To Judges Silberman and Griffith: The Law is an Ass

To: Judges Silberman and Griffith

From: Dan Badger

Subject: Shelley Parker et al v. District of Columbia

I have read your decision in Shelley Parker et al v. District of Columbia, and I am appalled. The jurisprudence you present in this opinion does not pass the laugh test. The acrobatics to which you resort in struggling to justify your position on the politically-charged issue of the right to bear arms are beyond belief. I have therefore awarded this opinion a failing grade of "E" (for entrepreneur). Here's why.

The case presents the court with a simple question: whether the twenty-seven words of the Second Amendment ("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.") protect only a collective right -- for people to keep and bear arms for purposes of membership in a state militia -- or also an individual right -- for people to keep and bear arms to shoot rabbits.

Rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you inform us that since you can conceive of slightly clearer language in which the framers might have said that the Second Amendment right is a only collective right, they must have meant that it is not.

Rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you decide to lift individual words (e.g. "the people," or "bear arms") from the sentence, find other sentences in common usage in the late 18th and early 19th century in which they had different meanings, and conclude (QED!) that these words must have those different meanings in the Second Amendment.

Rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you decided to scour the historical landscape for "pre-existing" ideas which, you tell us, must inform the meaning of these twenty-seven words.

Rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you tell us that the first thirteen were inserted by the framers merely as a "for instance," and therefore may safely be ignored so that you can get on with your determination to find an individual right somewhere among the twenty-seven.

Rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you tell us that since 18 of the other 19 amendments comprising the Bill of Rights confer individual rights, the Second Amendment must, too, even though a plain reading of the twenty-seven words tells us otherwise.

Finally, rather than decide the case on a strict, narrow and collective reading of the twenty-seven words in front of your noses, you found it useful, in your entrepreneurial zeal, to wander on for paragraphs with such blather as "The Federalists who dominated the First Congress offered the Second Amendment's preamble to palliate Anti-federalist concerns about the continued existence of the popular militia." That this sort of American History 210 discourse, written by recently-graduated law clerks, card-carrying members of the Federalist Society, should be allowed to find its way into an opinion of the United States Court of Appeals on one of the must important public policy issues of our era is -- asinine.

Judges who in this way favour advocacy over jurisprudence and entrepreneurial jurisprudence over a strict, narrow and collective reading of the words in front of your noses are guilty of dereliction of duty. If this is not an impeachable offense, it shold be Shame, shame, shame on you judges Silberman and Griffith.

Enough ad hominem. Now for ad rem.

Page 14, first full paragraph: the court finds it passing strange that the framers, if they had meant to confer only a collective right, would not have said so in a sentence whose syntax was more explicit, such as "Congress shall make no law disarming state militias." The court returns to this line of argument in the second paragraph on page 36: "If the competent drafters of the 2nd amendment had meant the right to be limited to the protection of state militias, it is hard to imagine they would have chosen the language they did." Here is the reasoning: although the syntax of the sentence makes it reasonably clear that the right expressed is qualified by reference to militias, since different syntax could have made this clearer, this cannot have been what the framers had in mind. I have a theory as to why the court's imagination cannot grasp why the framers used prefatory-operative syntax to state what is reasonably obvious to readers even after 200 years, but this is a political theory, and has no place in an analysis of the court's jurisprudence in this case.

Nor is it very difficult to turn the court's argument on its head. If the competent drafters of the 2nd amendment had not meant the right to be limited to the protection of state militias, it is hard to imagine they would have chosen to include the prefatory clause. What conceivable motive would have led them to include a prefatory clause whose meaning was irrelevant to the operative clause? The best that the Parker court can do in answering this question is to tell us that "it was quite common for prefatory language to state a principle of good government that was narrower than the operative language that was used to achieve it." (page 36, first paragraph). If true, this merely illustrates the folly of arguments based on the notion that "if that is what they meant, they would have said something different from what they did say."

Page 14, second paragraph: the court finds that the assertion that the 2nd amendment confers only a collective right is an assertion of "militant federalism." Wow! This is militancy redefined. To me and the District of Columbia it simply means that the framers didn't want the Feds to think they could disband state militias.

Page 14, last sentence of second paragraph: the court finds that scholars who seek to occupy a middle ground between the individual and collective right models to be "entrepreneurial." Does not the court find itself to be entrepreneurial in divining that, since the framers could have adopted more straightforward syntax in asserting a collective right, they could not have been asserting a collective right?

Page 18, third paragraph: the court finds that the most important word in determining whether the 2nd amendment right is an individual one is the word "people." Wait a minute! In determining whether the 2nd amendment sentence confers an individual right, the collective meaning of all twenty-seven words is far more important than the most important single one of the twenty-seven words. Why would the court focus on the meaning of the single most important word rather than the entirety of the sentence? Something is up.

Sure enough. Here's what is up. The court looks for its "single most important word" in other provisions of the constitution, provisions where the qualifying prefatory clause of the 2nd amendment is absent. Since in those other provisions "people" pretty clearly means individuals, it must refer also unqualifiedly to individuals in the 2nd amendment, notwithstanding the prefatory clause! Voila!

In deciding whether the 2nd amendment confers an individual right or only a collective right, anyone who is not an ass would rearrange the syntax of the 2nd amendment sentence so that it read as follows "Because a well-regulated Militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed." Then, any court that is not an ass would decide that if a state decides to prohibit an individual from bearing arms where such prohibition is neither necessary to nor impinges on the state's ability to maintain a well-regulated militia, the state has every right to do so.

Page 20, first paragraph: the court finds that the cited Supreme Court language makes it unlikely that the Supreme Court views the 2nd amendment right as only collective. Why? The Supreme Court language refers to classes of persons who are part of or can be considered to be part of a national community. By what reasoning does the Court of Appeals find that this Supreme Court language belies the view that the 2nd amendment right is not collective?

Page 20, second paragraph, first two words ("In sum"): If that's the sum, then this court is pathetic, and (QED) the law is an ass.

Page 20, last paragraph: the court finds that, since an individual right to bear arms existed before the Constitution was written, and since the Constitution says the "the right to bear arms shall not be infringed," the Constitution must be protecting the pre-constitutional individual right. But why, if that is what the framers intended, did they qualify the operative clause by the prefatory clause? Or looking at this from another perspective, why should the court be so entrepreneurial as to decide that the framers gave a hoot about the struggle with the Stuart Monarchs in late 17th century England? If the framers did, why didn't they say so when they wrote the 2nd amendment? If they didn't, why does the court think it can base its decision on such enterpreneurial reasoning as this: "to determine what interests this pre-existing right protected, we look to the law, private purposes for which people of the time owned and used arms."

This is strict-construction jurisprudence taken to the power of minus 2. Not only does this court refuse to speculate on what the framers might have intended if they knew what we know today, this court tells us to disregard the plain meaning of what the framers wrote when they wrote it, including the explicit prefatory qualifier relating to militias, and instead to divine the meaning of the 2nd amendment sentence by reference to ideas that were floating about in the 18th century juridisphere before the 2nd amendment was drafted.

Page 23, second paragraph: the court finds that, notwithstanding the prefatory clause, the meaning of the 2nd amendment can only be divined by looking at the Bill of Rights as a whole. No reason is given for ignoring the particular in favour of the general. This paragraph then makes the following remarkable statement: "The collective right advocates ask us to imagine that the First Congress situated a sui generis states' right among a catalogue of cherished individual liberties without comment." Without comment? What about the prefatory clause? Is this not a "comment" of the most profound significance? In this same paragraph, the court declares that "we should read any supposed ambiguities in the Second Amendment in light of its context," and the court's favoured "context" for this is "every other provision of the Bill of Rights, excepting the Tenth."

The court's entrepreneurial reasoning here degrades the intellect of the founders. The court treats the Bill of Rights as a "catalogue" into which the founders tossed a collection of concerns about protecting individuals and states against the feds. The court reasons that since 18 of the other 19 entries in the catalogue deal with individual rights, this catalogue entry must also, even though the framers chose to include in it a clause stating plainly their concern to protect a right of "the people" as members of a collective. The court finds that we should disregard what the plain meaning of framers words as written in this amendment, and assume they couldn't have meant anything different here than what they meant in 18 of the other 19.

Page 24, second and third paragraphs: the court finds it wrong to interpret the phrase "bear arms" as an exclusively military construction, because "it would hardly have been unusual for a writer at the time (or now) to have said that, after an attack on a house by thieves, the men set out to find them "bearing arms." OK. So what? At the risk of sounding like a broken record, has the court not noticed that the 2nd amendment reference to a right to "bear arms" includes a prefatory clause referring to the raising of a militia? Is it not entrepreneurial for the court to decide that because it was not unusual in the late 18th and early 19th centuries for the phrase "to bear arms" to be used in connection with individuals, or because the dissenting delegates at the Pennsylvania ratification convention declared the the people have the right to bear arms for the purpose of killing game, the framers must have had an individual right in mind in drafting the 2nd amendment, notwithstanding the prefatory clause?

Page 21, last paragraph: the court finds that an individual right to bear arms existed prior to the writing of the 2nd Amendment, and the 2nd Amendment must therefore preserve this pre-existing right. The fact that the 2nd amendment says nothing about preservation of a pre-existing right doesn't stop this court from feeling free to interpret the twenty-seven words according to its own lights. The court finds that what the amendment "really" means is, "The states shall not infringe on the pre-existing right of individuals to keep and bear arms."

Page 27, first paragraph: this is a truly alarming paragraph. The court finds that, because three sitting members of the Supreme Court have understood "bear arms" as used in the 2nd amendment to have a meaning beyond soldiering, the operative clause of the 2nd amendment has a private meaning. This court does not inspect the reasoning of the three sitting justices in the other cases. This court finds it enough to note the opinions of these justices in those other cases, and cites the fact of their findings rather than any reasoning therein as a reason for deciding the case before it.

Page 27, second paragraph: the court finds it risible that the meaning of the word "keep" should not be analysed separately from the words "and bear arms" to which it is connected in the 2nd amendment because the plaintiff in the case elsewhere argues that "every word must have its due force and appropriate meaning."

First, the court should not evaluate the risibility of an argument on the basis of its consistency with other arguments made by the same party. The court should only find an argument to be risible if it is. The fact that one argument is inconsistent with another doesn't make it risible. It makes it inconsistent.

More to the point, the plaintiff has merely said that every word should have its due force and appropriate meaning. The plaintiff has not said that the due force and appropriate meaning of every word should be evaluated without reference to the context of the sentence in which is uses. It is only this court that believes that each word of the 2nd amendment should be accorded "an independent significance," without stating why. But I have my suspicions.

Page 33, first paragraph; the court finds that the current congressional definition of the "Militia" accords with the definition embodied in the Second Militia Act of 1792. This is hard to credit. The current congressional definition, according to the Court, is all able-bodied male citizens between the age of 17 and 45 even if they are not members of the Nation Guard or Naval Militia. In other words, private citizens. The Second Militia Act definition, as reported by the court, refers explicitly to enrollment by the captain or commanding officer of a company, who shall notify the citizen that he has been enrolled. Remarkably, the court goes on to find that "there was no organizational condition precedent to the existence of the 'Militia' as defined in the Second Militia act," and that the Second Militia act definition of "militia" refers only to "raw material." The court does not explain why it finds that there could have been enrollment by captains or commanding officers who notify citizens of their enrollment without some sort of organization, or why it finds that the "Militia" under the 2nd amendment is therefore includes the entire "raw material" of "a large segment of the population." Here the court finds by fiat. And entrepreneurial fiat at that. No reasoning whatsoever is presented to support this finding, on which the rest of the court's reasoning then rests. And what are we to make of the court's statement in the following paragraph that "we quite agree that the militia was a collective body designed to act in concert." While this statement is not risible, it is certainly inconsistent.

Page 35, second paragraph: the court finds that "the popular nature of the militia is consistent with an individual right to keep and bear arms." So what? The question is not whether the popular nature of the militia in the late 18th century was consistent with the right to bear arms. The question is whether the framers meant to protect an individual right to bear arms where this was not associated with the formation of the militia. Does the court believe that the defendant in this case has the burden to prove that an individual right to keep and bear arms is inconsistent with the popular nature of the militia in the late 18th century? Please explain.

This paragraph concludes with another remarkable sentence: "Preserving an individual right was the best way to ensure that the militia could serve when called." On the face of it, this is false. The best way to ensure that the militia could serve when called was to enroll the men between the age of 17 and 45 and require them to have arms ready to hand for use in an organized militia to fight an organized enemy. This is the right that the 2nd amendment protected. On the face of it, this has nothing to do with preserving an individual right to keep weapons to defend himself in his home against an intruder or to kill rabbits. Entrepreneurial legal theories about how the role that militias played in the late 18th century are today played by private citizens in their own homes have no place in the rulings of an intelligent court.

Page 35, last paragraph, last sentence: "It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it. We think the 2nd amendment was similarly structured." Here the court proclaims openly its entrepreneurial approach to deciding this case. The prefatory clause is not to be read as restricting the ambit of the operative clause. It merely opens the door to broader interpretations. All broader interpretations are allowed, including the individual-right interpretation. The prefatory clause merely states explicitly one interpretation (the collective right) among many that the framers may have had in mind. Go for it!

And by the way, was it not equally or more common for prefatory language to state a principle that was not intended to be narrower than the operative principle that followed, but rather intended to limit the applicability of the operative principle to the purposes declared in the prefatory principle? It is nice to hear that the court thinks the 2nd amendment is not such a case, but it would have been good to hear why.

Page 36, second paragraph: the court finds that if the framers had only meant to protect a collective right, they would have written, "Because a well-regulated Militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed." Because this is not what they meant, because they meant to protect an invididual right as well, they wrote something different. They wrote, ""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."

Page 38, first paragraph: the court finds in the absence of references to the operative clause in the recorded debates of the First Congress a "likely indication" that the framers had in mind in an individual guarantee. This of course can only be accomplished by sliding under the door of this opinion a burden of proof on defendants to show why the prefatory clause should not be ignored in interpreting the operative clause. Since the legislative history is silent, that history cannot help to meet this burden. Therefore the court can findd that the absence of legislative history supports its view that the prefatory clause can be ignored. If course, if the burden of proof lay with the court to show why the prefatory clause should be ignored, the absence of legislative history would be of no use to them. Such jurisprudential leger-demain is -- asinine.

Page 39, first paragraph: the court finds that, because the catologue of protected rights cited in Dred includes the operative clause of the 2nd amendment without mentioning the prefatory clause, the Dred case "expresses the view, albeit in passing, that the the Second Amendment contains a personal right." What wizardry! How can the omission of the prefatory clause "in passing" be construed as the expression of a view that it should be ignored in interpeting the amendment? The Dred case was not concerned with the meaning of the right expressed in the Second Amendment. It was merely catologuing "in passing" the Bill of Rights protections. This paragraph also deserves the grade of E (for entrepreneur).

Page 41, first paragraph: the court finds the Robinson "tends to cut against any version of the collective right argument" on the basis that "the individual nature of the permitted regulation [regulation prohibiting carrying concealed weapons] suggests that the underlying right, too, concerned personal ownership of firearms." Perhaps, or perhaps not. Perhaps the Robinson court recognized full well that the second Amendment protected no individual right, and was merely asserting as well the state's right to regulate the conduct of a militia member who wanted to carry concealed weapons. Either way, does this kind of speculation deserve to be given any weight whatsoever in an opinion analysing the meaning of the Second Amendment right?

Page 41, second paragraph and following: the court finds that Miller "implicitly" assumes the individual-right interpretation of the 2nd amendment. In the second paragraph on page 42, the court tells us that the Miller opinion "is most significant for what it omits." If your jurisprudential-entrepreneur-entering-the-room alarm detection system is not ringing loudly before you even finished reading this sentence, you need to get your alarm system checked. The government put forward a two-pronged case in Miller. The Supreme Court's decision was silent on the prong arguing that the right is not individual, basing its decision instead on the prong relating to the type of weapon in question. In the second paragraph on page 43, the Parker court tells us that if the Miller court had intended to endorse the first prong, it would have done so. And, since the Miller court is silent on the first prong, the Parker court finds the Miller court "implicitly" rejected the first prong!

Page 45, second paragraph: Parker court finds that, because the militia the framers had in mind consisted exclusively of private individuals, "attempting to draw a distinction between the use of Arms for private purposes and the use of Arms for militia purposes would have been an extremely silly exercise on the part of the First Congress..." Further, the court "does not see how one could believe that the First Congress, when crafting the Second Amendment, would have engaged in drawing such a foolish and impractical distinction...."

The logic in this reasoning is hard to find. Militias were comprised of private individuals. The framers wanted to protect the ability of individuals to bear arms so that they could participate in the militias. They wrote the Second Amendment saying so. The framers were not drawing distinctions, foolish or otherwise. They were simply saying that individuals had the right to bear arms because this was necessary for raising militias. They were utterly silent on the question as to whether individuals have right to bear arms for the purpose of shooting rabbits.