April 6, 2013 § Leave a comment


This is my “new and improved” Phoenix edition, “Bob’s Remonstrance II”, “Bob’s Remonstrance Redux”, “The Remonstrant Returns”, “Bob’s Remonstrance Second Edition” or “I’m Baaaack”.

I fell and broke my right arm on February 15 and typing is still somewhat awkward, but not too difficult.  I’ve been watching the succession of farces and tragedies breathlessly chronicled on cable news channels and have a few thoughts I’d like to sort out and organize by writing about them.  So, “Once more dear friends, into the breach….”.


For the past couple of hours I’ve been wading through Tony Scalia’s opinion in District of Columbia v.Heller.  I have to admire his audacity.  In order to reach his conclusion:  That the Second Amendment protects the right of individuals to buy and possess guns, he had to ignore the obvious intent of the Amendment as well as ignore or reinterpret several decades of judicial precedent.  To do so, he had to embody the comic self-confidence of Humpty Dumpty, who famously declared, “‘When I use a word’, Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.  ‘The question is’, said Alice, ‘whether you can make words mean so many different things.’  ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.'”


“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”  Scalia begins his analysis by acknowledging the obvious:  “The Amendment could be rephrased, ‘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.'” (emphasis added)  He labels the preliminary clause, a “prefatory clause” and acknowledges that it requires a “logical connection” between it and the remaining language of the Amendment.

So far so good.

But then, Humpty Dumpty takes over and Tony is off to the races.  He begins the serpentine path to his conclusion by stating that the “logical connection” between the prefatory clause and the rest of the Amendment is only significant if consideration of that connection is required to resolve any ambiguity; that the only usefulness of the prefatory clause is to “clarify” the remaining language.

In the remaining pages of his opinion Scalia argues that, because the language at issue is unambiguous, no “clarification” is required and, hence, ” we don’t need no stinkin’ militia”

The fact that a 1939 Supreme Court decision (U.S v.Miller, infra) plainly interpreted the “prefatory clause” as a limitation on the meaning of the remaining language, and that hundreds of lower federal courts had likewise interpreted that language for decades, did not, to Humpty Dumpty Scalia, hint that, at the very least, there was some ambiguity.  Like Humpty Dumpty, he was the “master”  and it looked plain enough for him.


Scalia’s lengthy opinion includes quotes and citations to a massive set of historical documents and references to treatises on Constitutional law from American and British authors.  (never mind the yow-yow about “foreign law”).  Some of these authorities support his conclusion and some do not, but he plows ahead, discounting the authorities that agree with him and crowing about those that do.  For example, he quotes from state constitutions whose language must have been known to the framers of the Second Amendment.   Pennsylvania’s constitution provided, “That the people have the right to bear arms for the defence of themselves and the state.”   To some analysts, the specific reference to individual rights to guns suggests that the Second Amendment’s omission of such language implies that no such right was intended.  But not to Scalia.

In order to find precedent to support his conclusion, Scalia imports an old defamation case from the Massachusetts Supreme Court.  The Massachusetts constitution provided, “The people have a right to keep and to bear arms for the common defense . . . . ”  In Commonwealth vl Blanding, a libel suit brought against a newspaper, the Chief Justice wrote, “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse, like the right to keep and bear arms, which does not protect him who uses them for annoyance or destruction.”  Scalia interprets this dicta about gun rights to mean that the Massachusetts provision for the right to bear arms was not limited by the reference to “common defense”.  He wrote, “The analogy [drawn by the Massachusetts court between gun rights and press rights] makes no sense if firearms could not be used for any individual purpose at all.”

It is Scalia’s statement that “makes no sense.”  The limits of a right in a constitution is not equivalent to a ban on behavior or practice not protected .  Stating that Massachusetts citizens had a right to bear arms for purposes of “common defense” did not mean they were prohibited from keeping  guns for hunting.  It just meant their private ownership of guns was not protected to the same extent as their right to keep a gun “for the common defense”.

One of Scalia’s most heroic efforts was required to square his exegesis with the Supreme Court decision in United States v. Miller.  In this federal criminal case, the defendant was convicted of illegally transporting a sawed-off shotgun across state lines.   On appeal, he argued that his Second Amendment rights had been violated.

The Court disagreed and confirmed his conviction.  They held that the “militia clause” in the Second Amendment limited the protection of gun rights to guns appropriate for use by militias.  They decided that sawed-off shotguns were not the kind of weapons useful by militias and, thus, there had been no constitutional violation.

The plain thrust of the Court’s reasoning was, contrary to Scalia’s arguments, that the “prefatory clause” was, indeed, a limitation on the sweep of the protection provided by the remaining language of the Second Amendment.  Scalia, however, was undaunted.  He interpreted the decision as an affirmation of his analysis.  He wrote that, if the Court had believed that the prefatory clause limited the  meaning of the remaining language, they would have ruled that, because the defendant was not a member of a “well regulated militia”, he was not entitled to the protection of the Amendment.  Since they chose not to base their ruling on that argument, he read their minds and declared that they agreed with him.

Scalia does not disclose whether the United States argued the issue that he insists was decided sub silentio by the Court.  He simply applies his Humpty Dumpty authority to the matter and moves on.


One of the ironic features of Scalia’s skewed and transparently sophistic analysis of the Miller case. is the fact that the Miller decision was authored by Scalia’s mirror image predecessor, Justice James Clark McReynolds.  Like Scalia, McReynolds was perhaps one of the most despised and controversial men ever to serve on the Court.   He was an anti-Semitic ill mannered misogynistic reactionary.  When Louis Brandeis was appointed to the Court, McReynolds did not speak to him for three years.  When Benjamin Cardozo was appointed, McReynolds said, “Huh.  It seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew or both.”   He waged relentless war on FDR’s New Deal legislation.  When a woman lawyer appeared to argue a case, he would remark, “Here is that female again.”  He sometimes left the bench and refused to listed to arguments made by female lawyers.

I don’t mean to imply or allege that Anton Scalia is anti-Semitic or misogynistic.  I’m sure that is not true.  He is reported to enjoy a close friendship with Justice Ginzburg.  He does, at least to me, resemble McReynolds because, like McReynolds he barely conceals his zealous adherence to an ideology that has little or no respect for precedent or logic.  I think he and his cohorts, Alito, Thomas and, perhaps, Roberts, are dedicated to undoing much of the law made by the Supreme Court since 1937.

I would have more respect for Scalia if he would simply vote to overrule precedents with which he disagrees.  His tortured analysis is an insult to intelligence and the law.

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