Friday, March 30, 2007

Brady Campaign “Aghast”

I’m on the Brady Campaign’s mailing list – I figure the best way to know what the other side is up to is to subscribe to their newsletter. So it came as no surprise when a response to the recent D.C. Gun Ban case (see entry from earlier this month) came across the wire. Honestly the response is pretty much exactly what I expected from the Brady Campaign, and it has a real tenor of desperation.

For today’s blog I figured I’d go through the letter from the Brady Campaign and point out the numerous errors they continue to perpetuate:

"I'm simply aghast!

"In a 2-1 decision in Parker v. District of Columbia, right-wing activist judges on a Federal Appeals Court recently overturned Washington D.C.'s long-standing restrictions on handguns based on their twisted view of the 2nd Amendment to the U.S. Constitution while ignoring more than 60 years of precedent — a decision that endangers America's gun laws coast-to-coast."

Oh my, talking about a loaded paragraph. Let’s examine the claims made by the Brady Campaign in this paragraph one by one to better understand where they’re coming from.

First the play the activist judge card. The term “activist judge” has come to many any judge who rules in a way you don’t agree with in modern political parlance. However, there is a historical precedent for judicial activism. Wikipedia has a fairly good definition of judicial activism:

"Judicial Activism is a term used by political scholars to describe a tendency by judges to consider outcomes, attitudinal preferences, and other public policy issues in interpreting applicable existing law. Formally, judicial activism is considered the opposite of judicial restraint, but it is also used pejoratively to denote judges who are perceived to endorse a particular agenda. Although alleged activism may occur in many ways, the most debated cases involve courts exercising judicial review to strike down statutes as unconstitutional. Views about constitutional interpretation abound, ranging from strict constructionism to the living constitution, and therefore, in practice, any controversial decision striking down a statute may be labeled by the decision's critics as judicial activism."

Granted, in the case in question a law was declared unconstitutional, but for me the question comes down to WHY the law was declared unconstitutional. If the law was declared unconstitutional because of a radical new interpretation of the Second Amendment, then I think you could make a case for “judicial activism”. If, however, the law was declared unconstitutional based on historical precedent or Founders intent, then this is NOT a case of “judicial activism”, but rather the Court performing its duty as a part of the system of checks and balances built into our government.

Since the question of whether this was an “activist” decision boils down to what model of Constitutional interpretation is used, we need to move a little further along the quote. Note that the Brady campaign talks about “60 years of precedent” in their message. Read that again – 60 years. Unless I’m mistaken, the Bill of Rights came out of a compromise between the Federalists and Anti-Federalists in 1789. The Second Amendment was debated heavily at that time. Why does the Brady Campaign not therefore discuss over 200 years of legal precedent???

The answer is simple – because they know that their interpretation is the "activist" one. It is based on nothing more than an ambiguous decision made about a specific shotgun which was tried 70 years ago in absentia. The Brady Campaign rails against the “individual right” interpretation of the Second Amendment. However even a cursory examination of the Constitutional debates, the letters and papers of the Founders, and early commentaries bears out the hypothesis that the Second Amendment was meant to affirm (not bestow!) an “individual right”, and perhaps the key individual right.

The main reason the Founders had a fairly unified view on personal firearm ownership as they saw an armed populace as the first and best line of defense against tyranny – such as the tyranny resulting from a central government with a standing army. Noah Webster wrote:

"Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States."

Blackstone noted in his commentaries:

"The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government."

Tucker’s commentaries on Blackstone reach the same conclusion:

"The bill of rights, 1 W. and M, says Mr. Blackstone, (Vol. 1 p. 143), secures to the subjects of England the right of having arms for their defence, suitable to their condition and degree. In the construction of these game laws it seems to be held, that no person who is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except the game-keeper of a lord or lady of a manor) is admitted to be qualified to kill game, unless he has 100l. per annum, &c. it follows that no others can keep a gun for their defence; so that the whole nation are completely disarmed, and left at the mercy of the government, under the pretext of preserving the breed of hares and partridges, for the exclusive use of the independent country gentlemen. In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty. "

The Founders have made their views on individual firearm ownership quite clear in other letters and documents as well:

Thomas Jefferson spoke at length on the right to bear arms:

"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed." --Thomas Jefferson to John Cartwright, 1824. ME 16:45

"One loves to possess arms, though they hope never to have occasion for them." --Thomas Jefferson to George Washington, 1796. ME 9:341

"I learn with great concern that [one] portion of our frontier so interesting, so important, and so exposed, should be so entirely unprovided with common fire-arms. I did not suppose any part of the United States so destitute of what is considered as among the first necessaries of a farm-house." --Thomas Jefferson to Jacob J. Brown, 1808. ME 11:432

"No freeman shall be debarred the use of arms (within his own lands or tenements)." --Thomas Jefferson: Draft Virginia Constitution (with his note added), 1776. Papers 1:353

"None but an armed nation can dispense with a standing army. To keep ours armed and disciplined is therefore at all times important." --Thomas Jefferson to -----, 1803. ME 10:365

Madison’s first draft of the Second Amendment was:

"The right of the people to keep and bear arms shall not be infringed; a well armed, and well-regulated militia being the best security to a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."

Note the individual right appears first in this draft – move “the right of the People” to later in the Amendment does not alter the individual right affirmed by the Amendment.

So I’m therefore forced to conclude that the Court’s interpretation of the Second Amendment in this case is neither “activist” nor is it “twisted”. It rather represents the prevailing view of the Amendment as held by it’s AUTHORS!

The Brady Campaign cites three goals for your continued contributions:

"Convene well-recognized experts in constitutional law and history to develop the most powerful arguments against the Parker ruling;

"Assemble a comprehensive library of books, treatises, articles, court decisions and legal briefs refuting the "individual rights" view of the Second Amendment and make this library available to lawyers nationwide and on the Internet; and

"Launch a major public education campaign including full-page ads in major newspapers and a new Brady Gun Law Defense Fund website. We'll also organize lawyers and law professors to write newspaper op-eds and letters to the editor to create a constant drumbeat of criticism of this decision."

Given the preponderance of information above, and the well annotated citations to rulings applicable to the case cited in the D.C. case decision, I find it hard to believe that the Brady Campaign will find any real refutation to the “individual rights” view of the Second Amendment – at least with respect to American law.

I’m sure they will find individuals eager to mis-interpret the Second Amendment in what ever way will pay the bills, but I ask you gentle reader, if “the people” in the Second Amendment to the Constitution doesn’t affirm an individual right, then what good is the Bill of Rights? What happens then to our freedom of religion? What happens to freedom of speech? What happens to freedom of the press?

The Brady Campaign has started down a very slippery slope – the end result of their journey, if successful, would be a complete gutting of the Bill of Rights. If you value your freedom, don’t be fooled by this latest PR campaign. Realize what is truly at stake.

Until next time.


E. David Quammen said...

Good going man! The way that we're going to win this is with the facts. And, by refuting and disproving all the lies of the enemy.

Fingolfen said...

Thanks! Just trying to do my bit! :D