Antonin, Get Your Gun

The Supreme Court's recent decision in District of Columbia v. Heller, No. 07–290 (6/26/2008), has garnered a lot of attention as a confirmation of the 2nd Amendment's "right to keep and bear arms." But there is both less to the opinion, and more to the opinion, than first meets the eye.

The jurisprudential weaknesses of the majority opinion authored by Justice Antonin Scalia are beyond the scope of this blog posting (I may elaborate later), but the actual holding of the case, and the true effect of the opinion, need to be explained more fully than has been covered in the popular press to date.

Although the Supreme Court held that the Second Amendment's "right of the People to keep and bear arms" was an individual right and not a right of the states to maintain militias, and held that a ban on handguns violated the Second Amendment, the holding of the case was still relatively narrow because the law in question was an ordinance of the District of Columbia and not a statute enacted by one of the states.

The District of Columbia is a peculiar place, constitutionally speaking, because it is governed by Congress in accordance with Article I, Section 8, clause 17, of the Constitution, and is not a "state" (or a part of any state) within the meaning of the Constitution. That peculiarity is important because, technically speaking, the Bill of Rights (the first ten amendments to the Constitution, including the 2nd Amendment) are binding only on the federal government and not the states. The fundamental freedoms guaranteed by the Bill of Rights apply to the states only through the 14th Amendment's guarantee of due process of law. So (for example), a state law that violates the right to freedom speech is not, technically speaking a violation of the 1st Amendment, which only applies to the federal government, but is a violation of the 14th Amendment.

In the Heller case, Scalia's opinion specifically recognized that the question of whether 2nd Amendment rights were "incorporated" into the 14th Amendment (and so applicable to the states) was not before the court, and that the court had previously ruled that the 2nd Amendment did not apply to the states. This is explicit in footnote 23, discussing a statement in United States v. Cruikshank, 92 U. S. 542, 553 (1876) that stated that the 2nd Amendment only limited the power of Congress, and was not incorporated into the 14th Amendment:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Slip Opinion, page 48, note 23 (emphasis added).

This footnote says (and suggests) several things.

First, the question of whether the 2nd Amendment applies to state legislation was not before the court in Heller and was not decided, and so remains an open question.

Second, the Supreme has in past decisions (Presser and Miller) affirmed that the 2nd Amendment applies only the federal government.

Third, that Cruikshank (and perhaps later decisions) did not interpret the 14th Amendment in the same way that later decisions interpreted that amendment.

The third point, combined with Scalia's citations to statements made in Congress during the debates over the 14th Amendment that the 2nd Amendment represented a "fundamental right" enjoyed by American citizens (see pages 41-47), are clear signals that Scalia believes the 2nd Amendment does apply to the states, and is just waiting for right case in which to make that decision.

Clarence Thomas: Complex or Conflicted?

In a news report last week, following a lengthy interview with Supreme Court justice Clarence Thomas, ABC’s Jan Crawford Greenburg described him as one of "the most complex, compelling, maligned, and misunderstood figures in modern history."

I'm sure she meant that as a compliment, even though the same things could be said of the steamship Titanic or O. J. Simpson, but the word that really sprang out at me was "complex," because to me, "complex" is pretty much synonymous with "conflicted."

I have a cat that's conflicted. She will come over and rub up against your legs, and you can reach down and pet her for a few seconds, but then it's suddenly too much and she will whirl and hiss and swipe at you with her claws. Clarence Thomas seems to be the same way.

Thomas seems to have been the beneficiary of some liberal policies and liberal institutions, allowing him to get a prestigious law school education at Yale and eventually get a place on the U.S. Supreme Court. But it's "too much" and instead of purring, he lashes out with his claws.

He also seems to be angry (and conflicted) about his employment after law school. In his new book, he says that he put a 15 cent price sticker on his diploma after several employers turned him down. During his interview on "60 Minutes," Thomas said that he couldn't get a job, and that he eventually "swallowed hard" and took a job that didn't pay much money. The interviewer, Steve Kroft, described the job as "a $10,000-a-year job in Jefferson City, Mo., working for the state’s attorney general, John Danforth." But, as Frank Rich pointed out in his column in the New York Times, the position Thomas got was as an assistant attorney general, and John Danforth told a very different story in 1991, when he was a Senator supporting Thomas's appointment to the Supreme Court. Danforth testified during the confirmation hearings that he had gone to New Haven to recruit Thomas before he graduated. So Thomas had a job before he graduated, and he went from law school to one of the top law enforcement positions in state government. Furthermore, working for Danforth (also a Yale graduate) led to employment in Washington once Danforth was elected to the Senate, which led to Thomas's positions in the Reagan administration, which lead to his appointment to the U.S. Court of Appeals for the D.C. Circuit, which led to his Supreme Court appointment, in which he had the support of his first employer, Senator John Danforth. That sounds like a lot of good fortune, beginning with his first job out of law school, but all Thomas can do is complain about how few other job offers he had and how little his first job paid. (Incidentally, the top law firms paid starting salaries of only $14,000 to $16,000 back in 1974, and government service always pays less than private practice, so his starting salary was probably either average or not much below average for a beginning lawyer, even a Yale graduate.)

And Thomas's continuing obsession with Anita Hill is also puzzling. In his book, he describes her as a "mediocre lawyer." And yet, as Hill herself points out, she was also a graduate of Yale University, he recruited her to come work for him not once but twice, and he wrote a letter of recommendation that helped her get her first teaching job. And she has continued to enjoy what appears to be a successful academic career (she is now a professor at Brandeis) so she is hardly an intellectual light-weight.

And, speaking of Anita Hill, did Clarence Thomas commit perjury during his confirmation hearings in 1991? One of them must have been lying, because she made very specific allegations and he denied all of them. Looking back with the benefit of hindsight, it is increasingly clear that he was the liar and not her.

One new reason to believe that Thomas lied in 1991 is that he has not told the entire truth about other things since then. As shown above, both his book and the interviews following the publication of his book contain numerous misrepresentations about both Anita Hill and his own career.

Another reason to believe that Thomas lied is his continuing anger. My experience has been that people are more likely to be angered by accusations that contain some truth than by accusations that are completely untrue. In continuing to try to negate Professor Hill, Thomas doth protest too much.

Which exposes another conflict. Thomas was married in 1971 and divorced (despite being raised as a Roman Catholic) in 1984. So when Hill was working for him, from 1981 through 1983, Thomas was undoubtedly going through a great deal of personal pain and might have "acted out." He considers himself a moral person and a good Catholic, and yet he also tried to impose his sexuality onto a female employee and he can't be comfortable with those memories.

And so we have an angry, conflicted, perjuror on the Supreme Court.

Professor Hill has written that, "The question of whether Clarence Thomas belongs on the Supreme Court is no longer on the table — it was settled by the Senate back in 1991." If Clarence Thomas lied during his Senate confirmation hearings, then the issue of whether he belongs on the Supreme Court is not settled, and should be raised again, this time in impeachment hearings.