May 21, 1969 – Warren E. Burger Nominated As Chief Justice of the U.S. Supreme Court

On this day in history, President Richard Nixon nominated Warren Burger to be the 15th Chief Justice of the Supreme Court. Nixon was hoping to turn back the “activist tide” of the Court under Chief Justice Earl Warren. Burger was known as a Nixon supporter, a critic of Chief Justice Warren, and an advocate of a strict constructionist reading of the Constitution. Nevertheless, such a philosophy did not always coincide with conservative interests, as when Burger led the court in the unanimous decision United States v. Nixon (418 U.S. 683, 1974), holding (in the matter resulting from the Watergate scandal) that no person, not even the president of the United States, can be completely above the law, nor use executive privilege as an excuse to withhold evidence that is “demonstrably relevant in a criminal trial.”

Justice Warren E. Burger

Justice Warren E. Burger

Justice Burger retired on September 26, 1986, in part to lead the campaign to mark the 1987 bicentennial of the United States Constitution. He had served longer than any other Chief Justice appointed in the 20th century.

He did not hide from the limelight thereafter however. Most notably, during an interview by Charlayne Hunter-Gault on “The MacNeil/Lehrer NewsHour” (PBS Television Broadcast, December 16, 1991), Justice Burger was asked how he thought the Bill of Rights could be better. He responded:

If I were writing the Bill of Rights now there wouldn’t be any such thing as the Second Amendment, that a well regulated militia being necessary for the defense of the state, that people (have the) right to bear arms. This has been the subject of one of the greatest pieces of fraud – I repeat the word fraud – on the American public by special interest groups that I have ever seen in my life time.”

As legal scholar Cass Sunstein reported reported, Justice Burger further declared in a speech in 1992: ” . . . the Second Amendment doesn’t guarantee the right to have firearms at all.” In his view, the purpose of the Second Amendment was “to ensure that the ‘state armies’–‘the militia’–would be maintained for the defense of the state. “

Sunstein adds that far from making a reckless statement, “Burger meant to describe what he saw as a clear consensus within the culture of informed lawyers and judges–a conclusion that was so widely taken for granted that it seemed to him to be a fact, and not an opinion at all.”

Alas, times have changed. As law professor Mark Tushnet wrote in 2007 (Out of Range, Oxford University Press), the new dispute over the Second Amendment can be understood as part of the “culture wars” now dividing the country. The pro gun-rights movement is trying to use the imprimatur of the Constitution to bolster its position, and has achieved enormous success, even within the courts.

But the use of the Second Amendment can certainly be seen as a stretch, as Burger maintained. Sunstein writes:

. . . to explore the original understanding of the Second Amendment is to enter an altogether different nation, whose central preoccupations were not at all like our own. In the founding era, many people were fearful of a standing army, and that fear was closely entangled with their support for the right to keep and bear arms . . . as a way of protecting state militias and thus checking the national government.”

Sunstein observes that state militias no longer serve anything like their old role:

As some of the founders hoped and others feared, national defense is undertaken by a professional military, which is the equivalent of a standing army. And if the national government is really determined to oppress us, we won’t be much helped by pistols and rifles.”

“The individual right to have guns,” writes Sunstein … “is best taken as a contemporary creation and a reflection of current fears, not as a reading of the civic-centered founding debates.”

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We may hear more from Burger on the subject after 2026, when his papers, donated to the College of William and Mary, will be open to the public. In the meantime, we are assured of hearing more about the ways in which the Second Amendment “guarantees” the right to obtain the means to wreak havoc and death on one’s fellow citizens.

May 17, 1954 – The U.S. Supreme Court Decides Brown v. Board of Education

On May 17, 1954 the Supreme Court handed down a decision in Brown v. Board of Education (347 U.S. 483), declaring state laws establishing separate public schools for black and white students unconstitutional.

Even sixty years later, according to the Economic Policy Bureau, residential segregation, private school vouchers, and other methods are still employed to get around the ruling of the Courts.

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Achievement Gap Between U.S. Richest and Poorest Students Growing Dramatically

NPR is running a series of stories on the nationwide school-funding imbalance, to explain what happens when many of America’s poorest students also attend its poorest schools.

Some of the information from the reports comes from “Is School Funding Fair? A National Report Card (NRC)”, released by the Education Law Center (ELC) on March 16, 2016 which found that “in most states, public school funding remains unfair and inequitable, depriving millions of U.S. students of the opportunity for school success.” One of the more disturbing findings of the report is that “Certain regions of the country exhibit a double disadvantage – many states with low funding overall add no additional funds for concentrated student poverty. These include Alabama, Mississippi, and Florida in the Southeast, and Colorado, Arizona, and New Mexico in the Southwest.”

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As Bruce Baker, the Rutgers University Graduate School of Education Professor who developed the report’s methodology, told NPR:

You’ve got highly segregated rich and poor towns. [They] raise vastly different amounts of local revenue based on their local bases . . .”

(Perhaps needless to add, richer students can also opt out of the public school system altogether, attending expensive magnet schools that provide them with even more of an advantage for colleges and their futures. In addition, they also have ready access to educational enhancements, such as computers, robotic courses, studies abroad, and the like, that poorer districts rarely see.)

Kentucky FIRST LEGO League’s State Robotics Competition

Kentucky FIRST LEGO League’s State Robotics Competition

In San Antonio Independent School District v. Rodriguez (411 U.S. 1, 1973), plaintiffs argued that the way schools are funded violates the U.S. Constitution’s equal protection clause, which says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” In a split 5-4 decision, the Supreme Court ruled against Rodriguez, with Justice Lewis Powell delivering the opinion of the Court, averring there is no right to equal funding in education under the U.S. Constitution:

Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. [n69] But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause.”

Dissenting, Justice Thurgood Marshall wrote:

The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority’s decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth. More unfortunately, though, the   majority’s holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district.

. . .

I must once more voice my disagreement with the Court’s rigidified approach to equal protection analysis.”

Portrait of Supreme Court Thurgood Marshall (Photo by Bachrach/Getty Images)

Portrait of Supreme Court Thurgood Marshall (Photo by Bachrach/Getty Images)

Justices Brennan, Douglas, and White also dissented.

As law professor Camille Walsh argued in her analysis of the case [Camille Walsh, “Erasing Race, Dismissing Class: San Antonio Independent School District v. Rodriguez,” 21 La Raza L.J. (2011):

The Rodriguez claimants were low-income children and families of color whose school district was dramatically unequal in every respect when compared to the local, wealthy, white school district at issue in the case. The Court treated, however, the claims of race and class discrimination that the claimants put forward as entirely independent, and ignored the plaintiffs race claim in order to focus on class alone, which the Court dismissed as a category not entitled to constitutional protection. This article argues that the outcome in Rodriguez was directly tied to legal frameworks that negated the possibility of protecting more than one constitutional category at the same time. The Court’s decision provided an economic privacy and local fiscal control rationale that solidified the separation of race and class as categories of constitutional analysis, to the detriment of future claims at the intersection of race and class remedies for segregated and unequal schools.”

In the four decades since Rodriguez, as NPR observes, dozens of lawsuits have been filed in state courts, arguing that their funding systems are either unfair, inadequate or both.

Of note, in the 2011 case Lynch, et al. v. State of Alabama, et al. Judge C Lynwood Smith, Jr. of the U.S. District Court for the Northern District of Alabama wrote an 800-page opinion, in which he “excoriated Alabama’s funding system.” Still, as reported by NPR, “he found the plaintiffs were not entitled to relief from the court,” writing in his opinion:

This request for a remedy untethered to a constitutional violation, though sincere, misunderstands the nature of the judicial power. The courts are not empowered generally to ‘make things right.’ The district court’s jurisdiction was invoked by plaintiffs to recognize and remedy the constitutional wrongs alleged to exist in Alabama’s system of higher education. [emphasis in original.]

(According to The Southern Poverty Law Center, Alabama’s overall funding level is well below average, ranking 38 out of 49, even when adjusting for regional wages, economies of scale, and other factors.)

You can read more about the NPR series here, and follow along with new reports in the coming weeks.

April 22, 1987 – The U.S. Supreme Court Decides McCleskey v. Kemp

On this day in history, The U.S. Supreme Court handed down its decision on the case McCleskey v. Kemp (481 U.S. 279), which since has been widely criticized. (It was named one of the worst modern Supreme Court decisions by many sources: see, e.g., “roundups” of worse cases here and here.) Even the author of the decision, Justice Lewis Powell, stated later that he wished he could change his vote in this case.

Warren McCleskey, a black man, was convicted of murdering a white police officer in Georgia and sentenced to death.

In a writ of habeas corpus, McCleskey argued that a statistical study by law professor David Baldus, examining over 2000 murder cases in Georgia during the 1970s, showed substantial disparities in the imposition of the death penalty depending on the victim’s race, and smaller disparities associated with the defendant’s race. [Baldus, David C.; Pulaski, Charles; Woodworth, George, “Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience,” Journal of Criminal Law and Criminology (Northwestern University) 74 (3): 661–753, 1983). Since that time, additional studies of other localities have confirmed that defendants who kill whites are more likely to be sentenced to death than those who kill blacks.] Specifically, controlling for thirty-nine nonracial variables, Baldus found that in Georgia, defendants charged with killing white victims were 4.3 times more likely to be condemned to death than defendants charged with killing black victims, and that black defendants were 1.1 times more likely to receive the death penalty than white defendants.

However, in a 5-4 decision authored by Justice Lewis F. Powell, Jr., the Court ruled against McCleskey. Justice Powell decided that the overall statistics offered insufficient proof for any particular case, writing:

The Court today holds that Warren McCleskey’s sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a large shadow on the capital sentencing process. The Court arrives at this conclusion by stating that the Baldus study cannot ‘prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey’s particular case.’ . . . Since, according to Professor Baldus, we cannot say ‘to a moral certainty’ that race influenced a decision . . . we can identify only ‘a likelihood that a particular factor entered into some decisions,’ and ‘a discrepancy that appears to correlate with race.’ This ‘likelihood’ and ‘discrepancy,’ holds the Court, is insufficient to establish a constitutional violation. (emphasis in original)”

Associate Justice Lewis F. Powell, Jr.

Associate Justice Lewis F. Powell, Jr.

Justice Powell adduced four additional reasons he believed supported his decision:

…the desire to encourage sentencing discretion, the existence of ‘statutory safeguards’ in the Georgia scheme, the fear of encouraging widespread challenges to other sentencing decisions, and the limits of the judicial role.”

Three dissents were filed in the case, by Justices Brennan, Blackmun, and Stevens. Justice William Brennan’s passionate dissent is worth quoting at some length.

Part I of Brennan’s dissent states his belief that “the death penalty is in all [emphasis added] circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments.”  

Even aside from this consideration, Brennan did not agree that the prospects of equal treatment for black defendants in Georgia were fair and balanced, as it were. He emphasized that regardless of whether McCleskey could prove racial bias, the very likelihood of it should be sufficient for an Eighth Amendment claim:

Since Furman v. Georgia, 408 U.S. 238 (1972), the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one. Furman held that the death penalty may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.”

Brennan adds his own statistical analysis of the findings, declaring:

. . . The rate of capital sentencing in a white-victim case is . . . 120% greater than the rate in a black-victim case. Put another way, over half — 55% — of defendants in white-victim crimes in Georgia would not have been sentenced to die if their victims had been black. Of the more than 200 variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates — as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide.”

But, he goes on, there is more.

Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all white-victim cases was almost 11 times greater than the rate for black-victim cases. Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks. In addition, prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims. (emphasis in original)”

He concludes on this point:

The statistical evidence in this case thus relentlessly documents the risk that McCleskey’s sentence was influenced by racial considerations.”

He adds that in the case of Georgia, “the conclusion suggested by those numbers is consonant with our understanding of history and human experience.”

He then goes on to answer Justice Powell’s other objections to finding for McCleskey, which you can read here.

Associate Justice William J. Brennan, Jr.

Associate Justice William J. Brennan, Jr.

Justices Harry Blackmun and John Paul Stevens also dissented, deviating from Brennan in that they were not willing to rule out any death penalty cases. Brennan differed from Blackmun and Stevens in their belief that guidelines about what constituted “extremely aggravated cases” would minimize the risk of discriminatory enforcement of the death penalty and that “narrowing the class of death-eligible defendants is not too high a price to pay for a death penalty system that does not discriminate on the basis of race.”

Reverberations from the majority in the McCleskey decision reached far beyond the case of Warren McCleskey, creating a burden of proof almost impossible to meet. Blume, et al. argue that there are compelling reasons to read McCleskey narrowly. [John H. Blume, Theodore Eisenberg, and Sheri Lynn Johnson, “Post-McCleskey Racial Discrimination Claims in Capital Cases,” 83 Cornell L. Rev. 1771 (1998, available online here.) Nevertheless, they observe, “most lower courts rejects post-McCleskey capital-sentencing racial discrimination claims without any individualized analysis.” (Id., at 1780—1781.) Indeed, the entire process of the criminal justice system has continued to discriminate against blacks, from arrest, to treatment by police, to juror evaluation, to rates of imprisonment, to assignment of the death penalty.

According to The New York Times:

McCleskey is the Dred Scott decision of our time,’ Anthony G. Amsterdam, a law professor at New York University, said in speech last year at Columbia. ‘It is a decision for which our children’s children will reproach our generation and abhor the legal legacy we leave them,’ said Professor Amsterdam, who worked on the McCleskey case and many other capital punishment landmarks.”

As Blume et al. conclude (Id. at 1809-1810):

Fear of labeling state officials racist, the need for prosecutorial discretion, and general reluctance to address racial claims all may fuel the doctrinal missteps in post-McCleskey county-level cases. An understanding of courts’ reluctance is not, however, a reason to condone such action. Judges, especially federal judges, enjoy constitutionally protected independence precisely because they must make unpopular and difficult decisions. In the proud modern history of the judiciary, judges’ finest hours have come by challenging discrimination rather than sheltering it. It would be ironic if they now were to afford racial discrimination its greatest shelter, through heightened burdens of proof, in cases involving life and death.”

March 3, 1832 – The U.S. Supreme Court Decides Worcester v. Georgia

Samuel Worcester was appointed as a missionary to the Cherokee Nation in Georgia in 1825. He lived with his wife in New Echota, the capital of the Cherokee Nation from 1825 to the forced removal of the Cherokees in the 1830s.

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In March, 1831, members of the Georgia State Guard, in furtherance of the goal of imposing state authority over Cherokee land, arrested Worcester for violating a Georgia law that no white person could live on Cherokee land without a state permit. Worcester countered that he was a U.S. official, having served as the postmaster at New Echota, and moreover was conducting missionary work with the permission of the federal government. He was released, but then confronted again three weeks later, this time accused by the state governor of “criminal” conduct. In the meantime, President Andrew Jackson not only had Worcester dismissed as postmaster but said furthermore that the missionaries were not acting as agents of the federal government. Worcester was ordered to leave or be prosecuted. Worcester refused to leave and was rearrested in July. In September, he appeared for a state trial for his crime of living without a state permit on Indian lands. He was convicted, receiving a sentence of four years “at hard labor” at the prison in the state capital.

Samuel Worcester, "Cherokee Messenger"

Samuel Worcester, “Cherokee Messenger”

Worcester’s lawyer, William Wirt, appealed the case to the Supreme Court, which was heard in February, 1832.

In Worcester v. Georgia (31 U.S. 515), Marshall once again reviewed the history of “the right of discovery,” as he had done in previously, writing:

America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied, or that the discovery of either by the other should give the discoverer rights in the country discovered which annulled the preexisting rights of its ancient possessors. (emphasis added)”

There was, he observed, no evidence that the Cherokees had surrendered their remaining rights to the land. He reminded readers:

The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among the powers who are capable of making treaties.”

In short, he concluded:

The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress. The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the Government of the United States.

The act of the State of Georgia under which the plaintiff in error was prosecuted is consequently void, and the judgment a nullity.”

Unfortunately, the Supreme Court had no powers of enforcement, and both the State of Georgia and the President of the United States decided not only to ignore the ruling, but to vitiate its effect however and wherever possible.

Andrew Jackson in 1824, painting by Thomas Sully

Andrew Jackson in 1824, painting by Thomas Sully

February 28, 1823 – The Supreme Court Decides Johnson v. M’Intosh

On February 28, 1823, the U.S. Supreme Court handed down a decision in Johnson v. M’Intosh (21 U.S. 543).

This dispute over Indian land arose between two non-Indians; one claimed title by virtue of an Indian conveyance, and the other claimed title under a subsequent cession by the Indians to the U.S. followed by a conveyance from the U.S.

Chief Justice John Marshall, writing for the Court, addressed the nature of Indian conveyance, holding that aboriginal title was inalienable, and thus private citizens could not purchase land from Native Americans.

The case is most remarkable for its discussion of conquest, and for Marshall’s dicta pondering what it means for a “discoverer” to claim title to land already occupied by others.

Justice John J. Marshall, who served on the U.S. Supreme Court from 1801–1835

Justice John J. Marshall, who served on the U.S. Supreme Court from 1801–1835

In his opinion, Justice Marshall observed that at the time of the discovery of the continent by Europeans [note he qualifies his use of the word “discovery”]:

…the whole of the territory in the letters patent described, except a small district on James River, where a settlement of Europeans had previously been made, was held, occupied, and possessed in full sovereignty by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory and the absolute owners and proprietors of the soil and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever, and that in making settlements within this territory and in all the other parts of North America where settlements were made under the authority of the English government or by its subjects, the right of soil was previously obtained by purchase or conquest from the particular Indian tribe or nation by which the soil was claimed and held, or the consent of such tribe or nation was secured.”

He went on to observe that “On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire.”

Further, “The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence.”

They established a principle of “the right of acquisition,” whereby “discovery” gave title to “the government by whose subjects or by whose authority it was made against all other European governments.…” The European discovers then had the right to determine how to eliminate the Natives, by one means or another, from the land.

Justice Marshall puts a rather positive spin on the history of such negotiations by his statement that:

In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it.”

He stated that the history of America from its discovery to the present day proved that “our whole country been granted by the Crown while in the occupation of the Indians.”

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However, though the power to dismember regal governments was asserted and exercised by the Crown, the power to dismember proprietary governments was not claimed, and in some instances, even after the powers of government were revested in the Crown, the title of the proprietors to the soil was respected. He then poses the question: “Have the American states rejected or adopted this principle?”

According to the treaty that ended the Revolutionary War, Great Britain relinquished all claim not only to the government, but to the “propriety and territorial rights of the United States” whose boundaries were fixed in the second article. Thus, Marshall observes:

By this treaty the powers of government and the right to soil which had previously been in Great Britain passed definitively to these states. We had before taken possession of them by declaring independence, but neither the declaration of independence nor the treaty confirming it could give us more than that which we before possessed or to which Great Britain was before entitled.

The United States subsequently “has unequivocally acceded to that great and broad rule by which its civilized [sic] inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy either by purchase or by conquest, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.”

But then Marshall, by negation, addresses the philosophical territory he says he will not engage:

We will not enter into the controversy whether agriculturists, merchants, and manufacturers have a right on abstract principles to expel hunters from the territory they possess or to contract their limits. Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.”

He vitiates his own stance a bit however by offering an excuse to the European conquerers:

. . . It is not for the courts of this country to question the validity of this title or to sustain one which is incompatible with it.

Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.”

But from Marshall’s expression of his hopes for American behavior, he unfortunately reveals a quixotic outlook or at best, a utopian vision that would never hold up in the cold light of reality:

The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands and a wise policy requires that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers.”

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Once again though, he thinks it necessary to offer excuses:

But the tribes of Indians inhabiting this country were fierce savages whose occupation was war and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people was impossible because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country and relinquishing their pompous claims to it or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred.

Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighborhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed.”

He concludes:

That law which regulates and ought to regulate in general the relations between the conqueror and conquered was incapable of application to a people under such circumstances. The resort to some new and different rule better adapted to the actual state of things was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land and cannot be questioned.”

And thus the practice of colonialism won what might be an undeserved victory, even as Justice Marshall attempted (in vain, it would turn out) to make a bid for humane, decent behavior by the latecomers to the continent. 

Review of “The Second Amendment: A Biography” by Michael Waldman

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Michael Waldman is a professor of law at New York University. The Second Amendment: A Biography is an erudite and informative analysis of the history of the interpretation of that amendment by the Founding Fathers, the Supreme Court, and various legal scholars. Waldman states:

For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias….then in 2008, the U.S. Supreme Court upended two centuries of precedent. In…District of Columbia v. Heller [it] declared the Constitution confers a right to own a gun for self-defense in the home.”

On a literal level, this book is the story of how that change came about. On a “meta” level, it is a description of the process by which the constitution is interpreted, and how interpretations evolve over time. On a societal level, the content of this book is extremely important because of its ramifications on the power of the government, on any tier, to deal with the current spate of gun violence.

The Second Amendment has a curious grammatical construction:

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.”

How does the reference to “the militia” in the introductory phrase affect the interpretation of the amendment as a whole? Waldman’s historical analysis makes clear that the debates that preceded the adoption of the amendment were concerned with the role of the militia (what we would now call the National Guard), and had virtually nothing to say about an individual’s right “to keep and bear arms.” Moreover, the amendment says that the right to bear arms is that of the people (presumably acting in the context of the militia), not individuals. Ironically, it must be noted that the militias were composed of white males who were expected to supply their own weapons to participate in military training. Those men were not merely allowed to keep rifles; they were required to do so.

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In the late 18th century, most Americans feared the establishment of a standing army—that was what autocrats used to impinge on the liberty of their subjects. Local militias were generally thought to be adequate to protect the populace from insurrection or from marauding Native Americans. Remember that the Bill of Rights was adopted to curb the power of the federal government; it did not address the powers of the states. Views may have changed somewhat when in Shay’s Rebellion it was the local militia that had to be put down by the national army, led by George Washington.

Prior to the Civil War, most courts (with the exception of Kentucky’s) interpreted the scope of the amendment to be limited to the militia. A key was the phrase “bear arms” was understood to have a military meaning.

In the immediate aftermath of the Civil War, the Fourteenth Amendment was enacted, giving all persons the right to “equal protection” under the law. But that hardly mattered in the South. In 1872, the Louisiana gubernatorial race pitted a black candidate against a racist white Democrat. The results were contested, and members of both races formed rival militias. On Easter Sunday, the paramilitary White League captured and later massacred about 100 blacks. As was typical of the time, white state prosecutors saw no reason to bring criminal charges like murder against white defendants for killing blacks. But federal prosecutors charged numerous white defendants with violating the civil rights of the blacks, including the right to bear arms. Only three were convicted, and they appealed, ultimately reaching the U.S. Supreme Court in 1876. In U.S. v. Cruikshank, the Justices held that the Second Amendment (like the rest of the bill of Rights) applied only to Congress, and so no murdered blacks’ civil rights had been violated. The majority opinion neglected to mention that the case involved a massacre.

As a constitutional matter, the Cruikshank case ruled that the Second Amendment did not apply to the states. As a result, many states and local municipalities enacted gun control laws, some quite restrictive. In two cases 19th century cases, Presser v. Illinois and Miller v. Texas, the U.S. Supreme Court ruled that the Second Amendment did not have an individual right to carry weapons, although it did say that the states could not ban guns to the extent that it would interfere with the federal government’s military needs.

With the coming of the Prohibition Era, gun violence increased dramatically as rival gangs had to enforce their “contracts” without the aid of the courts. This led to the passage of the first federal gun legislation, the National Firearms Act of 1934, which heavily taxed machine guns and sawed-off shot guns and prohibited their transportation over state lines. The Supreme Court upheld the legislation in United States v. Miller. It noted that there was no evidence that a sawed-off shot gun “has some reasonable relationship to the preservation or efficiency of a well regulated militia [and so] we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

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Gun regulation increased after the assassinations of John F. Kennedy, Martin Luther King, and Robert Kennedy. Congress passed the Gun Control Act of 1968, which required licensing of gun dealers and banned the importation of military style weapons. Chief Justice Warren Burger, no flaming liberal, characterized the argument that the amendment created an individual’s right to own a gun as follows:

This has been the subject of one of the greatest pieces of fraud, I repeat the word “fraud,” on the American public by special interest groups that I have ever seen in my lifetime. Now just look at those words. There are only three lines to that amendment. A well regulated militia—if the militia, which was going to be the state army, was going to be well regulated, why shouldn’t 16 and 17 and 18 or any other age persons be regulated in the use of arms the way an automobile is regulated? It’s got to be registered, that you can’t just deal with at will.”

In Waldman’s words, “There was no more settled view in constitutional law than that the Second Amendment did not protect an individual right to own a gun.”

But then came the conservative revolution. The National Rifle Association organized single issue voters to oppose candidates who favored gun regulation. It took on an “apocalyptic, insurrectionist tone.” Wayne LaPierre and Charlton Heston riled up the rank and file. In 1959 60% of Americans favored banning handguns; that dropped to 41% by 1975, and all the way to 24% in 2012.

But more insidiously, a group of conservative law professors and lawyers began to write articles arguing that an originalist approach to constitutional interpretation established an individual right—this despite the fact that (as Waldman shows) history and nearly all historians were against them. They added gravitas to their arguments by citing each other, having little or no legal precedent to rely on. More importantly, the political composition of the Supreme Court became more conservative with the appointments of Scalia, Thomas, Roberts, and Alito.

Supreme Court Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts

Supreme Court Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts

The process culminated in 2008 with the Heller decision, authored by Scalia. Waldman gives a blistering criticism of that opinion. He then shows that Richard Posner, perhaps the most respected jurist (both a judge on the Seventh Circuit Court of Appeals and a University of Chicago law professor) in America gave an even more scathing analysis of the Heller opinion in Chicago v. McDonald , a case in which Posner felt bound by Heller. Waldman calls Posner’s opinion “a masterpiece of passive aggression.”

In some way, Heller may actually help gun control advocates. It has taken away the NRA’s argument that the government is trying to take away their guns. Heller says it can’t do that. What it may be able to do is reasonable, limited regulation. And courts seem willing to uphold such regulation. However, Waldman muses that “it is clear that the gun issue is not one of evidence-based public safety policy, but of culture.” He opines that “as a legal matter, Heller may create space for reasonable gun regulation. As a matter of politics and culture, though, it can only deepen polarization.”

Waldman’s concluding chapter contains some very interesting observations, the most striking of which I quote below:

A full scan of American history shows that the public, fully engaged, has made constitutional law every bit as much as jurists and lawyers….[T]he reason the Court has pronounced that limited right [individual gun ownership] is not because the Framers of the Second Amendment intended it to confer it. (They didn’t.) Nor is it because of a dictionary from 1730, or a state court judicial interpretation from 1830, or even a Supreme Court case from 1939. Rather, it is because the people today believe there is such a right. The country has evolved—the Constitution is living, as it were—and the widespread acceptance of some form of gun ownership is part of the way Americans think. Not then, now. Heller can be justified not as originalism, but as something more rooted in common sense: it reflected a popular consensus won by focused activists.”

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Evaluation: This book brings a lot of light to some issues about which one often finds only heat. It should be read by all citizens concerned with gun violence and gun rights.

Note: For a satiric could-have-almost-happened take on the issue, see this humorous imagined conversation between James Madison and Thomas Jefferson from The New Yorker.

Rating: 4/5 stars

Published by Simon & Schuster, 2014

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