On the Limits of Constitutional Interpretation

Last night, Eugene Volokh pointed out that figuring out how to apply the Second Amendment requires not only deciding how to treat a fundamental right but also what it means for that right to be "infringed."

A commenter discussing the gun show case writes, among other things,

So, along with Chicago and DC trying to keep poor people from exercising their “fundamental right” by pricing permits/licenses/training/registration out of their reach, now California is trying to reduce the Second Amendment to a “want” instead of a “RIGHT”. The standard of review should be “SHALL NOT BE INFRINGED”.

The trouble is that “shall not be infringed” doesn’t resolve much until we figure out what it means to “infringe” a right. Is it an infringement of a right to bear arms to say that you should sell guns on your property (or on the property of someone who agrees to let you sell them), but that you can’t sell them on government property? How about to say that you can’t even possess them on government property? What if you are free to possess many kinds of guns, but not certain other kinds of guns that are very similar to them? What if you have to pay a relatively small fee to get a license to have a gun (which the government must give you once you pay the fee), or to organize a demonstration, or to get married?

Not surprisingly, the Volokh commentariat jumped into the fray, a significant portion arguing (I'm paraphrasing, not quoting) that anything limiting possession or sale or ability to use  weaponry "infringes," on keeping and bearing and is, therefore, flat out unconstitutional, by god.  (That's ability to use, not use itself - nobody suggested that murder  or bank robbery or other offense committed with a gun was constitutionally protected, and at least one commenter pointed out that such a reading of the Second Amendment would obviously be wrong.)

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An Aside

Shortly before Volokh's post, Jay Root reported from Austin for the AP that if you've got a gun permit, you can get into the Texas Capital without having to pass through security.  As lobbyists and others with regular business in the Capital sign up for gun permits, gun control advocates and out-of-state tourists shake their heads.

That lawmakers would take the trouble to install magnetometers and then allow weapons inside has drawn criticism from gun-control advocates, including the Brady Washington-based Brady Campaign to Prevent Gun Violence, which called the policy "ludicrous." Some tourists also were perplexed by the new procedures.

"Where's the security come from if you can still get in with a gun?" asked Canadian tourist Clyde Ducharme, who went through the metal detectors one recent morning.

My friend Anna D, who pointed me to the story, wished Molly Ivins were alive so that we could get her take on it.

End Aside

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Meanwhile, the lead editorial in today's Times says that the Senators who vote against Elena Kagan's nomination won't be voting against her or against Obama but will really be taking on a broad view of the government itself - and in particular of the Commerce Clause.

The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a “substantial effect” on interstate commerce, even if they are not directly business-related. 

So, the Times opines,

Make no mistake that such a vote is simply about her, or about President Obama. A vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century, and some of the best things that lie ahead. 

Maybe.

I've talked about the Second Amendment before.   The short version:  The idea is to ensure that the people have the means to engage successfully in violent revolution.  It's the provision necessary to satisfy Jefferson's belief that every 20 years or so, there needed be a rebellion to refresh the "tree of liberty . . . with the blood of patriots & tyrants."  That is, the right to bear arms is the right to bear them against the government.  It has nothing to do with self-defense against criminals who would rob or rape or pillage or against ravaging native Americans or against grizzly bears.  (The hard question is the application of the Amendment today when the means necessary for rebellion might include nuclear weaponry or other WMDs.  The framers didn't contemplate our current technology of destruction.  It's not at all clear to me what they'd have thought if they did.)

I haven't talked much about the Commerce Clause (and when I did, it was also a post about the Second Amendment), but it seems to me evident that it was intended to give the government (actually Congress) power to regulate, er, commerce, which is not the same as the power to regulate anything which might happen to have some tangential relationship to commerce.

All that's theory.

In practice, I think it follows that the Second Amendment does not prohibit government regulation of the sporting possession and use of arms or for purposes of individual self-defense.  Concealed carry can, I think, probably be prohibited except in aid of insurrection.  But you can have a tank in the back yard.  That may be bizarre, but it's what follows if you believe that what the framers said and had in mind counts.  I hate guns and wish the populace disarmed, but that doesn't strike me as a Constitutional option.

I've got a related problem with the Commerce Clause.  I agree with the Times that much good has been done in reliance on an expansive view of the Clause.  But the Constitution doesn't say that Congress can do what it likes so long as it is both socially desirable (like we could agree about what those things might be) and can find some tenuous connection to commerce.  Does the Endangered Species Act really have a relation to interstate commerce that's more than a statutory fiction?

(Note that I'm not weighing in here on whether the health care law or the bailout of AIG or whatever is or is not constitutional.  Nor, even, on whether those things are good policy choices.)

This is about how to view the Constitution.

And the problem with the Constitution is that it sits out there as a monument.  We worship it.  But we never quite know what to do with it.  Is it a contract, plain and simple, or is it a combination of contract and set of guidelines.  Is it to be read narrowly or broadly?  When there's a conflict, will words matter or intentions?  And how do you determine intentions, anyway?

The supposed strict constructionists on the Court ignore the Ninth Amendment because it doesn't specify what it covers.  Libertarians and civil libertarians, on the other hand, think it's essential, though they may disagree about its content.  Nobody can really agree about how the Free Exercise and Establishment Clauses of the First Amendment co-exist.  And none of that is much of a guidepost.

But we're still faced with that fundamental interpretive question: Is the Constitution to be viewed as primarily saying what government can do or what it cannot?  Are the constraints on government to be read broadly or narrowly?

The problem and the solution both is that it's a limited government with an expansive reach.  A goal, set forth in the Preamble, is to "secure the Blessings of Liberty to ourselves and our Posterity."  Now, we can argue a lot about what those "blessings" are.  But when government starts telling you what to do, it's pretty clearly interfering with them.  When government locks you up (whether the lock up is criminal or civil), it's pretty clearly interfering with them.  When government tells you what to think or to believe, it's pretty clearly interfering with them.

If you're with me on that, then you view the Constitution's limitations on federal government action as strict.  But there's another piece of it, too.  For the civil war amendments (the Thirteenth, Fourteenth, and Fifteenth) limit what the States can do.  And what individuals can do.  Because to ensure liberty for one means that there must be restraints on liberty for others.

And the Fourteenth, in particular gives Congress "power to enforce, by appropriate legislation, the provisions of this article."  Which makes the Constitution's authorization of federal government action expansive.  But still, within limits.

The Second Amendment, bless it's ugly (from my point of view) heart, puts a real if bizarre limit on the government's ability to disarm the populace.  And the Commerce Clause, by god, gives the government a right to regulate commerce, but not those things which might, somehow, by some attenuated reasoning, have some tangential relationship to commerce.

I may not like those results, but that's not the proper test of what's constitutional.

Though in a better world, it might be.

Musing

Just some random thoughts here.  I'm not sure how much I actually believe all I wrote.  But I might.  Or not.

Maybe it began when I reconsidered my position and concluded that although I hate guns and as a matter of policy think they should be banned completely or their ownership severely restricted, the Second Amendment contained an individual right to bear arms.  Maybe it was later, when although my hatred of guns and view of wise public policy remained as they were, I thought some more about it and determined that the purpose of the Second Amendment right had nothing to do with self-defense against bad guys or wild animals or for hunting for food or sport (and what follows, which is that insofar as the right is demanded for those purposes it can be severely limited without offending the Constitution).  Rather, the purpose was to ensure that the people have the means of effecting violent revolution against the government.  (There are consequences to that conclusion about which I haven't yet satisfied myself.)

Or maybe it was when I looked in vain for the constitutional underpinnings of the administrative state.  Or first noticed that the Commerce Clause does not seem to say that anything that can be thought to have some marginal relationship to interstate commerce falls within the ambit of the Constitution's delegation of authority to Congress

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

And if the Necessary and Proper Clause really permits Congress to do pretty much whatever it wants, then we haven't just abandoned the  idea of a government of enumerated powers but we've abandoned the idea of the Rule of Law (uppercase intentional) because there would be no limit.

Or maybe it was when I acknowledged that ohmygodScalia'sright that a living Constitution does mean that the Constitution is this week whatever 5 members of the Court happen to think it means, and will mean something different whenever the composition of the Court (or the views of a sufficient number of members) changes.  (Of course, the same is true for Scalia's preferred Constitution - an embalmed one - since it, too, will be subject to constant reinterpretation as the courts and the Court try to figure out what it means, but that's not my issue today.)

Or maybe it was just when I finally admitted to myself that if you believe in the Constitution as the fundamental law of the land, whether you like all its terms or not, then you have to accept as fundamental the parts you don't like just as much as you have to accept the parts you do.

And so I find myself (and this isn't particularly new, it's just that I'm using it as the set-up here) a civil libertarian who more often than many who so define themselves tends toward the libertarian.

That requires some clarification, I think.  

Libertarians (and yes, I know I'm oversimplifying to the point where I'm approaching, but I don't think reaching, misrepresentation) tend to be political conservatives.  They believe not merely in limited government but in small government.  They have a commitment to the free market as not only constitutionally endorsed but as a good thing in and of itself.  If pressed, they'd say that the most important provisions of the Bill of Rights are the 2nd, 4th (and maybe 9th and 10th Amendments). At the distant margins, they expect any day that the administration will admit it's but a stalking horse for world domination by the UN, which itself will be run by some conglomerated version of state socialism on the line of Stalinist Russia except intent on ethnic cleansing of white folk.

Civil libertarians (to oversimplify with the same reach) tend to be liberals.  They believe in government, big government in fact, but think there are a few areas in which the government ought not meddle.  They're not terribly fond of the free market, think that government should regulate the hell out of it.  If pressed, they'd point to the 1st (though perhaps not the Free Exercise Clause), along with the 14th (and also maybe the 9th and 10th) as the most important of the Amendments.  At the distant margins, they really do think that the administration is a stalking horse for a resurgent Nazi party intent on ethnic cleansing of non-white folk.

Drop the distant margins people (there are nuts everywhere after all) and you find that there are real differences but also serious points of contact between libertarians and civil libertarians.

Again, this is all preface.  I'm a fan of government.  I'm an opponent of the administrative state.  (Those don't strike me as contradictory positiions.)  I don't want the government telling me (or anyone else) what to think or what to do with our bodies.  I have policy, political, and also constitutional questions about the government's handouts to the financial services industry and to GM and Chrysler, though I'm bothered less by the latter than the former.  I'm no enthusiast of the free market and I don't think the Constitution mandates it, though it certainly puts some limits on government regulation.  I'm a free speech absolutist.  Enough.  The details don't really matter here.

What got me rolling on this, are Rand Paul's comments on the Civil Rights Act of 1964, Volokh Conspirator David Bernstein's response/attack to "Bruce Bartlett's Attack on Libertarianism," and David Rittger's piece at the Cato@Liberty blog warning that US v. Comstock provides a blueprint for efforts to deny Constitutional protections to those suspected of being terrorists (he's not the first to discuss it).

And what I found myself thinking was two things.  First, I'm in complete agreement with what Rittger has to say.  Second, while I find Bernstein's discussion interesting and informative, I really can't get past his claim (essentially one Rand Paul couldn't quite bring himself to state, but then he's running for office now statewide, not just within a political party) that

Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains.

I wasn't brought up short by the claim that most libertarians believe that private discrimination should be legal.  I was brought up short by the idea that it's something of a mainstream belief (insofar as the libertarian perspective can be considered mainstream, and I think that with an even moderately broad definition of "mainstream," it can.

Anyway, so what I tried to do, because I'm finding more and more that I really don't trust the idea of government to do much of anything, is figure out where the rub is between me and libertarian thought (as Bernstein presents it, anyhow) on private discrimination.  And what it came to is that I'm no fan of free markets.  My objection isn't to the idea that the owner of a business ought to have some right to decide how the business works.  It's that when I look at the free market, what I see isn't the mom and pop grocery.  What I see is Wal-Mart and Best Buy and Barnes & Noble and Amazon driving the independent (i.e., mom & pop) out of business.

And while I'm offended if mom & pop want to discriminate (which they too often do/did), I guess I see that mostly as a personal choice that they can sometimes be coerced out of by concerted action (boycots, sit-ins, general suasion) although sometimes not, but gee, that's mom & pop.  And that's how they want to run their business, and as long as they don't have monopoly power or jim crow laws backing them, I guess that's their business.

But that's mom & pop.

I'm no economist, but you don't have to be to notice that big business drives out small and that Adam Smith's world wasn't exactly a bagatelle for the laborers.  But that's sort of a side question.

One of the commenters on Bernstein's piece complained about the libertarian fetish over property rights.  Bernstein responded without actually addressing the point, but it's all connected and deserved more of an answer than he offered.  Because if you want government to stay out of private business, you're either saying that the free market is a good thing in absolute terms or that you don't really care whether it's a good thing - government meddling is a bad thing.  And tI suppose that's an intellectually defensible position, but I don't see it.  And more to the point, I don't see the Constitution obliging it unless the only thing that "[t]o regulate Commerce . . . among the several States means" is that states can't impose tariffs on goods from other states without federal approval.  To put that another way, unless the Commerce Clause is understood to be only the Dormant Commerce Clause, which is really an inferred Clause rather than an enumerated one, the Constitution may limit what government can do about private enterprise and free markets (though I think the Civil War Amendments really do say something about discrimination), but it simply doesn't strip government of authority.

Although how you get authorization for the EEOC, the NLRB, the SEC, the FBI, and the NSA, that's a whole different question.