Behind Raging Battles over Guns and a Court Nominee: Constitutional Illiteracy

March 27, 2016

Robert Ludwig offers more legal and historical insights in response to the latest threatened shutdown, this time of the Supreme Court by Judiciary Committee Republicans who vowed not to hold hearings this year on any nominee to succeed Justice Antonin Scalia. Sen. Ted Cruz, a committee member running for the presidency, argued “we’re one justice away from the Second Amendment being written out,” referring to a right to guns newly found in District of Columbia v. Heller, 554 U.S. 570 (2008). Sen. Cruz also vowed in an op-ed to filibuster any vote to protect this “long-cherished” right (of eight years), which “even nonlawyers can’t miss,” unlike those “invented” by liberal courts “that are nowhere in the Constitution.” Not mentioned is Heller’s “judicial activism,” criticized by conservative Judge Harvie Wilkinson on the appeals court where Cruz once clerked, “creat[ing] a new blockbuster right “not apparent to the court for over two centuries,” much less nonlawyers.

In another timely article, “Court Nominee, Guns, and Constitutional Illiteracy ” (Law360 Mar. 15, 2016), Mr. Ludwig points out that, overlooked in the GOP pledge, filibuster threat, and raging court and political battles over gun rights and control, “are the amendment itself, and rudimentary constitutional terms of art.”

“For past generations, there was no ‘long-cherished’ right to ‘write out.’” On the bicentennial of the amendment, former Chief Justice Warren Burger, who knew the difference between his common law right to the shotgun he cherished and the Second Amendment, called a right to guns a “fraud.” Judge Robert Bork agreed, no small irony after Democrats savaged his nomination: “it really is people’s right to bear arms in a militia.” And the justice Bork would have succeeded, Lewis Powell of the Burger court that unanimously reaffirmed there was no right to guns, questioned why the amendment “should be viewed as creating a right to own and carry a weapon that contributes so directly to the shocking number” of gun deaths.

Remarkably, Heller, a sharply divided 5-4 decision overturning D.C.’s handgun ban and two centuries of law and legislative practice, did not address, let alone decide, the full amendment as assumed. Nor did Heller consider, in roiling settled law if not domestic tranquility, the whole constitutional and founding record, which is more extensive and clear than believed.

“One would think,” the article notes, “in construing the right ‘to keep and bear Arms’ which ‘shall not be infringed,’ Heller determined the meaning of ‘infringed.’ Yet nowhere did the court even address it, transposing instead ‘infringed’ to ‘abridged’ (‘abridge the ancient right of individuals to keep and bear arms’).”

“Infringed” and “abridged” are different words, have different meanings, and are not even synonyms. Where words “cannot, in any appropriate sense, be said to be synonimous,” Justice Joseph Story once warned, to “suppose them to signify the same thing,” as Heller did, “would be to defeat the obvious purposes of both.”

“‘Abridge,’ the article points out, “is the little-known term of art Congress invoked” in the First Amendment and “all amendments thereafter for individual rights: the Fourteenth, Fifteenth, Nineteenth, Twenty-fourth, Twenty-sixth, and proposed Equal Rights Amendments (apart from juridical rights in the Fourth through Eighth).”

“‘Infringed,’ used in an amendment associated with federalism, is the constitutional term for protecting sovereignty, which individuals did not possess, unlike states that did.” For example, “nothing is more American than the cries for self-representation during the decade of encroachments by Parliament on the sovereignty of colonial legislatures, which led to the Revolution. Similarly distinctive is the term used to protest them.” Construing “the people” with the sovereign usage of “infringed” permits only a collective, not individual meaning, and constitutional right.

Heller, mistaken on many levels, never reached the question presented: whether D.C.’s ban “infringed” any Second Amendment right, and may have no authoritative effect.

“Why have these terms of art been so long overlooked?” Mr. Ludwig asks. In the case of “‘infringed,’ the nonlawyers’ expression ‘you had me at’ is an apt explanation. For two centuries the amendment’s unique preamble was enough: declaring the necessity of a ‘well regulated Militia,’ it clarified any ambiguity in the clauses that followed,” and canons of construction mandated that result.

Still, “for lawyers to advocate a constitutional position, in this case the Second Amendment, without addressing the constitutional wording, borders on malpractice.” Meanwhile, as “lawyers slumber or lead another misguided insurgency against constitutional government, the republic bleeds.”

The article concludes: “There is no Second Amendment to ‘write out,’ but to actually read and understand, including text even lawyers can’t miss.”