Working Hard to Deliberately Mislead

Robert J. Spitzer, Distinguished Service Professor of Political Science at SUNY Cortland, has authored an op-ed on the History News Network website. Entitled Working Hard to Misconstrue the Second Amendment, it's just one more example of the deliberate mendacity (that means "blatant lying," but in polite language) practiced by gun-ban-control activists. These people present themselves as "experts" that we're supposed to believe because they're experts. They provide citations we're supposed to take at face value supporting their positions, and not question whether they might be misleading us to further their own ends.

And most people would not question - or at least, they used to.

Then "fisking" came along.

Let us fisk.

In a startling case that may single-handedly revive interest in the Second Amendment's "right to bear arms," the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 Friday that a D.C. law barring residents from keeping handguns in their homes violated citizens' Second Amendment right to have guns, aside and apart from service in a militia. In carving out an "individual" right, the case of Parker v. District of Columbia proves that bad history makes for bad law.

Let's see: "carving out an 'individual' right" - scare quotes around "individual." And blaming "bad history" for the decision. Right. Moving on...

In its 58 page ruling, the two-member Parker majority contradicts nearly fifty other federal court rulings spanning seven decades, as well as four Supreme Court rulings, all of which support the straightforward proposition that the right to bear arms exists only in connection with citizen militia service.

Yes, there are seven decades of court rulings doing exactly what Spitzer says, but what amendment overturned the Second seventy years ago? I wasn't aware of of one. So, if you actually study the history, what would you find? Spitzer doesn't tell us.

For all of the dissembling by gun rights advocates, the amendment's full wording is pretty clear: "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."

Dissemble: "to give a false or misleading appearance to; conceal the truth or real nature of." Pot? Meet kettle - as I am about to demonstrate in spades.

As Supreme Court Chief Justice Warren Burger once noted, the amendment "must be read as though the word 'because' was the opening word."

And where did Chief Justice Berger say this? In an article he wrote for Parade magazine - that tabloid that gets put in your Sunday newspaper, four years after he retired from the bench. Here's the entire quote in context:

We see that the need for a state militia was the predicate of the "right" guaranteed; in short, it was declared "necessary" in order to have a state military force to protect the security of the state. That Second Amendment clause must be read as though the word "because" was the opening word of the guarantee. Today, of course, the "state militia" serves a very different purpose. A huge national defense establishment has taken over the role of the militia of 200 years ago.

Some have exploited these ancient concerns, blurring sporting guns -- rifles, shotguns and even machine pistols -- with all firearms, including what are now called "Saturday night specials." There is, of course, a great difference between sporting guns and handguns. Some regulation of handguns has long been accepted as imperative; laws relating to "concealed weapons" are common.

Burger here seems to be saying that "sporting arms" - weapons not particularly suited for militia service - are protected by the Second Amendment, but somehow handguns, especially cheap "Saturday night specials" are not. But the Parker decision was specifically about keeping a loaded firearm in ones own home - a condition flatly illegal in Washington, D.C. What does Burger have to say about that?

Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing -- or to own automobiles. To "keep and bear arms" for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago

(Emphasis mine.) Now, I've read the Constitution thoroughly. Where other than the Second Amendment would you get the idea that it protects "the right of hunters to own and keep sporting guns for hunting game"? Even though the Second Amendment says not word one about hunting or sporting use?

Odd that Professor Spitzer left that out, isn't it? Let's continue:

Alone among federal rulings siding with the Parker majority is a 2001 case from the Fifth Circuit, U.S. v. Emerson, when for the first time a federal court embraced the "individualist" view.

Correct again. And how did they do it? By studying the actual history of the Second Amendment. I've read the decision. Most of Professor Spitzer's audience has not.

Yet even this case offered little meat to supporters of the individualist view, since the Emerson court upheld Timothy Joe Emerson's prosecution for violating a federal gun law (he was later convicted).

What did the decision actually say?

Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country. Indeed, Emerson does not contend, and the district court did not hold, otherwise.

and

We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia. However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights. Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds.

We remand the cause for further proceedings not inconsistent herewith.

The Fifth Circuit examined Emerson's claim to a violation of his Second Amendment protection of his right to arms, studied the history of the Second Amendment, concluded that the right was an individual one, but - like every other individual right - subject to "limited, narrowly tailored specific exceptions or restrictions for particular cases," and that Emerson had received due process "albeit likely minimally so," so that his right had not been violated.

It was a pretty good decision, though the court (probably wisely) stayed far away from trying to define the exact scope of the Second Amendment.

Continuing:

Until Parker, Emerson had been ignored not only by the other circuits, but even by other Fifth Circuit courts.

Not so! The Ninth Circuit majority in Silveira v. Lockyer had some pretty harsh things to say about it, and it's been mentioned in more than one of the dissents in that court both in Silveira and Nordyke v. King.

While accepting a militia basis for the Second Amendment, the Parker court concluded that the amendment also "protects an individual right to keep and bear arms . . . for such activities as hunting and self-defense,"

A position also taken by Chief Justice Warren Burger, no? Isn't he an authority anymore?

with the latter encompassing "either private lawlessness or the depredations of a tyrannical government." Parker's linchpin for this sweeping conclusion is its assertion that the reference to "the people" when read "intratextually" (that is, assuming it has the same meaning throughout the document) "leads us to conclude that the right in question is individual."

Right. Since "the people" who have the right to assemble, petition for redress of grievances, have a protection against unreasonable search and seizure, etc, are, you know, individuals, but "the people" who have the right to keep and bear arms are states. It's blindingly obvious.

If you're a mendacious putz.

Since Americans had a "pre-existing right" to protect themselves and hunt, these activities must also have come under the umbrella for the Second Amendment, they assert. The problem with this assertion, aside from the fact that the Bill of Rights was the product of many hands, is that no evidence supports it.

Oh really? Stay tuned.

All of the debate in the First Congress concerning the right to bear arms dealt with military matters. Worse, Parker's claim conflates very different rights.

Individual self-defense was protected for centuries under the common law, just as modern criminal law recognizes legitimate personal self-defense. It had and has nothing whatever to do with the Second Amendment.

Except that the Second Amendment protects the instruments necessary to effect ones self-defense.

And the invocations of an armed citizenry struggling to overthrow a tyrannical government arose from natural rights, not from the Constitution or the Bill of Rights. When Americans fought to end British rule, they were not only fighting against the British, but for their own, indigenous American government. Once that struggle was won, Americans traded violent overthrow for peaceful change – through the ballot box, the jury box, and the petitioning of their new government for the redress of grievances.

Did we surrender our natural rights when we formed the United States? This is Professor Saul Cornell's rather interesting position. I don't think so.

Professor Spitzer deliberately leaves out the box we're both using - the soap box - and the last box on which our liberty stands: the cartridge box. The doomsday provision, as 9th Circuit judge Alex Kozinski put it, "one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees."

What, that can't happen here?

The notion that the Second Amendment somehow enshrines a right of revolution for Americans contradicts the very idea of peaceful governance. In fact, as the Constitution says, militias are to be used to "suppress insurrections," not cause them. And the only attempt to include hunting in the federal Bill of Rights, arising from Pennsylvania, was defeated.

Well, at least Thomas Jefferson thought we should have a periodic rebellion just to keep our civil masters on their toes. Remember that "blood of patriots and tyrants" quote?

But here's where the real mendacity comes to the fore:

More bothersome in this federal court ruling is its failure to address the pertinent case law. The Parker majority ignores three Supreme Court cases that address the meaning of the Second Amendment. In U.S. v. Cruikshank (1876), the Court concluded that “bearing arms for lawful purposes” was not what the Second Amendment was about.

Really? As Clayton Cramer notes in a comment to Professor Spitzer's op-ed:

Cruikshank? The Supreme Court was looking for a way to end prosecution of Klansmen who had disarmed dozens of freedmen. (It was a lot easier to disarm the freedmen after murdering them.) Cruikshank not only found that the Second Amendment didn't apply in this situation, but similarly with respect to the right to peaceably assemble.

Right. Another one of those rights of the state.

Oh, wait...

Clayton doesn't quote the decision there, but I will:

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.

(Emphasis mine.) Keep this wording in mind. That sounds remarkably like a "pre-existing right," doesn't it? The court just narrowly said that the Federal government couldn't violate your (pre-existing) right to arms, but there was no protection against the state doing it.

All to legally justify the disarmament (and subsequent murder) of newly freed blacks. What a stellar decision to depend on.

More importantly, the Court stated flatly in Presser v. Illinois (1886) that the Second Amendment did not protect a citizen's right to privately bear arms; instead, it protected the "keeping and bearing of arms" so that the government could not be deprived of "their rightful resource for maintaining the public security" or "disable the people from performing their duty" to the government.

On this, Clayton responds:

Presser? The Illinois government was using the National Guard to terrorize unionists, and they responded by forming their own military organization. What was prohibited was an armed body of men marching through the streets--the relevance to individuals being armed is pretty small. More importantly, the decision doesn't say what Spitzer wasn't(sic) it to say.

He then quotes the actual decision:

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

This hardly jives with Professor Spitzer's contention that the right to arms is somehow not an individual one, but one somehow of the states, does it? And what does Presser use for a precedent? Cruikshank. Parker could have quoted that line in bold to support their position, but D.C. isn't a state, as the lone dissenter in Parker anguishes about.

Continuing:

And in 1894, the Court upheld a Texas law "prohibiting the carrying of dangerous weapons" in Miller v. Texas, turning aside a Second Amendment rights claim. Little wonder that these three cases went unmentioned.

Little wonder, indeed, since they support the Parker court far better than you'd admit. Clayton, again:

Miller v. Texas? The big problem with this case is that the Supreme Court did not claim that the right in question belonged to the states; they argued that it was a limitation only the federal government:

We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts.

The precedent cited by the court in Miller v. Texas? Cruikshank. That's circular reasoning on the part of Professor Spitzer, is it not?

But we're not quite finished:

The Parker majority does devote considerable analysis to the most recent Supreme Court case on the Second Amendment, U.S. v. Miller (1939). Here again, the court labors to reformulate the meaning of a case that is perfectly clear.

Yes, it is. But I see it perfectly clearly in an entirely different way than Professor Spitzer does, and there are a whole lot of us (including the majority in Parker) who see it the same way.

As Judge Karen Henderson noted in her dissent in Parker, Miller declares that "the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual states." Indeed, the Miller court stated flatly that the Second Amendment must be interpreted by its "obvious purpose to assure the continuation and render possible the effectiveness of such forces [militias] the declaration and guarantee of the Second Amendment were made."

The Parker majority view, however, asserts that Miller protects only a "weapons-based" right focusing "only on what arms are protected by the Second Amendment," because the Supreme Court upheld Miller's conviction for carrying a sawed-off shotgun (a gangster weapon regulated by a 1934 federal law) across state lines, as possession of that weapon held no "reasonable relationship" to a militia. Parker's twisted logic is that the Second Amendment is about protecting weapons ownership if the weapon has military utility, from assault rifles and bazookas to tactical nuclear weapons. The absurdity of Parker's argument underscores its desperation to achieve its real goal: to overturn the Supreme Court's Miller decision.

I've read Parker. I've read Miller. I've read so damned much caselaw I ought to have a JD diploma on my wall. The Supreme Court didn't "uphold Miller's conviction," it reversed the lower court's quashing of the indictment and remanded the case for trial. Miller was never convicted because he never appeared before a court again. His co-defendant Layton plead guilty. (Thanks for reminding me to mention that, Bob.)

The court in Miller heard the goverment's argument that Miller was not a member of a militia and therefore had no right to any firearm, and declined to decide the case on those grounds. If they had, we wouldn't be having this discussion. Instead they ruled on the narrow question of his weapon. The decision says this:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

(Emphasis mine.) Note two things: First, no defense was presented in Miller's behalf, else it could have been demonstrated to the court that short-barrelled shotguns had a long history of military service. Nobody filed a brief on Miller's behalf, no one stood in front of the court to plead his case. Second, the wording of that paragraph seems to me, and a lot of other people, to emphatically imply that had there been any evidence the Court would have had to find in Miller's favor. The Second Amendment would have protected not a state's right to arm its militia, but an individual's right to keep and bear such a weapon.

Tactical nukes? Who's twisting what, here?

Concluding:

Parker's bald judicial overreach abuses history and law to achieve a partisan political end – to paste into the Constitution a personal right to own guns. Its effort is an affront to the militia tradition, constitutional history, settled court precedent, and common sense.

Right. Seventy years of gun control history shows that the right to arms was first stripped from newly freed blacks, then others "not like us," and now, finally, everybody; and it's been done one slow step at a time by judicial overreach and abuse of history and law, ripping from the Constitution a personal right to own guns one thread at a time.

Parker just slapped a patch on the wound, and the gun control partisans are coming unglued.

UPDATE: Paul Helmke, master of mendacity for the Brady Center, has another perfect example of the deliberately misleading op-ed over at the Brady Blog. His commenters do a thorough job of pointing out his errors, though.

I wonder how much longer that outlet is going to allow comments? Some of them are scathingly funny.

ANOTHER UPDATE:

I just saw this. Apparently professor Spitzer reviewed Clayton Cramer's new book Armed America (order your copy today!). Clayton comments:

I'll be charitable and assume that Spitzer is working off a Brady Campaign summary of the 19th century Supreme Court precedents that he mentions, because if he actually had read them, it would be obvious that he's suffering creeping Bellesilesism.

In other words, "practicing deliberate mendacity."