We the Government -- Self Defense is an Individual Right

Josey1

We the Government -- Self Defense is an Individual Right By John G. LankfordOctober 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 BusybodiesToday'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. http://www.keepandbeararms.com/information/XcIBViewItem.asp?ID=2736