Thursday, April 24, 2014

Justice Stevens and me

I remember reading a post by a conservative blogger once in which he asserted that the one issue that most starkly separates liberals and conservatives in American society is not abortion or gay marriage or even the size and scope of government. It’s guns. At the time, I wasn’t quite sure that this was the case. I thought that maybe he was writing about one particular issue and that he was going out of his way to make that issue seem more salient than it was.

Over time, though, I think I’ve come to see what he meant. The issue of guns in American society may not be the biggest issue in the mind of any one liberal or conservative, but if any two of them are debating it, you’d be hard-pressed to find a more polarizing topic—one filled with more emotion, more vitriol, or with more space in between the two points of view. Yes, there is a pretty wide gap separating liberals and conservatives on guns—a gap that I often think cannot be bridged, for better or worse.

I’m thinking (and posting) about guns right now because I read an excerpt of former Supreme Court Justice John Paul Stevens’ new book in The Washington Post last week. In his book, Justice Stevens proposes six amendments that he believes should be made to the Constitution, one of which is a rewording of the Second Amendment. That amendment currently reads as follows: “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.”

Justice Stevens discusses the two competing interpretations of this text which are at the heart of the gun debate in the United States and, specifically, the debate over the constitutionality of various forms of gun control legislation. Essentially, those on the right view the prefatory clause—“A well regulated militia being necessary to the security of a free state”—as announcing a purpose for guaranteeing American citizens an individual right to bear arms. Those on the left argue that the prefatory clause limits the right to bear arms to apply only within the use of those arms for militia purposes.

Now, I could argue for days and days with a liberal as to which interpretation is correct and I would get nowhere. I’m sure my counterpart wouldn’t break any new ground with me, either. (In case you’re still wondering, I accept the conservative argument on the Second Amendment.) And I’m not posting this to try and convince anyone who disagrees with me of my particular point of view. I do, however, want to specifically rebut a few things Justice Stevens mentions in his excerpt dealing with the Second Amendment.

First, Justice Stevens predictably criticizes the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. Chicago, two cases in which he himself dissented. The former case established that the Second Amendment does indeed guarantee an individual right to keep and bear arms and the latter incorporated the Second Amendment to the states via the 14th Amendment, meaning that same individual right is protected from state governments as well as the federal government. I find Justice Stevens’ objection to the McDonald decision in particular to be very puzzling. Incorporation of the Bill of Rights has been done on a piecemeal basis, one case at a time. For example, the Fifth Amendment right to just compensation in the event of government seizure of property was incorporated in 1897, while the guarantee against double jeopardy trials contained within that same amendment wasn’t incorporated until 1969.

As far as I know, there has been relatively little controversy over the idea of incorporation of the Bill of Rights in the modern judicial era. No one has tried to go back and undo all of the rights that were incorporated in the 19th and 20th Centuries, especially not liberal justices like Stevens, who continually fight to protect the rights of individual citizens from capricious laws. And yet, when the McDonald majority decided to treat the Second Amendment the same way the Court has treated every other amendment, Justice Stevens asserted that “Even apart from the States’ long history of firearms regulation and its location at the core of their police powers, [gun regulation] is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling.”

While there definitely have been Supreme Court justices who often give this sort of deference to state sovereignty, Justice Stevens has rarely been among them. After all, he was in the majority in Lawrence v. Texas, when the Court overturned a Texas law outlawing homosexual sodomy. He agreed that this state law violated a constitutional right to privacy via the 14th Amendment—a right that isn’t explicitly written anywhere in the Constitution, much less within the Bill of Rights. Why he would suddenly turn an about face and want to defer to state police power when it comes to a much more explicit constitutional right is beyond me. And why should the Second Amendment be treated differently than, say, marriage laws? The definition of marriage has also long been “at the core” of state police powers, but I think Justice Stevens would agree with me that there is ample justification for Court meddling in that case. And between the two of us, he’d be the only one with a double standard.

Secondly, Justice Stevens bemoans “Congress’s failure to enact laws that would expand the use of background checks and limit the availability of automatic weapons” in the wake of recent shootings. I’m not going to argue with his opinion here; I just want to correct one thing. Congress does not need to pass any law limiting the availability of automatic weapons because they are already functionally illegal to own. The National Firearms Act of 1934 made them extremely expensive to obtain and the Firearm Owners Protection Act of 1986 outlawed the manufacture of any new automatic weapons in the United States (see this helpful article). Practically no one outside of novelty collectors and the motion picture industry can legally own an automatic weapon today. The debate that has ensued in modern times after mass shootings has been about whether or not to outlaw so-called “assault weapons,” which are semiautomatic. A Supreme Court justice should know better.


And my last point concerns the text of Stevens’ proposed fix to the Second Amendment. He wants it to read: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.” My question is this: why would you need to add those five extra words if that limitation supposedly already existed? I think his solution is an admission that the Second Amendment isn’t what he says it is. At the very least, he’s admitting that the other side has a legally sound argument. If he truly believed he was right, then the Second Amendment would stand as is. But in the end, you have to change it, otherwise that pesky “right of the people” becomes the only thing that matters. Makes you think, doesn’t it?  

Monday, April 14, 2014

There is no such thing as too much speech

Given the media’s uproar over the Supreme Court’s decision in McCutcheon v. FEC this past Thursday, any reasonable observer might have expected that that case dealt with some spectacularly engaging topic. Something like affirmative action or gay marriage. As it turns out, it was a truly riveting decision about…campaign finance. Not what you were expecting? Well, this particularly technical (and boring) area of the law has recently become an obsession among the American left, particularly in the wake of the decision in Citizens United v. FEC, in which the Court ruled that independent expenditures made by corporations and unions during election seasons constituted symbolic political speech and are therefore protected under the First Amendment from certain types of campaign finance regulation. As I have noted in past posts, anyone who tells you that Citizens United was a corporate personhood case isn’t at all familiar with the ruling.

But before I talk about the reaction to the ruling in McCutcheon last week, allow me to provide a quick (and hopefully not-too-boring) summary of the facts of the case. Shaun McCutcheon, a businessman from Alabama, wanted to give $1,776 contributions to a large number of Congressional candidates. You might think, at first, that this is totally permissible, since the Bipartisan Campaign Reform Act (our biggest piece of campaign finance legislation) caps donations to individual candidates at $2,600 per person. (This applies at both the primary and general election level, raising the effective limit to $5,200.) But, as it turns out, this was not legal because BCRA also has an aggregate limit—no one person can donate more than a total of $48,600 to all candidates (or $74,600 to political committees) over the course of any two-year election cycle. So, even though McCutcheon’s checks were under the $2,600-per-candidate minimum, he could only give those checks to so many candidates. Too many $1,776 checks would be over the aggregate limit. Does that make sense? Riveting stuff, I know.

Well, McCutcheon sued the government because he wanted to give those checks to more candidates than BCRA said he could. And last week, the Supreme Court decided that the aggregate limits in BCRA were unconstitutional, on the grounds that they violated the First Amendment right to free speech. Campaign contributions, in this case, can be considered symbolic political speech.

The left, of course, is outraged. There is a cute little saying among American liberals: “If money is speech,” they say, “then speech is never free.” I must admit, this makes for clever wordplay, but there isn’t much substance to what they’re saying. In a country where the judiciary has already decided (rightly, in my opinion) that black armbands and flag burning constitute symbolic speech, then money spent on political advocacy is hardly a stretch. Chief Justice Roberts actually says something quite similar to this in his opinion. I can understand on some level, I suppose, how one might perceive a degree of “unfairness” in this arrangement. After all, it goes without saying that those with more money can contribute more to political candidates and party committees. But I fail to see how that differs from any other Constitutionally-guaranteed right—or really, anything at all. Everything costs money, doesn’t it? Guns cost money, but I haven’t ever heard anyone complain about how rich people are better able to exercise their Second Amendment rights by purchasing more of them. Good lawyers cost more money than bad ones, and yet I haven’t heard anyone propose a law that caps the amount of money an individual can spend while exercising his Sixth Amendment right to counsel.

But it’s not just cynicism that forces me to disagree with the left on this issue. I simply don’t share their opinion of what constitutes “equality.” Equality is not a system in which the government reaches in its hand and decides how much money citizens get to have or spend. Equality is not reducing everyone to the lowest common denominator. Equality is a system in which everyone has an equal opportunity, not an equal outcome. And last I checked, there is a great deal of social mobility in the United States. Anyone who wants to amass enough wealth to give a $1,776 check to every member of Congress is free to do so. And it’s not the government’s place to tell you how much you can engage in the political process. And make no mistake—that’s exactly what campaign contributions represent: participation in democracy.

So don’t listen to Justice Breyer when he says that the First Amendment right to free speech is somehow tempered by the fact that “Speech does not exist in a vacuum.” That shouldn’t matter. Speech is a guaranteed individual right—how other people feel about it is irrelevant. After all, this is the same right that allows the Westboro Baptist Church to disgust the entire nation with its horrendous funeral protests, isn’t it? And don’t listen to the leftist propaganda spouted by the editorial board of The New York Times, who would have you believe that “[t]his money can then be funneled to specific campaigns through the use of joint fund-raising committees, effectively nullifying the per-candidate limit.” As they themselves admit in their opinion, only 1,715 donors gave the maximum amount of money to political committees in 2012. Only 591 did the same for individual candidates. That’s an incredibly small number of people. There is no secret vault of cash waiting to flood our electoral system. So what if they can give their $2,600 to as many candidates as they want? Does the $2,600 suddenly become a corrupting influence after you’ve given it to the 10th individual candidate?


The left is just angry because many of that small number of extremely wealthy donors are conservative. As David Bernstein points out in the article that I linked in the previous paragraph, the left already dominates the mainstream media, academia, Hollywood, and the arts. I would argue that all of those outlets combine to exert a vastly more outsized influence on public opinion than 591 donors. Should we now limit the amount of money the Times can spend on its coverage? No, of course not. Then they wouldn’t be able to tell everyone why McCutcheon was a bad decision. 

Why do we do this to ourselves?

Why do we do this to ourselves?