’s proposed first thirteen amendments to the Constitution. Ten of those thirteen were fairly promptly ratified and became the “Bill of Rights”. They are rightfully thought of as a bulwark against the over-expansion of the strong central government that Hamilton had pushed for, and specifically protections for the individual against the power of the federal government (and, since the ratification of the 14th Amendment, against the power of state and local governments).

The U.S. Supreme Court’s current conservative majority has taken the Second Amendment in this context, and has focused on its second half, “…the right of the people to keep and bear Arms, shall not be infringed.” In doing so, however, that majority has violated a central canon of statutory construction – that a statute (or constitutional provision) be interpreted to give meaning to every word of the statute.

The first half of the Second Amendment, “A well regulated Militia, being essential to the security of a free State,” can be seen as a preamble, or perhaps more precisely as a context for the second half. Another rule of statutory construction is that the words of a statute should not be read in isolation, but in context. Here, the context of the second half of the amendment is protecting “a well regulated militia” and its function of protecting “the security of a free State.”

In other words, the right to keep and bear arms is protected so that the people of the United States can continue to have “a well regulated militia”. Again, keeping the context in mind, in 1789 (or 1791) there was no standing federal army. An army was raised as the need arose. In the meantime, there were local and state militias – what we would now call paramilitary organizations, or perhaps militias as the term is used in places like Afghanistan and Iraq.

So, in that context, the right of “the people” to keep and bear arms is not an individual right, but a right of the people as organized into militias. Further, those militias were intended to be, “well organized”. Indeed, that was supposed to be the central purpose of having the right to keep and bear arms. A militia needs training and discipline if it was going to function well to protect the security of a free State. (And again, this should be taken in the context of a document written ten years after a prolonged war against what was then the central government, and fought largely by local and state militias organized under General George Washington.)

Bringing those concepts into the 21st Century, the right to keep and bear arms does not protect an individual’s right to own and carry guns (or sabers, or hand grenades).  Rather, it protect the right of the people, organized into well regulated groups intended to protect the security of a free State.

What do such organized militias include? Well, obviously they include the National Guard, as state militias have come to be known, and their members. They also include state and local police forces, which are intended to “protect the security of a free State.” They could also include well regulated local, state or national groups organized to protect the security of a free State. Could that include so-called “self defense” groups? Maybe. Right-wing paramilitary groups? Questionable. Groups of gun-toting skinheads or neonazis? Probably not. The Ku Klux Klan? I don’t think so.  They certainly don’t include individual citizens who aren’t part of a “well organized militia”, and certainly not the millions of deranged individuals and criminals who now, thanks to the majority of the U.S. Supreme Court, claim the right to keep and bear [and use?] arms.

Those on the Supreme Court (and I am thinking specifically of Justice Scalia) who strongly espouse strict constructionism and original intent in interpreting the Constitution, appear to have been lured by ideological predilections into straying from their self-chosen narrow path by broadening the meaning of the Second Amendment. Perhaps, in the context of the Charleston Massacre, it’s finally time they reconsider.

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Strict Construction, Gun Violence, and the Second Amendment

January 10, 2011

The assassination of a federal judge and attempted assassination of a congresswoman, along with the killing of several “civilians”, once again brings to the fore the issue of gun violence and the Second Amendment.  This is especially true now that the Supreme Court majority has applied so-called “strict constructionism” to find that the Second Amendment protects private gun ownership from almost all federal and state regulation.

Justice Scalia, one of the court’s more vocal advocates for strict constructionism, argues that the Constitution’s interpretation can’t change with the times.  According to him, if circumstances change, the answer  is to amend the Constitution accordingly.  By that standard, it appears the time is overdue to amend the Second Amendment.

Back when the Constitution, and specifically the Second Amendment, was written, the primary firearm was the flintlock musket, an inaccurate, short-range, and slow-to-load single-shot gun.  There were also handguns, but they were dueling pistols and the like — again inaccurate, single-shot, and clumsy to use.  Contrast that with the ten bullet clip-carrying semiautomatic pistol used by last Saturday’s assassin, or the Uzi or M-16 type assault weapons favored for gang violence, or, for that matter, the extremely accurate multi-shot high-powered rifle used to assassinate John F. Kennedy.  There’s no comparison.  Indeed, once could argue that they shouldn’t even be described by the same word, and that “arms” as used in the Second Amendment had an entirely different meaning than the guns, IEDs, and other weaponry available to conduct modern-day violence.  Nevertheless, Scalia, the NRA, Teapartiers and their ilk insist that the Second Amendment allows free rein to gun-toters. 

Given the results of last Saturday, and looking abroad to places like Pakistan and Afghanistan, where assassinations are becoming an almost daily occurrence, the question is, isn’t it time we amended the Second Amendment?  Sure, maybe a single-shot hunting rifle or a BB gun doesn’t need regulation, but an AK-47 or semiautomatic handgun is an entirely different story.

If people like Scalia are sincere in their assertion that the proper course of action when the Constitution no longer works well is to amend it, it’s time for him, and those like him, to get behind a movement to amend the Second Amendment to assure that the kinds of weapons that can cause mass-mayhem aren’t easily available to would-be assassins.

While we’re at it, it’s also long past due to take into account the changed nature of the media and of election campaigns.  The Supreme Court’s Citizens United decision of last year practically turned the U.S. political system over to corporate control.  We really do need an amendment to recognize that the nature of political campaigning has fundamentally changed.  Unregulated campaign spending might have been perfectly OK in the confines of the thirteen original states, where almost anyone could afford to run off a broadside and have it hand-distributed by volunteers.  In this era of TV and radio ads, mass-mailings, focus groups, and psychologically attuned campaign consultants, however, it is increasingly true that we have been trapped by the “golden rule” — Those who have the gold make the rules.  That certainly wasn’t what the writers of the First Amendment envisioned.  If it takes a Constitutional amendment to bring power back to the people, then we need to get started on that process.

One last thought on Scalia and his strict constructionism friends:  The writers of the Constitution were not gods.  They were men coming from divergent situations attempting to cobble together a working structure for a national  government.  The Constitution includes numerous compromises reached to accommodate the differing view of the powers-that-be in different colonies.  Those compromises, and the reasons behind them, have now been well-documented.  While some of the divergences continue to exist — e.g., between large population and small population states, between urban and rural states, others, such as those associated with slavery, have long-since vanished.  Further, we have, over time, come to realize that some of the Constitution’s structures and procedures were neither functional nor fair.  Some of the worst of these, such as having Senators chosen by state legislatures, have been corrected.  That doesn’t mean, however, that we need to accept the current Constitutional structures and procedures as God-given mandates carved in stone.  Indeed, after almost two and a quarter centuries, maybe it’s time to consider a new Constitutional Convention. … Just a thought.


Election Day!!!

November 2, 2010

If you’re looking at this on November 2nd, you’re probably looking for advice on how to deal with your ballot.  I’ve put up several posts with my recommendations and comments.  (However, they won’t help you very much unless you vote in California.)  Please go down through my posts until you find those of interest to you.  They start below continue from there.  Here are links (in chronological order) if you want to get there fast.  The titles are mostly self-explanatory:

https://stuflash.wordpress.com/2010/09/11/first-comments-on-the-november-election-proposition-22/

https://stuflash.wordpress.com/2010/10/01/more-on-the-november-ballot/ — statewide ballot measures

https://stuflash.wordpress.com/2010/10/14/november-election-last-installment/ — candidate recommendations

https://stuflash.wordpress.com/2010/10/15/on-the-oakland-mayoral-race/

https://stuflash.wordpress.com/2010/10/15/thoughts-on-local-ballot-measures/


More on judicial voting

October 21, 2010

The California Supreme Court just came out with an interesting non-decision that bears on the November election’s confirmation votes.  The justices voted not to hear a petition for review on a recent appellate case on free speech in shopping centers.  At issue was a preacher who was talking to willing listeners about his religion.  A security guard came up and told him to stop.  When he refused, he was handcuffed, arrested, and escorted from the mall.  He was later released and charges were dropped, but he sued the shopping center for false arrest and interference with his California free speech rights.  While the trial court rejected his suit, the court of appeal, in an opinion written by the new chief justice, Cantil-Sakauye, reversed.

Cantil-Sakauye’s opinion pointed to a California Supreme Court opinion from the Bird court some thirty years ago that said that the California Constitution’s free speech rights guarantee was broader than that of the U.S. Constitution, and covered semi-public places like shopping malls.  Under that ruling, and subsequent appellate case law, while shopping malls can make reasonable regulations about the time, place, and manner of speech, they can’t make content-specific rules unless those rules are justifiable under “strict scrutiny”.  The rules this mall had promulgated, which only allowed conversations related to commercial  transactions, were absurdly narrow and subject to blatantly discriminatory enforcement (as was evident in the case).  Nevertheless, Justice Ming Chin, along with Justice Baxter (the long-standing right-wing bulwark of the court) voted to grant review.

Cantil-Sakauye and Ming Chin are both on the ballot for confirmation this election.  This appellate decision and its supreme court review suggest that you might want to vote for one or the other, but not both.  If you agree with Cantil-Sakauye’s ruling, you should probably vote for her and against Ming Chin’s attempt to reverse more than thirty years of precedent.  If you’d rather have restricted speech in shopping malls (which is where Ming Chin probably wanted to take things), you should vote for him and against her.


What about the Judges?

October 17, 2010

I think the question I get asked most about the election ballot is, “How should I vote on the judges?”  It’s understandable.  For one thing, the judicial campaigns provide very little information.  Other than the local superior court races, the official election pamphlets say absolutely nothing, and there is no campaign material provided by the “candidates”.  The other thing is that, as an attorney, it’s assumed that I’ll know all about the various judicial races and their candidates. 

Well, it is true that as an attorney who does litigation, including handling appeals, I do have some contact with a portion of the bench, but my knowledge tends to focus in my particular areas of practice and my particular appellate district.  There are really two salient facts about judicial races:  1) the vast majority of the electorate has no idea about what makes a good judge, nor sufficient information about the candidates to make informed choices, even if they did; and 2) except for elections for open seats on the local bench, almost all judicial retention elections are little more than formalities.  With the exception of when the Republicans targeted the Rose Bird court, I’ve never seen an appellate judge get less than a 90% vote in favor of retention.  Does that mean that everyone’s happy with their performance?  No, it just means voters don’t feel qualified to vote no — and they’re right.

In fact, I’d argue that the general public isn’t qualified to vote on any judicial office.  Voters simply don’t, and can’t be expected to, know enough to make informed choices.  So, what should we do instead?  Should we go to the federal system, where a judge, once appointed, serves for life?  Maybe, but that means the only way to remove a poorly performing judge is impeachment, which is a drastic, very rarely used, and very cumbersome procedure.

I’d argue that, at least at the appellate level, there’s another option.  Instead of having judges go before the voters every six years for a retention vote, how about if they go before the legislature every six years for a similar vote?  After all, judges, especially appellate judges, spend a lot of their time interpreting laws that the legislature wrote.  Who better to decide whether they’ve done a good job or not?  To prevent the votes from becoming merely a partisan removal process, only a 2/3 vote for removal in both houses would remove a judge from office.  This would not, however,  be like impeachment.  There would be no trial; no specific allegations of wrong-doing.  Rather, it would be akin to the reappointment of other state officials, like members of the coastal commission or the state water resources control board. 

As for local judgeships, it does appear to me that there needs to be a way for better information to be made available to the voters about sitting  judges’ performance, as well as the qualifications of those seeking election.  Perhaps there could be, in each county, a nonpartisan judicial evaluation committee elected by the attorneys whose offices are in that county.  The committee would be charged with doing an evaluation, prior to each judicial election, of the candidates.  As with the evaluation of judicial appointment candidates, there would only be a limited number of ratings:  less than qualified, qualified, well qualified, and perhaps very well qualified.  The committee would also be responsible for compiling objective statistics for judges running for re-election.  The information would be included in the voter information handbook.

Perhaps these suggestions are less than perfect, but they’re certainly better than the groping in the dark that voters now do.


November Election – Last Installment

October 14, 2010

OK.  Now we finally get to the nitty-gritty — the candidates.  I’m going to start at the top and work down.  That way, if you’re not living right next door, you can read as far as applies to your ballot, and then stop (unless you’re just curious about other people’s elections).

So, at the top of the ballot (figuratively speaking) is the U.S. Senate.  This is one of the easier races for me.  I happen to like Barbara Boxer and have found myself agreeing with her on almost every issue that comes up.  Fiorina has criticized her for being “ineffective”.  I’m not sure how you can be effective in a gridlocked Congress like we’ve got now.  Aside from that, the kind of places Carly wants to go are not places I’d like to be:  more restrictions on abortion, more outsourcing of jobs abroad, less environmental protection, more global warming, less spending on education and more on the military.  YUCK!!!  Boxer is an easy choice.

Once you get down to the statewide offices, I find it harder to get excited.  It’s not so much the lesser of two evils as it is trying to choose among levels of mediocrity.  But, choose we must.  This year (as in most years) I am guided by Ivins’ Rule — which I was introduced to by the late Molly Ivins.  Ivins’ Rule says that, just before you cast your ballot, look at the results from the most recent and reputable poll.  If the poll shows more than a five point difference between the Republican and Democratic candidate, you’re free to vote your conscience.  You’re vote is very unlikely to affect the outcome anyway.  If the difference is less than five points, however, hold your nose and vote for the Democrat.  It’s a rare day indeed (at least in California) when the Democratic candidate, no matter how wishy-washy and disgusting, would be worse than the Republican, and the winner is (sadly) almost certain to be one or the other.  So, with that as as introduction, on to the races:

Governor — GOD, I wish we had good candidates to choose from!!!  Between Jerry Brown and e-Meg Whitman, it seems to be a battle over who can talk and act in stupider ways during the campaign.  Neither one seems to have any novel or insightful ideas about how to address the state’s intractable deficit problem.  Jerry appears very beholden to the state employee labor unions, while Meg is the darling of the coupon-clipping millionaire set.  If there’s at least a five point difference by election day, please vote for your favorite minor party candidate.  Don’t let Jerry think the electorate really likes him, and please don’t let him win by a landslide.  He’d be even more insufferable than he already is.  If it’s less than five points, however, please vote for Jerry.  He may not be good, but Meg would be worse.

Lieutenant Governor — This position holds some minor power, mostly due the boards the holder sits on ex officio, like the State Lands Commission and the boards of UC and CSU.  The two major party candidates are as lackluster as the office.  Gavin Newsom is memorable for having turned most of his entirely Democratic Board of Supervisors against him and battling with them at every turn.  Abel Maldonado’s main claim to fame is that he eventually voted for a Democratic proposed state budget, after extorting what he could out of the Democratic leadership.  The best one can say is that neither would be in a position to do major damage to the state.  None of the minor party candidates look very impressive either.  Sigh …  However, Maldonado is still somewhat to the right of Newsom, and getting Newsom elected will benefit San Francisco by getting him out of the mayor’s office.  Newsom, by a hair.

Secretary of State — Debra Bowen hasn’t been a bad secretary of state.  She just hasn’t been a particularly creative or innovative one.  The Secretary of State is responsible for state elections.  Bowen has been a tepid supporter of ranked-choice voting, which is not as good as proportional representation but better than the conventional system.  After much hemming and hawing, she did approve it, which is something.  The Republican would be a step backwards.  Bowen, but without much enthusiasm.

Controller — OK.  Here, finally, we’ve got an incumbent who really deserves to get re-elected.  John Chiang has been willing to call a spade a spade on the state’s financial situation and has not tried to sugar-coat the failures of the governor and legislature to come up with a budget.  He was also willing to stand up to the governor on whether the governor had authority to unilaterally furlough state employees.  In other words, he’s got guts.  Chiang is an easy choice.

Treasurer — Bill Lockyer, the incumbent, has bounced around among state offices, first in the legislature, then as Attorney General, and now as Treasurer.  He’s done a decent job in each position, although in none of them has he been truly outstanding.  Nevertheless, he’s been pretty honest about the damage that the state’s budget crises is doing to California’s financial standing, and critical of both governor and legislature for not getting the budget done.  He’s done a good enough job to merit re-election.

Attorney General — I differ from many of my Democratic friends on this race.  They’re enthusiastic about Kamala Harris.  I’m not.  To my mind, she’s far too political to be a good Attorney General.  IMHO, an AG needs to be willing to go after ANYBODY who’s violating state law, regardless of position or party affiliation.  From what I’ve seen of Harris in SF, she hasn’t done that.  She’s also very politically linked to Obama and his group within the Democratic Party machinery.  Like Jerry Brown, I suspect she’ll turn a blind eye to misbehavior if the offending party is well-connected.  Her main opponent, however, Steve Cooley, is a hard-line law-and-order Republican along the lines of George Deukmejian.  I don’t believe that kind of philosophy, with its emphasis of “lock ’em up”, is particularly effective in dealing with crime.  A reluctant nod for Harris.

Insurance Commissioner — So, here you’ve got two legislators — one Republican, one Democratic, who’ve attempted to push through some insurance reforms in the legislature.  BUT, the insurance commissioner isn’t a legislator; he/she is an administrator and quasi-judicial officer who gets to make determinations on the propriety of insurance rates and write administrative rules for insurance companies.  In the past, insurance commissioners have sometimes been “captured” by the industry they’re supposed to be regulating.  It’s again a danger with either candidate, but probably more of a danger with Villines.  I plan to vote for Jones (but will also think about Ivins’ Rule).

Superintendent of Public Instruction — This one’s a toughie: a legislator vs a school administrator.  Torlakson, the legislator, has been involved in education issues in the legislature, but he’s also been closely tied in with the teachers’ unions.  Aceves, a retired school administrator, has had experience at the local, but not the statewide, level.  Still and all, I think this  position needs to be filled by someone who’s not beholden to a special interest.  I’m afraid that Torlakson doesn’t fill that bill.  I’m going with Aceves.

Appellate Justices — I’m going to start with my standard statement, which I say every two years — the electorate had no business voting on these positions.  Voters don’t know enough about what judges do to be able to make educated decisions about whether they’re doing it well.  Further, the vote is far too easily turned into a political witch-hunt, as it was by right-wing Republicans against the Rose Bird court.  In addition, unless someone turns it into a witch-hunt, justices are routinely retained with greater than 90% of the vote in a meaningless show of “support”.  That having been said, here are my thoughts:  Cantil-Sakauye — Her reputations is that she’s a moderate to conservative judge, which would put her smack in the middle of the current Supreme Court, probably pretty close to where Chief Justice George was.  I personally would like to see the court move a little bit towards the left, or at least away from the right, but turning this justice down wouldn’t do much of anything. YES.  Ming Chin — This is one of the two or three most conservative justices on the current court.  IMHO, he’s definitely to the right of the California mainstream.  I wouldn’t be unhappy if he were replaced by a more moderate justice.  He’ll still get retained with over 90%, but if you’d like to protest the court’s rightward movement, this would be the place to do it by voting NO.  Moreno — Moreno has been the most liberal justice appointed to the court in the last fifteen years.  That’s not saying a hell of a lot, but he has been a pretty fair judge, IMO.  YES.

Moving down to the more local Bay Area First Appellate District Justices, here are my one word recommendations:  Banke — NO  [no opinion]; Dondero — NO; Lambden — YES; Jenkins — NO; Siggins — YES; Reardon — NO; Bruiniers –NO; Needham — NO.  And, at the county level, I’d recommend Kolakowski over Creighton, as I did in the primary.  IMHO, we have more than enough former DAs as judges.

FINALLY, getting down to local elections, here are my suggestions:

Oakland Mayor — I tend to generally agree with the recommendations of the East Bay Express.  Three of the major candidates:  Quan, Tuman, and Kaplan, deserve serious consideration.  I also personally feel that Don Macleay and Greg Harland have interesting things to say.  (See my post on the mayoral forum for more details.)  However, PLEASE, PLEASE, PLEASE do NOT vote for Perata for first, second or third choice.  I’ve watched Perata for over twenty years, and IMHO he’s as sleazy as they come.  He is exactly what we DON’T need as Oakland mayor.

Oakland City Auditor — Cortney Ruby has done some good work as auditor, and on that basis, I think she deserves to be re-elected.

Berkeley City Council — While I don’t live in Berkeley, I’m going to throw in my unsolicited opinion on a few of the races:  District 4 – Jesse Arreguin ; District  7 – Kriss Worthington: District  8 – Stewart Jones

Richmond Mayor — This one’s easy.  I’ve watched Nat Bates over the past twenty years, and IMHO he epitomizes the worst of Richmond politics.  By contrast, the current mayor, Gayle McLaughlin, has been a breath of fresh air; willing to challenge the entrenched political powers that have run Richmond into the ground over the past thirty years.  Bates’ campaign has also cooperated with the police and fire unions in running a very nasty smear campaign against
McLaughlin, based on health problems she had some fifteen years ago.


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