Enemy of the Court

The various briefs on the Emerson case cover the gun issue rather well. The briefs supporting Emerson do so effectively, while also using the case to further political agendas. I have little to add that should be added. My agenda, however, is not the NRA's. My primary concern is with rule of law, not with the right to bear arms. Thus, another agenda comes forward.

The Unnecessary Bill of Rights

The Federalists originally did not believe a Bill of Rights was necessary. As the Congress was given nothing approximating the power to censor speech, why does the Constitution need an explicit Right of the People to speak freely? As neither the Congress nor any other branch of government was given a power to disarm the People, what was the need for the Right to Bear Arms? The Anti-Federalists during the ratification debates were not content with the implicit protection of a limited list of federal powers. They demanded and got the explicit protection of a Bill of Rights.

The Constitution has a more basic flaw the Anti-Federalists missed. The president nominates Supreme Court justices. The Congress approves them. This is a conflict of interest. If the Supreme Court is supposed to check the powers of the other branches, should the other branches have control over its membership? My Polyticks page has a section, Let's Play Constitutional Convention which explores fixing a very much broken federal government. US v. Emerson and Roe v. Wade reflect a deep and centuries old problem. Here, I'll make a few points.

Emerson's court appointed public defender included a commerce clause abuse appeal, as well as the Second and Fifth Amendment appeals. Congress passed a law regulating possession of guns by those undergoing a divorce proceding under its powers to regulate interstate commerce. I don't blame Judge Cummings for disregarding the commerce clause appeal. According to current established precedent, Congress may pass essentially whatever law it likes. The appeals court will very likely rule the same way. For most of the 20th Century, the Court's major role as a check on the power of federal government has been disregarded, has been ignored. A written Constitution becomes worthless unless the Courts uphold the law and the rest of the government respects the Courts. Once a Court habitually disregards the laws it is supposed to implement, life gets interesting for those on the Court.

If Emerson gets to the Supreme Court, they should look at the commerce cause appeal long and hard. If the founding fathers did not intend to allow the people to be disarmed, then disarming the people under the commerce clause would be a clear abuse of Congressional power. Whenever Congress passes a law based on the commerce clause that runs afoul of the Rights of the People, this ought to be treated as a Big Clue that Congress is abusing the commerce clause. A new test that would protect against repeated abuse should result. Emerson might get to the Supreme Court on basis of the Second Ammendment issues, but many other blatant abuses of the commerce clause are currently being upheld by the lower courts. They will continue to be upheld until the Supreme Court takes a stand.

Emerson is clearly not a case related to interstate commerce. The property in question was in private hands, not a manufacturer's, shipper's or retailer's. Emerson is not a professional gun dealer. The law under appeal is not designed to regulate the gun industry or gun retailers, but owners of private property. The law regulates no financial interactions in the least way related to commerce. Nothing relating to the statute involves interstate borders. The law in question is a police power, a criminal law, related to protecting the life and safety of private individuals undergoing divorce or otherwise under restraining orders. Police powers -- powers associated with protecting the rights and property from violence and theft -- were originally intended to be reserved to the states. This is well known, firmly established. Defense lawyers have been routinely inserting commerce clause objections in court cases for decades. The Courts have been ignoring these objections routinely.

The commerce clause objection ought really to be sustained. The Court ought to set up some reasonable test dividing commerce regulation from criminal law. The Emerson case is controversial enough on Second Amendment grounds that perhaps the commerce clause issue might be left for another day. On the other hand, this is as clear an abuse of the commerce clause as the Court is apt to see. As there are so many established precedents, cases centered primarily on the commerce clause would not tend to get up to the Supreme Court level. If precedent is respected, only the Supreme Court ought to reverse the prior rulings expanding Congressional authority.

This is a larger issue than just the Second Amendment. There is currently a large divide between the liberals and conservatives on the court. For the most part, the conservatives want strict interpretation while the liberals believe in loose interpretation. The divide between the two is getting large enough for the court to border on dysfunctional. The underlying cause is a habitual disregard for rule of law. Too many justices have political agendas, and step onto the court with intent to protect the People rather than protect the Constitution. The government has gotten into the habit, rather than altering the Constitution to fit the times, of altering the membership of the Supreme Court. In the process, the intent of the authors of the law often has no relationship to the case law produced by the courts.

As part of the Commerce Clause overturn of part of the Bradey Bill, Clarence Thomas noted that the Commerce Clause had been vastly overused, but that the Court could not instantly return to a strict interpretation of the Constitution. It would cripple the government. Thomas suggested a slow incremental return to rule of law.

Such an approach might be politically expedient, but Thomas and his brethren ought to be judges, not politicians. He too is valuing prudential concerns over rule of law. This the base problem. I can agree that in the modern age the federal government should have many of the powers Congress has usurped. However, if Congress takes these powers illegally, the Courts have to act in such a sloppy way as to become politicked.

The drastic solution would be for the Courts to strictly interpret the intent of the founding fathers, thus shutting down half the federal government. The response would almost have to be a constitutional convention. Is it likely to happen with US v.Emerson? I doubt it. Might we want to head in that direction eventually? Maybe. Maybe no.

Rights Protecting Rights

The other point to be made is that the old primary concern for protecting the Rights of the People has been lost. Lets look at the rights regarding rights, and a right from Emerson's home state of Texas.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
US Constitution, Ninth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
US Constitution, Tenth Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
US Constitution, Fourteenth Amendment, Section 1.

"Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."
Article 1, Section 23. Texas Constitution

Lets start with the Ninth. What rights might the people have that are not specifically enumerated in the Constitution? I could suggest three sources.

  1. Rights granted explicitly by State constitutions.
  2. English Common Law as of the time of the Constitution. The rights to privacy and a woman's right to reproductive freedom (Roe v Wade) are examples of common law rights.
  3. Natural Rights. Locke and other philosophers of the Revolutionary era contended some rights -- including self-defense -- are granted by God.

All three might apply to Emerson's defense, to the right to keep and bear arms.

Emerson has an individual right to bear arms granted by Texas. Even if one interprets the Second as granting only a collective right, does the Ninth block Congress from infringing rights explicitly granted in State Constitutions? Alabama field an Emerson brief essentially defending their own citizen's right to keep and bear arms. Does the Ninth block Congress from voiding a right established by the State of Texas?

Texas's state right to bear arms does not prohibit the Texas legislature from regulating the wearing of arms to prevent crime. However, this does not grant Congress the right to regulate the wearing of arms in Texas. Look at the wording of the Tenth. That a power has been given to the state by a state constitution does not imply the power is granted to Congress. Unless a power is specifically enumerated in the Constitution, the power is reserved to the state. (The federal claim to an enumerated power is via the commerce clause.)

English common law in colonial times established an individual right. The wording of the Second Amendment aside, there is an argument for an individual right to bear arms based on the Ninth. If the wording of the Second is interpreted only as protecting a collective right, this should not disparage the individual common law right.

According to Cruikshank, the right to bear arms is a natural right, granted by God and/or Locke. The court used this as an argument to say the right was established by God, not by the Constitution, and claimed the Fourteenth amendment only protects laws established by the Constitution. Therefore states could freely infringe all rights established by God.

The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national Government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.

This sophist argument essentially repealed the privileges and immunities clause of the Fourteenth. It is a poor sophist argument. The wording of the Fourteenth protects the privileges and immunities of US citizens without respect to the source of these privileges and immunities. The federal government became involved in handling racist incidents in the south only because the states failed to provide equal protection under law. The wording of the Fourteenth covers all rights -- state, federal, common law, natural and divine. If a privilege or immunity is binding upon Congress, it binds the states as well. The Fourteenth also promises equal protection, forbids the states from protecting the rights of some, but not others. Cruikshank, by emphasizing states rights and the lack of federal police powers, gave the KKK and similar white supremacist groups a green light. This was specifically what the Fourteenth was written to block.

However, Cruikshank is quite clear in identifying the right to bear arms as a natural right binding upon Congress. Cruikshank claims the Bill of Rights does not convey rights, but only limits the power of Congress. The Emerson appeal is against an act of Congress. Thus, the NRA brief saying Cruikshank is irrelevant is incorrect. It directly controls the case. However, in a few years both the NRA and myself will want to dump Cruikshank. It is bad case law, so I can't complain that the NRA is not giving it a place of honor in its Emerson brief.

If you doubt Cruikshank is obsolete by modern standards, note that police powers are being reserved to the states.

Their Own Enemy

Should the federal government have police powers? I believe the answer is yes, but both the powers and their limits should be put explicitly in the Constitution. With organizations like the FBI, BATF and Secret Service, clearly these powers have been claimed and exercised, whether legally or no. Those looking for smaller local government might argue to minimize federal power, but few would really want to totally dissolve the FBI. Even if the Congress were expressly stripped of all power to write criminal law -- which seems undesirable and unlikely -- the FBI should continue to exist as a coordinating agency helping state and local police organizations handle criminals operating across jurisdictions.

To limit federal police power, one first has to explicitly grant federal police power. One has to alter the Constitution. I would favor allowing and requiring federal intervention to protect federal rights, but only if a court finds a state is not adequately providing protection. The original intent after the Revolutionary war was to reserve police power to the states. The intent after the Civil War was for the federal government to protect the rights of the People should the states fail to do so. The intent after the Reconstruction was to allow state sponsored segregation, to systematically deny the rights of minorities. The intent in the modern era is for the Supreme Court to decide on a decade by decade and right by right basis, depending on political considerations and who has been appointed to the Court recently, what the Rights of the People are. The result is a dysfunctional court, and a very fluid legal situation.

No, I'm not happy. I don't believe the Court is happy either. Still, they are likely not yet unhappy enough to do something drastic, like preserve, protect and defend the Constitution of the United States. This would be too radical.

We are well beyond poor Emerson's legal problems. I quite agree that the above concerns should be left unsaid in the formal Emerson briefs. I shall restrain myself to daydreaming about the commerce clause being cut firmly down to size, and a need for a Constitutional Convention to give Congress the powers it needs in a modern age, but to withhold limits.

More concrete proposals on the larger issues may be found in Let's Play Constitutional Convention.

United States v. Emerson

The Decision
USA Today - Law News - NRA - SAF
Enemy of the Court