Tuesday, March 19, 2013

On Monday night, February 4th, iSymposium reconvened for the second of a two part series on the issue of gun control.  The text under scrutiny was the landmark Supreme Court ruling, DC v Heller (2008).

Now, readers may wonder – “What? A Supreme Court Case is not a great book. It’s a technical document full of “legalese” ordinary people can’t read without a law degree.”  To this, we reply: “This is, respectfully, not true.  You can read it, and you don’t need a law degree!”  But let me state a few reasons why it might be a good idea to offer and participate in seminars on Supreme Court Cases.
First, both the United States Constitution and the Opinions of the Court are primary sources texts which often touch on great fundamental questions of importance to not just a select class of people, but to all people.  I might have said only citizens of the United States, and properly speaking this is true.  But many of the greatest cases raise deeper questions about the best relationship between laws and the order of powers in government, or the relationship between the government and the people, and the nature and extent of fundamental rights of man as man.
A second reason for conversations on Supreme Court Cases comes from our belief  – following Tocqueville – that the American Legal System – for all of its well-known problems – remains America’s “free school”.   While Constitutional cases can sometimes be very technical – in general the most important cases are clearly and artfully written, in such a way that generally educated citizens can read them.  Cases as they are written – both the Opinion of the Courts and the Dissenting Opinions – frequently provide historical accounts of Court decisions and precedents at issue. So you don’t need to consult much outside information to get a handle on the ideas and arguments presented.   Furthermore, these cases are made available by the Court for everyone.  It would not be merely hyperbolic to claim that Supreme Court Cases are our birthright – to be more informed citizens of a democracy, we ought to make it our business to read the words of the Justices themselves – to go directly to the source, not rely on Cable Networks to tell us how to understand rulings.   The Cases serve as powerful vehicles for educating us about our common rights and – not only this – but our common interest as citizens of democracy.
The third reason for offering SCOTUS cases is that they present models of argumentation at the highest level on the most important issues that concern all of us.  Step outside of the worn-out political polemics of Cable News or even more trenchant and biased alternative media sources.  In principle and practice, the Supreme Court is intended to present the clearest legal thinking on current issues (as they pertain to the Constitution) by men and women who are not blown about by the winds of fashion and fortune – at least not as much as pundits and politicians.  The divisions of opinion and rhetoric still exists in SCOTUS decisions, but there is a clarity about the argumentation and procedure that can help thoughtful folks learn about the real issue and the real conflicts at stake – whether we’re talking about issues like health care, gun control, gay marriage, violent video games and so many others, Court decisions are one of the best and even purest sources we can consult to get a handle on the issue itself.  We can go to them just to see what the devil is the issue after all: that’s why it’s so valuable to read and talk about SCOTUS decisions.
Cases in American Law begin with a conflict between two parties.
In this case, a District of Columbia law which banned handgun possession, as well as carrying an unlicensed handgun. It also required residents to keep lawfully owned firearms unloaded and disassembled or bound by a trigger lock or similar device.
“Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home.” (From the Case Syllabus or summary)
The prohibition was overturned by the Court.
Now, DC v Heller is the first case since the framing of the Bill of Rights – in over 150 years – to take on and explicate the meaning of the Second Amendment. It becomes clear from reading the case that it is not the final word. Justice Stevens attacks Scalia for leaving open the scope of the Government regulation; as Scalia argues in Section III, the Second Amendment is not an unlimited right, but the government has the power to regulate firearms on a number of grounds – but he does not list these grounds exhaustively.
The Second Amendment, by the way, 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.”
The entire case turns on how to read the text of the Second Amendment.  Does the Second Amendment only protect the right to keep and bear arms connected with militia use? Or does it protect an individual right unconnected with militia service?
Justice Scalia, who wrote the opinion of the Court, argues that:
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” (Syllabus)
You may be wondering how we get from the the Second Amendment to Scalia’s interpretation.  Justice Stevens, who wrote one of two dissenting opinions, wonders as well, and argues that the more natural reading of the Second Amendment is this: it enumerates a single right and duty to have arms available and ready for military service and to use them for military purposes when necessary.
Moreover, the Pennsylvania and Vermont Constitutions at the time stated explicitly an individual right to bear arms for hunting or self-defense. Stevens asks the Court why the Framers didn’t just add self-defense to the prefatory clause, if that is indeed what they intended?
Socratic conversation is spontaneous – it follows the arguments where they lead.  A pre-programmed order of questions is not imposed – the conversation is given the maximum latitude of freedom (while staying on topic and the text).  The reason why is that this freedom allows the conversation to yield insights and important arresting questions which might otherwise be concealed by the programmed order of questions.  Jon Haron, the leader of the seminar, took notes on the following questions that came up in the conversation:
  1. What is the essential reason Scalia’s opinion gives for why the operative clause of the 2nd Amendment provides a personal right to have a gun?
  2. Why does Scalia argue the prefatory clause has neither an expanding nor a limiting effect on the operative clause? Do you agree?
  3. To what extent is the textual analysis in Scalia’s opinion dependent or independent of the historical analysis? Supposing he were wrong on the history, would his textual analysis be flawed too?
  4. Scalia’s opinion announces limits to the 2nd Amendment right but does not describe a standard for ascertaining those limits. Was this a serious or an insubstantial omission in his opinion?
  5. The Stevens opinion disputes almost every aspect of Scalia’s historical analysis, often interpreting the same evidence to the opposite effect. Who do you think has the better of the historical argument?
  6. Do you think the controversy over the historical evidence undermines the conclusiveness of the Originialism methodology? Are there other interpretative method would you suggest to help derive meaning from enigmatic laws?
  7. If Stevens argument is right that the 2nd Amendment is for the most part a collective, and not a personal, right, does his reading cast the 2nd Amendment into obsolescence? If so, how much does that strengthen the case for Scalia opinion?
  8. Were you persuaded by the way Breyer’s opinion reformed the question in the case, from whether there is a personal right, to what is the scope of the right?
  9. Do you agree with Breyer’s conclusion that the appropriate level of review for the 2nd Amendment is the Intermediate Scrutiny standard that would involve an interest-balancing analysis? If not, do you agree the level of review should be higher (Strict Scrutiny), or lower (Rational Basis)?
  10. All things considered, whose arguments did you find most persuasive in the case? And were you left fully or only partially persuaded?
One of the interesting things about DC v Heller is the conflict of interpretations over a single line of text in the Constitution.  The nature of a written constitution such as ours, the questions of the organization and role of powers in government in general, is an interesting question raised by this case.

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