DC v Heller Decision - Second Amendment Protects Individual Right

As predicted in my earlier blogs on this case, the Supreme Court today held 5-4 in DC v. Heller that the Second Amendment protects an individual right.

As stated in the syllabus, Justice Scalia's majority opinion announces 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."

Regarding the linguistic interpretation of the Second Amendment, which confoundingly 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 Court said that the "prefatory clause" (i.e., the language up to and including "... free State"), while it announces a purpose, does not limit the purposes for which the right identified in the "operative clause" (ie, "the right of the people to keep and bear Arms, shall not be infringed") may be used - including the right to keep arms for self-defense.

Interestingly, on the narrow technical question of whether the Second Amendment protects an individual right, it would appear that all nine Justices agree. As the first lines in Justice Stevens' dissent comments, "The question presented by this case is not whether the Second Amendment protects a 'collective right' or an 'individual right.' Surely it protects a right that can be enforced by individuals."

Where the dissent differs, however, is in how far that individual right goes. As Stevens continues, "But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."

On this point, all nine of the Justices also agree that some measure of regulation of the right to bear arms is acceptable. The majority allows, for example, that the following sorts of restrictions would not necessarily violate the Second Amendment:

• concealed weapons prohibitions;
• longstanding prohibitions on the possession of firearms by felons and the mentally ill;
• laws forbidding the carrying of firearms in sensitive places such as schools and government buildings;
• laws imposing conditions and qualifications on the commercial sale of arms;
• historical prohibitions on the carrying of dangerous and unusual weapons (weapons protected are only those “in common use at the time” of the Second Amendment's drafting (ie, 1789).

So, in a way, the majority and dissent are largely in agreement: there is an individual right, and certain regulations are acceptable. Where they disagree is in how restrictive those regulations may be. Whereas the dissent believes a total ban on guns (as in the DC ordinance at issue in the case) would be okay, the majority says that in no event may the regulate impose an outright prohibition.

So what will this mean? It means there will be a lot of litigation to determine whether certain federal restrictions on guns are constitutional. It will also mean that State and Local laws will be challenged, and the next BIG question for the Court will be whether the Second Amendment even applies to the States.

The Bill of Rights, by its terms, only applies to the federal government; however, within the last eighty years or so the Supreme Court has held that almost every other one of the twenty-five or so protections contained within the Bill of Rights (such as the First Amendment freedom of speech and religion; the Fourth Amendment right to be free of unreasonable search and seizure, and the Eighth Amendment's right to be free of cruel and unusual punishment) applies also to the states - but it has simply never addressed within that time the issue of whether the Second Amendment applies to the States.

Assuming the Court holds that the Second Amendment applies to the States, as I argue it should in my 2007 piece in the Missouri Law Review entitled, "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses," there will then be a lot of litigation on whether state and local restrictions survive the Second Amendment.

So is this a good decision? Yes. As I've argued previously, it's always a good thing when the Court recognizes a constitutional protection of an individual liberty interest. A faithful reading of the Constitution does not allow us to pick and choose from among rights we like or dislike, and we bolster all of our rights, both enumerated and unenumerated (e.g., right to privacy, right to be free of government interference in actions which do no harm to others), when we adopt an expansive view of individual liberty.

Second Amendment Oral Arguments in Supreme Court

I had the privilege today of hearing personally the oral arguments in the U.S. Supreme Court of the major Second Amendment case, DC v. Heller.

From the questioning, it sounds like the U.S. Supreme Court will find the Second Amendment protects an individual right - a welcome development, as I discuss in an OpEd published in today's Detroit Free Press.

Interestingly, the sides were really not that far apart - both correctly note that reasonable regulation of guns is acceptable. Where they differ is whether a "reasonable" regulation includes an outright ban on guns, as DC argues; or whether an outright ban is "unreasonable," as Heller argues (and agreed with by the lower court in this case).

Here's the text of the Free Press OpEd:

The U.S. Supreme Court will hear arguments today about whether individuals have the right to own a gun -- one of the most important constitutional law cases of the past 100 years.

The reason this case, D.C. v. Heller, is so important is that it involves an individual right guaranteed in the Bill of Rights that most lower courts throughout American history have held simply does not exist. The U.S. Supreme Court, by contrast, has never addressed the question of whether the Second Amendment protects an individual right, and in fact has heard only one Second Amendment case in well over a hundred years (1939).

The Supreme Court in D.C. v. Heller has a chance finally to do the right thing and settle the question that the Second Amendment protects an individual right. This would be a positive step, because a faithful reading of the Constitution does not allow us to pick and choose from among rights we like or dislike, and we bolster all of our rights, both enumerated and unenumerated (e.g., right to privacy), when we adopt an expansive view of individual liberty.

As for what this case means to the average person, let's say average-Joanne wants to keep a gun under her pillow at night for security; while average-Joe, for the common good of society, wants Congress to prohibit her and everyone else from doing so. Who wins?

Joanne wins, and can keep her gun, if the Supreme Court upholds the lower court decision that the Second Amendment protects an individual right. Joe wins, and the government can ban guns (as the District of Columbia did in this case), if the court holds that the amendment instead protects a "states' right" to arm the people collectively.

But the fact is both Joanne and Joe also win under the individual right position. To say the Second Amendment protects an individual right simply means that the government cannot prohibit firearms, but nothing prevents their reasonable regulation. Other individual rights, such as First Amendment freedom of speech, are properly subject to government regulation, though never prohibition.

An increasing number of courts now conclude that the Second Amendment was intended to protect an individual right.

The reason the amendment has been misinterpreted for so long is that its language is unclear. By stating, "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 amendment opens itself up to argument on whether it is intended to protect only a collective states' right as opposed to an individual right. Virtually every federal or state court considering the question over the past century has adopted the former perspective -- until now.

By recognizing that the Second Amendment protects an individual right subject to reasonable regulation, the court will protect both average-Joanne's individual right to own a gun and average-Joe's common-good interest in regulating them.


MICHAEL ANTHONY LAWRENCE, a professor at Michigan State University College of Law, is the author of "Second Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" in the Missouri Law Review (Winter 2007). He blogs at http://www.progressiveliberty.blogspot.com/.

Just another note beyond the OpEd - the sorts of acceptable regulations, even when the Second Amendment is interpreted to protect an individual right, would include those offered recently by the New York Times editorial page :

“Requiring background checks for every gun purchase. That means closing the egregious loophole that permits unlicensed dealers to sell firearms at gun shows without conducting any background check.

“Limiting purchases to one gun a month in order to defeat traffickers who use straw purchasers to buy weapons in bulk and then resell them on the street.

“Once again banning the sale of military-style assault weapons and high-capacity ammunition magazines like those used by the Virginia Tech and Northern Illinois University killers.”

Second Amendment Case - The Technical Arguments

What specific technical arguments will the Supreme Court hear in DC v. Heller, the historic Second Amendment case to be argued before the Court on March 18, 2008, in which the Court will decide whether the Second Amendment protects a States’-right, as opposed to an individual-right, to keep and bear arms? (Basically, if the amendment is found to protect an individual right, Congress may not ban an ordinary person from having a gun.)

The Second Amendment states, “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.” This language is far from clear, so it is understandable how, based on the text alone, one could argue either that the amendment protects a States’-right or an individual-right.

There is general agreement among all that the first, prefatory clause (“A well regulated Militia, being necessary to the security of a free State,”) declares the amendment’s civic purpose - insuring the continuance of the militia system; but there is major disagreement on whether that purpose was exclusive of the second, operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). Supporters of the individual-right interpretation argue the prefatory clause is not exclusive – i.e., that it merely announces the desirability of a well-regulated militia and informs the meaning of the ambiguous term “Arms” within the more broadly-stated operative clause that follows. They argue the more natural reading of the operative clause is to guarantee to the people an individual right to keep and bear arms free of government infringement.

In contrast, supporters of the States’-right approach argue, in the words of the lower court, “that the prefatory clause declares the amendment’s only purpose – to shield the state militias from federal encroachment – and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right.”

There is further disagreement on the meaning of the amendment’s individual words and phrases, such as “the people.” Individual-right supporters note that the phrase is also found in the First, Second, Fourth, Ninth, and Tenth Amendments, all of which protect an individual right against government infringement. It follows, they argue, that the most natural reading of “people” in the Second Amendment would be to apply the word in terms consistent with its usage elsewhere in the Bill of Rights. In contrast, proponents of the States’ right theory read “’the people’ to mean some subset of individuals such as ‘the organized militia’ or ‘the people who are engaged in militia service,’ or perhaps not any individuals at all - e.g., ‘the States.’”

The Court will also consider the meaning of “to keep and bear arms.” While supporters of the collective-right theory will point to convincing evidence that the phrase was commonly used in the founding era to mean “soldiering,” individual-rights theorists will cite equally convincing evidence from contemporaneous state constitutional provisions suggesting the phrase was also understood to include the carrying of arms for self-defense and other private purposes.

Likewise, “a well regulated Militia” is subject to dramatically varying meanings under the different viewpoints, and the Court will hear detailed and convincing arguments both ways. While the individual rights position argues that the word “Militia” is synonymous with “the people,” States’-right advocates offer a much more limited definition in which the Militia was a group of adult men well-regulated and organized by the State as a civilian fighting force. As the lower court observes, “The crucial distinction between the parties' views then goes to the nature of the militia: [Individual-right proponents] claim no organization was required, whereas the [States’-right adherents] claim a militia did not exist unless it was subject to state [regulation,] discipline and leadership.”

Finally, the Court will consider the impact of U.S. v. Miller in 1939, the only case in the past century-plus in which the High Court has addressed a Second Amendment issue. While each side will lay claim to Miller as precedent for its respective position, in the end Miller is, in a word, inconclusive. If anything, Miller’s reasoning in holding that the word “Arms” in the Second Amendment does not include sawed-off shotguns would seem to favor the individual-right position.

In conclusion, regardless of how the Court decides in DC v. Heller, the case should be entertaining theater.

Supreme Court Second Amendment Case Commentary

The Second Amendment case scheduled for argument in the U.S. Supreme Court next Tuesday, March 18, DC v. Heller, is one of the most highly-anticipated Supreme Court cases in a good long while.

Simply, the U.S. Supreme Court has never addressed the question of whether the Second Amendment protects an individual right to keep and bear arms (it has not addressed a Second Amendment issue at all since 1939, and that case did not answer the individual right question).

In the coming weeks, from around the oral argument until the Court releases its decision a couple months later, I'll provide commentary on various aspects of the Second Amendment issue, such as more explanation why this case is such a big deal in constitutional terms; what the case will mean to people in their day-to-day lives - i.e., whether the government can prevent normal people from owning guns, or whether people will have a right that can't be taken away by the government; and what are the specific constitutional arguments being made in the case.

In Praise of Libertarian Originalism

Several weeks ago the American Constitution Society and Federalist Society at Michigan State University College of Law invited another professor, Lee Strang, and me to participate in a debate entitled “The Many Faces of Originalism.” Since we’re both like kids in a candy store when asked to talk about the Constitution, we jumped at the chance (well, I jumped at the chance - the debate was his idea).

Professor Strang argued for “Common Good Originalism”; I weighed-in for “Libertarian Originalism.” I think he got it about right when he estimated the two positions are in agreement about 70% of the time and disagreement about 30%. I describe here why I think the Libertarian Originalist interpretive approach to the Constitution is the better of the two.

We might first ask “Why Constitutionalism” at all? Why did We the People choose to solidify certain governmental arrangements and rights by placing them beyond the reach of ordinary politics? Why not a more “democratic” regime of the sort Thomas Jefferson suggested, where any constitution would be more legislative in nature in that it could be easily amended by each generation in order to ensure that the dead past would not constrain the living present?

James Madison, by contrast, favored a different sort of Constitution - the sort we ended up with - one that would provide firm and lasting constitutional constraints to ensure the conditions for the peaceful, long-term operation of democracy in a pluralistic society of many religions, races, ethnicities, and cultural backgrounds.

Originalists of all descriptions basically agree that at its core the Constitution is a kind of rulebook describing how the rules are played. It’s a “pre-commitment strategy” of sorts, designed to restrict lawmakers so they will not make up new rules along the way in order to further their own self-interest. The framers recognized human fallibility and the tendency of power to corrupt, and they intended to prevent lawmakers themselves from making the laws by which they make law.

As Thomas Paine explained in Rights of Man, “A Constitution is a thing antecedent to a Government, and a Government is only the creature of a Constitution…. [I]f experience should hereafter show that alterations, amendment, or additions are necessary, the Constitution will point out the mode by which such things shall be done, and not leave it to the discretionary power of the future Government…. A Government … cannot have the right of altering itself. If it had, it would be arbitrary. It might make itself what it pleased; and wherever such a right is set up, it shows there is no Constitution.”

And Madison, in Federalist 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Men – and women – are not angels, of course, so a Constitution IS necessary.

On this much originalists of all descriptions can agree. But there are some things on which we disagree. Specifically, we disagree upon the scope of rights and liberties protected in the Constitution.

The libertarian originalist understands that the Bill of Rights defines some, but certainly not all, of the rights and liberties to be protected by the Constitution. The Ninth Amendment explicitly and unequivocally makes the point: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This is given added effect when read together with the Tenth Amendment, which states, “The Powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people.” It is the people, in other words, who have the ultimate authority – not the government; and it is the people whose interests are to be protected – not the government’s. As Jefferson said, ““[K]ings are the servants and not the proprietors of the people.”

On this view, since government exists in the first place to preserve individual liberty, liberty presumptively trumps government power when the two come into opposition. While there is no question democratic government plays a vital role in determining policy for the community (people are not angels, after all), anytime it acts it must satisfy the burden of demonstrating its actions do not improperly limit liberty. As Paine says in Rights of Man, “Man did not enter into society to become worse than he was before, not to have fewer rights than he had before, but to have those rights better secured.”

The libertarian originalist looks at the constitutional text, structure, and history, and concludes that the single irreducible value eclipsing all else under the American constitutional regime is Liberty/Freedom. Historian Eric Foner explains, “No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than ‘freedom’ … or ‘liberty.’ The Declaration of Independence lists liberty among mankind’s inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings….”

Historian Bernard Bailyn reports that the most basic goals of the American Revolutionary Era were to “free the individual from the oppressive misuse of power, [and] from the tyranny of the state.” Thomas Paine captured this understanding of the superior natural relationship of the people to their government in two enormously influential pamphlets, Common Sense in 1776 and Rights of Man in 1791-94, stating, “Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one…; Government, like dress, is the badge of lost innocence….”

Or, to put it in more contemporary terms, imagine being able to use the constitutional equivalent of the “Google-Earth” feature of the popular internet search engine to zoom-in for detailed constitutional concepts and zoom-out for the more global concepts. If we were to zoom-out all the way to view the Constitution from the widest possible angle, where only the single most fundamental overriding principle of the document is legible, we would see the words “Liberty/Freedom.”

If courts were to adopt the libertarian originalist perspective in interpreting the Constitution, conservative and liberal judges would not need to argue about what rights and liberties existed or did not exist at the time of the framing – instead, the presumption is that a broad universe of rights and liberties do exist, and government may only limit them upon demonstration of very good reasons.

But what we have in modern America is an altogether different story. The original libertarian understanding of the Constitution is nowhere to be found in the conventional wisdom of either liberal or conservative (or anywhere in between) mainstream constitutional theory, both of which view rights and liberties like so many sugar cubes to be doled-out to a cooperative pony. As Professor Randy Barnett explains, “The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted Constitution [we have today, however,] creates islands of liberty rights in a sea of government powers.”

How this happened is a story for another day. (But if you’re interested, see Michael Anthony Lawrence, Government as Liberty’s Servant: The ‘Reasonable Time, Place & Manner’ Standard of Review for All Government Restrictions on Liberty Interests, 68 La. L. Rev. 1 (2007).)

For now my point is simply this. The most important, influential writings and commentaries of the American founding and reconstruction eras extol the virtues of freedom. By contrast, we do not find any serious argument in these writings for the sort of overly-powerful government that we have today in America. Nothing in the Constitution – not even an appropriate healthy respect for recognizing community interests as identified through the democratic process - mandates such an extreme level of judicial deference to government as currently exists. The judiciary’s current presumption-of-constitutionality review offers government too much temptation and leeway to act in ways that infringe Liberty/Freedom, which, as we have seen, constitutes the very core ideals upon which the nation was founded and the Constitution is designed to protect.

Stay Tuned for the Case of the Century: DC v. Heller

The Second Amendment case scheduled for argument in the U.S. Supreme Court on March 18, District of Columbia v. Heller, is one of the most highly-anticipated Supreme Court cases in many years - and with good reason, for in constitutional terms DC v. Heller is a once-in-a-lifetime (or even a once-in-several-lifetimes) case.

Think of it this way. Every year the Supreme Court decides important cases involving whether the government infringes a particular individual right that the Court has previously recognized as protected under the Constitution, whether it be the 1st amendment right to practice the religion of one’s choice, the 4th amendment right to be free of unreasonable governmental search and seizure, the 5th amendment right not to have property taken by the government without just compensation, the 8th amendment right not to be subjected to cruel and unusual punishment - and so on.

Much less frequently, maybe only once every few decades, the Court decides a case that fundamentally changes how we view a particular constitutional right. For example, in 1954 the Court decided Brown v. Board of Education, which reversed its earlier position, held since before the turn of the twentieth century, that “separate but equal” laws do not violate the 14th amendment’s guarantee of equal treatment. After Brown, then, all so-called “Jim Crow” laws were unconstitutional. Some twenty years later in 1973, the Court decided Roe v. Wade, which found that the “liberty” protected in the 5th and 14th amendment due process clauses is broad enough to include certain “privacy” interests, such as the right of a woman to choose whether to have an abortion free of government prohibition. Roe opened the door to the Court’s acknowledgement of other liberty interests protected under the 5th and 14th amendments, including the right of individual personal autonomy to engage in private consensual sexual conduct free of government interference in the landmark 2003 case Lawrence v. Texas.

While Brown, Roe, and Lawrence are all hugely important in defining the scope of the freedom enjoyed by Americans, even they “only” involved the interpretation of previously-acknowledged constitutional rights – i.e., the right of “equal protection” in Brown, and the right of “liberty” in Roe and Lawrence. DC v. Heller, by contrast, involves a right that most courts throughout American history have held does not even exist. Under this prevailing view, courts have held there is no individual right to keep and bear arms; rather, the Second Amendment protects the right of persons to keep and bear arms only insofar as the State authorizes them to do so in the interest of maintaining a militia.

There just are not many constitutional provisions like the Second Amendment (the Ninth Amendment and the Fourteenth Amendment privileges or immunities clause being other notable examples), where the very existence of a right suggested in the text of the Constitution goes unacknowledged by the Supreme Court. Accordingly, a case like DC v. Heller comes along extremely rarely – maybe only once every century or more.

What is it in particular about the Second Amendment that makes its meaning so uncertain? After all, the context of the amendment’s placement within a grouping of nine other amendments in a “Bill of Rights” designed to protect individual rights from government interference would seem to suggest that the Second Amendment likewise protects an individual right. The text itself, however, is no model of clarity. By stating, “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 amendment opens itself up to argument on whether it is intended to protect only a collective State right as opposed to an individual right. And as noted, virtually every federal and state court considering the question over the past century has adopted the former perspective - until now.

It remains to be seen how the Supreme Court will decide this question. At the least, its decision to review the DC Circuit Federal Court of Appeals’ conclusion that the Second Amendment protects an individual right will provide a fascinating rare look at history in the making. Whatever its outcome, DC v. Heller is destined to become one of a small handful of household-name Supreme Court cases in the Nation’s history.

More on Tolerance - Walter Isaacson's "Einstein"

More on the topic of tolerance, which I suggest is the core animating principle of the U.S. Constitution in my working book, "Toward a More Tolerant Constitution - Of, By, and For the People"....

From Walter Isaacson's much-lauded new biography on Albert Einstein (another on my holiday wish-list of books):

“[Einstein's] success came from questioning conventional wisdom and marveling at mysteries that struck others as mundane. This led him to embrace a morality and politics based on respect for free minds, free spirits, and free individuals. Tyranny repulsed him, and he saw tolerance not simply as a sweet virtue but as a necessary condition for a creative society. ‘It is important to foster individuality,’ he said, ‘for only the individual can produce new ideas.’…"

On Tolerance: Christopher Hitchens and "God is Not Great"

The title of a book I'm currently working on is (something like) "Toward a More Tolerant Constitution - Of, By, and For the People" basically arguing that governmental TOLERANCE of individual rights is a (if not the) core animating principle of the U.S. Constitution.

In a related context, Christopher Hitchens hits the nail on the head in his 2007 National Book Award finalist, "God is Not Great: How Religion Poisons Everything" (one of my holiday wish-list books):

"[T]he mildest criticism of religion is also the most radical and the most devastating one. Religion is man-made. Even the men who made it cannot agree on what their prophets or redeemers or gurus actually said or did. Still less can they hope to tell us the 'meaning' of later discoveries and developments which were, when they began, either obstructed by their religions or denounced by them.

And yet - the believers still claim to know! Not just to know, but to know everything. Not just to know that god exists, and that he created and supervised the whole enterprise, but also to know what 'he' demands of us - from our diet to our observances to our sexual morality. In other words, in a vast and complicated discussion where we know more and more about less and less, yet can still hope for some enlightenment as we proceed, one faction - itself composed of mutually warring factions - has the sheer arrogance to tell us that we already have all the essential information we need...."

"[F]aith ... is the beginning - but not the end - of all arguments about philosophy, science, history, and human nature. It is also the beginning - but by no means the end - of all disputes about the good life and the just city. Religious faith is, precisely because we are still-evolving creatures, ineradicable. It will never die out, or at least not until we get over our fear of death, and of the dark, and of the unknown, and of each other.

"For this reason, I would not prohibit [religious faith] even if I could. Very generous of me, you may say. But will the religious grant me the same indulgence? I ask because there is a real and serious difference between me and my religious friends, and the real and serious friends are sufficiently honest to admit it. I would be quite content to go to their children's bar mitsvahs, to marvel at their Gothic cathedrals, to 'respect' their belief that the Koran was dictated, though exclusively in Arabic, to an illiterate merchant, or to interest myself in Wicca and Hindu and Jain consolations.

"And as it happens, I will continue to do this without insisting on the polite reciprocal condition - which is that they in turn leave me alone. But this, religion is ultimately incapable of doing. As I write these words, and as you read them, people of faith are in their different ways planning your and my destruction, and the destruction of all the hard-won human attainments.... Religion poisons everything."

How, then, does this passage from Hitchens' new book relate to my own book project? It relates in that the U.S. Constitution was specifically designed as nothing more than a device to prevent others, who claim to know everything under the guise of governmental authority, from destroying all "the hard-won human attainments," whether they be matters of religious freedom of the sort Hitchens speaks, or, more broadly, other precious individual liberties. As Justice Brandeis said in 1928, “The makers of our Constitution … conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men.”

In other words, so long as my beliefs and actions cause no direct harm to others, the Constitution requires the government to "respect" - i.e., to tolerate - those beliefs and actions; in short, any law, regulation, or other government action that fails to so tolerate me and my beliefs and actions is unconstitutional.

The religious focus of Hitchens' book is relevant as well in light of the increasingly dominant - and inappropriate - role religion has come to play in American politics. For evidence, we need only look so far as the disastrous courses on which our evangelical president has steered the nation largely on the basis of his own religious dead-reckoning; and sadly, if the groveling comments toward the religious right of most of the current presidential candidates are any indication, it appears the situation is not soon to change. If this is so, it will be all the more incumbent upon ordinary Americans to speak out loudly and forcefully in protection of the hard-won constitutional liberties.

Post-Bush America

One of the lasting effects of the George W. Bush presidency is that U.S. credibility is so damaged around the world that it will be difficult for his successor to shape events ranging from addressing global warming, to economic integration, to middle-east politics, and so on and so on.

Perhaps most worrisome is that democracy itself, as a viable political system for the greater good, is damaged by U.S. behavior under Bush's leadership. Why democracy, one might ask, in view of the messes the U.S. is making in Iraq, global warming, Guantanamo Bay, etc., etc.? As Roger Cohen suggests in today's New York Times, "Liberal democracy has taken a battering. A countermodel now exists: the authoritarian-capitalist, or Leninist-capitalist, systems of China and Russia. They have benefited from Iraq's democracy-as-mayhem."

Democracy is the best system yet devised for protecting the Enlightenment-based values of Reason and Individual Liberty. With the bungling of Bush and the Gang that Couldn't Shoot Straight, the next president will have a tall task in restoring faith around the world in the American version of democracy epitomized in the values of pluralism, rule of law, independent media, market economies, tolerance, and basic human decency.

Second Amendment - New York Times Letter

The folks on the New York Times Editorial Board usually get it right, but they missed one last week in their criticism of the decision from the Federal Court of Appeals for the DC Circuit finding that the Second Amendment protects an individual right. As I said in a previous blog posting, and again in a letter to the New York Times published yesterday:

"To the Editor:
Much of the recent serious legal scholarship from both right- and left-leaning commentators, including Laurence H. Tribe, now concludes that the Second Amendment was intended to protect an individual right.

Instead of angst, the decision by the United States Court of Appeals for the District of Columbia Circuit should be cause for celebration for all who treasure freedom, even those deeply concerned about gun violence.

Nothing prevents the strict regulation of firearms; other individual rights are properly subject to government regulation (though never prohibition), such as the First Amendment freedom of speech.

A faithful reading of the Constitution does not allow us to pick and choose from among rights we like or dislike, and we bolster our claim on other enumerated and unenumerated rights (for example, the right to privacy) when we adopt an expansive view of liberty.

Michael Anthony Lawrence
East Lansing, Mich., March 14, 2007
The writer is a professor at Michigan State University College of Law."

FBI & Patriot Act

Exhibit "A" for why we need a robust reading of the Constitution's protection of individual rights to protect us from government: the reports last Friday about the FBI improperly using the USA Patriot Act to obtain information about people and businesses.

Turns out that the FBI mismanaged and in some cases illegally used the Patriot Act's "national security letter" process allowing the government to obtain records from Internet service providers, banks, credit companies and other businesses without a judge's approval.

Even if the mistakes were the honest result of human error, as the FBI insists (dubious, with the failed Attorney General Alberto Gonzales at the helm of the Justice Department, to which the FBI reports), this incident points out the hazards of a law allowing the government the power to act outside the bounds of judicial supervision, and offers all the more reason why we must scrupulously defend freedom from being nibbled away by legislation such as the Patriot Act.

By: Michael Anthony Lawrence

Second Amendment Decision

Yesterday’s decision by the DC Circuit Court of Appeals interpreting the Second Amendment as protecting an individual right to bear arms is cause for celebration for all freedom-loving Americans, even those deeply concerned about gun violence in the United States.

First, nothing in the court’s interpretation prevents government from imposing meaningful regulations on the possession of firearms. Others of our most fundamental rights are properly subject to government regulation (though never outright prohibition), such as the First Amendment’s protection for freedom of speech, which is subject to “reasonable time, place, and manner” governmental restrictions.

Second, we bolster our claim on all of the rest of our constitutionally-protected rights – both enumerated and unenumerated (the right to privacy, for example) – when we adopt the sort of expansive view of liberty recognized in yesterday’s decision. A faithful reading of the Constitution simply does not allow us to pick and choose from among those constitutional rights with which we may agree or disagree; and the fact is that the great weight of serious historical research by many scholars over the past couple decades demonstrates that the Second Amendment (click here to see my forthcoming article in the Missouri Law Review discussing much of this research) was intended to protect an individual right to keep and bear arms – like it or not.

If the individual right to keep and bear arms no longer meets with our vision of what we wish America to be, the only acceptable way to remove the right is to amend the Constitution, not through sleight-of-hand by continued adherence to a discredited interpretation of the Second Amendment.

By: Michael Anthony Lawrence

Progressive Liberty (#2) - Charles Fried

To get a sense of the relationship of individual liberty and government within the concept of progressive liberty, I recommend a book I've just picked up, Charles Fried’s 2007 book, “Modern Liberty: And the Limits of Government.” Fried explains:

“It is generally thought that we must have the state [i.e., government] for enforcement, legislation, and adjudication, and ... [therefore rights must be merely] creatures of the state. But it is entirely plausible to argue that we have the rights whether or not they are enforced, embodied in codes, or officially adjudicated…. Our rights in their broad outlines are the entailments of what we are: free and reasoning persons, capable of a conception of what is good and right…." Liberty, in other words, is pre-political, and nothing any government attempts to do may legitimately deny it to the people to whom it rightfully belongs. It was the purpose of the Declaration of Independence to claim these pre-political rights from the Crown, and of the Constitution to guarantee these rights.

Fried continues, "It is because our rights flow from who and what we are that we may form, re-form, or accept government in order to make our rights more certain and secure. So those who say that our rights depend on or are the creatures of states have it the wrong way around."

In this regard, Fried echoes the following statement from the Declaration of Independence: "Whenever any form of government becomes destructive of these ends [of securing to all the unalienable rights of life, liberty and pursuit of happiness], it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness."

Finally, regarding the nature of government, Fried says, “The state is nothing but a web of relations between individuals as individuals, whose choices are coordinated according to what they understand is possible for them and what they may or may not do.... [That is,] if states are the greatest violators of liberty, they are also its greatest enablers and protectors. In any advanced condition of civilization there can be no effective degree of liberty without the state, because there can be no effective degree of liberty without law.”

On this last point, James Madison put it well in Federalist No. 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Properly constituted with a limited mandate, as in the U.S. Constitution, government can be a force of progressive good while protecting and enforcing individual liberty.

By: Michael Anthony Lawrence

Old (Mar.23,2005): Congress Out of Bounds on Schiavo Case

(This OpEd was written on March 23, 2005.)

To the editors:

There’s no getting around it - the United States Congress is out of control. Its current intervention in the Terri Schiavo case is only the latest example of how uncomprehending Congress is of the proper role of the legislative branch in our constitutional design; and of the proper role of government in general vis-à-vis the private individual.

Congress’s intervention is highly inappropriate. First, Florida state courts have determined repeatedly under the evidentiary standard enacted into law by the Florida state legislature (clear and convincing evidence) that Terri Schiavo would wish not to be maintained in a persistent vegetative state; second, the U.S. Supreme Court has recognized the fundamental right of individuals to avoid unwanted medical treatment. Congress, by interfering with what the courts and legislature of the sovereign state of Florida have determined in their efforts to respect an individual’s fundamental constitutional right, deeply offends the constitutionally-mandated balance of federal-state relations and separation of powers among the branches of the federal government.

More generally, Terri Schiavo has a natural right to determine how to live her life. It is not up to her husband, it is not up to her parents, and it is not up to the United States Congress - it is up to her, and to her alone. She decided she would not want to be artificially maintained in a persistent vegetative state, and her wish should be respected.

The sort of position being taken by Congress and the President in this and other cases would have been unthinkable through much of the nation’s history. The most basic concept among the founding generations for what this new nation of “America” was to stand for was the lofty principle that government of any sort simply lacks the authority – legal, moral, or otherwise - to interfere with individual liberty. The preeminence of this concept was recognized by Justice Louis Brandeis when he stated famously in 1928, “The makers of our Constitution … conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men.”

In words that might have been penned directly in response to the actions of Congress and the President in this very instance, Justice Brandeis also cautioned, “Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent…. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

We’ve come a long way in America since the founding, but unfortunately we’ve come in precisely the wrong direction on matters of individual liberty. One colleague puts it this way: “Instead of a land of individual liberty and … tolerance, America has become a land of public morality and intolerance, all without the benefit of constitutional amendment…. [and w]hile there is nothing wrong with having an opinion based upon one’s culture or religion, there is something wrong with imposing this opinion upon others in a pluralistic society founded upon individual liberty.” [Elizabeth Price Foley, Liberty for All: Privacy Versus Morality in the American Constitution (forthcoming, Yale Press)]

Congress’s actions in the Terri Schiavo case demonstrate yet again its utter lack of understanding of the core principle that government acts legitimately only insofar as it protects the individual’s “right to be let alone” as it does so. As a reminder to Congress, the President and other government officials of this axiom, Justice Brandeis’ “right to be let alone” opinion should be framed and placed in every federal and state building in the land - perhaps in place of the Ten Commandments.