Of rights and powers

Summer 2007 Bulletin Cover

Summer 2007 Bulletin Cover

In response to the article “Lawyers, Guns and Money” (Summer 2007), I write to suggest that the meaning of the Second Amendment can best be determined by carefully reading the words the framers used in drafting the Constitution. The framers considered carefully the structure of government they were creating and chose with care words they believed best expressed their intent. It therefore is essential that their words be read with the same thoughtful attention with which they were written.

The preamble to the Constitution recites that the people ordained and established the Constitution; the first three articles define the powers the people delegated to the national government and create institutions for their exercise; and the 10th Amendment says that all powers not delegated to the United States, or prohibited to the states, are reserved for the states or the people. Thus, in discussing government, the framers spoke exclusively in terms of power—its delegation, its vesting, its exercise and its limitations.

The Bill of Rights, on the other hand, speaks exclusively of rights. The First, Second, Fourth, Sixth and Seventh Amendments enumerate particular rights retained by the people: to assemble and petition, be secure against unreasonable searches and seizures, enjoy the right of trial by jury, keep and bear arms, etc.; the Third, Fifth and Eighth protect certain individual rights against abuse by government of its delegated powers; and the Ninth provides that the enumeration of these rights shall not be construed to deny or disparage others retained by the people. Each of these rights is retained by, not granted to, the people. Each is protected against denial, disparagement or infringement by government, not derived from government. Each is personal, not communal or collective.

This use of language is both clear and purposeful. People have rights; government has only powers. The people define and delimit the powers of government; government does not define and delimit the rights of the people. Rights cannot be restricted by governmental action except as required for the exercise of a delegated power.

Read in its proper context, the meaning of the Second Amendment becomes clear. It simply acknowledges the right of the people to keep and bear arms and the power of the states to maintain militias. The amendment does not grant the right to keep and bear arms; it simply enumerates that right as one among the many retained by the people. Nor does it empower states to maintain militias; it simply implies that the power is not denied.

The fact that the amendment refers to both a right retained by the people and a power presumably held by state government does not transfer the right from the people to the state or make the people’s exercise of the right dependent on the state’s exercise of its power. Nor does the state’s exercise of its militia power depend on the people’s exercise of their right to keep and bear arms. The right and the power remain separate and distinct—the right is reserved to the people; the power is assumed to be exercised by the state.

It therefore follows that the right the amendment reserves to the people is—like all the other rights reserved in the Bill of Rights—an individual right, not a right of the state; that the right is separate from the militia power that the amendment presumes each state will have and will exercise; and that the right cannot be limited by or made dependent on the state’s exercise of the militia power.

Guns and violent crime

Laywers, Guns and Money

Laywers, Guns and Money

It is unfortunate that your otherwise excellent article “Lawyers, Guns and Money” includes, without any sort of challenge, the irresponsible statement by NRA President Sandra Froman ’74: “Statistically, the parts of the country with the greatest number of firearms have the lowest rates of violent crime with guns.” In fact, recent studies by Matthew Miller and colleagues at the Harvard School of Public Health have demonstrated a significant correlation between levels of gun ownership and rates of both homicide and suicide. (The Deep South and the Mountain West, which lead the nation in levels of gun ownership, also have the highest rates of homicide and suicide, respectively.) There is a similar correlation between homicide rates and the presence of guns in the home. See Epidemiology, September 2002; American Journal of Public Health, December 2002; The New York Times, Jan. 23, 2007.

Pledging allegiance to creationism

Tenuous though the connection may be, I seize on the article about the First Amendment in a philosophical context [“In the Classroom,” Summer 2007] to highlight the fact that many, probably most, public school biology classes in Arizona (surely in other states as well) teach creationism and evolution as two theories of equal scientific standing. The words “under God” in the pledge of allegiance reinforce this mischief by indicating to pledge-reciters that their government agrees with the creationists, at least with respect to the claim of entitlement to classroom treatment on a par with that accorded evolution. Perhaps the pledge language goes even further, telling all who recite it that their government accepts creationism as correctly describing the earth’s origins. This is not just a separation of church and state matter but one of corrupting public education. In what philosophical or cultural context should the constitutionality of the words “under God” in the pledge of allegiance be considered?

Unburdened by facts

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Credit: Gary Sawyer

The Harvard Law Bulletin (Summer 2007) quotes from a letter that Professor Laurence Tribe sent to Rep. John Conyers in 2006 concerning President Bush’s Terrorist Surveillance Program: “[T]he presidential program of surveillance at issue here is a violation of the separation of powers—as grave an abuse of executive authority as I can recall ever having studied.”

When I went to law school—admittedly a long time ago—our teachers hammered into us the notion that one could not understand a legal issue without understanding the facts that underlie it. Hence the use of the case system of legal teaching; hence the common classroom demand that one state the facts of the case. By contrast, Professor Tribe’s sweeping, unnuanced, unmeasured assertion of the unconstitutionality of the TSP is unburdened by any facts. And that is a fact that I know.

Editor’s note: Professor Tribe’s statement was part of a long letter submitted to Rep. John Conyers and the House Judiciary Committee, and it included a lengthy factual recitation in support of his argument that the warrantless surveillance program was unconstitutional. Because of space limitations, the Bulletin did not include this material in the article. The full text of the letter can be found online in PDF format.

Another view on class actions and arbitration clauses

The Summer 2007 issue included a nice tribute to my classmate Paul Bland and his work at Public Justice in opposition to arbitration. I have nothing but praise for Paul, who is an excellent lawyer (I have been on the opposite side in litigation) and a fine person. But whether or not his anti-arbitration cause is worthy, and pro-consumer, is a different issue. Let’s be clear on a few points. Public Justice was not organized by and for consumers (all of us are consumers; none of us was polled); it is a trade group for the plaintiff bar. Public Justice opposes not only “abusive” arbitration clauses but all arbitration, which interferes with class-action lawyers’ ability to leverage even a flimsy claim for a large recovery—including recoveries for consumers in which 95 percent or more of the class members ignore the recovery, while the class lawyers congratulate themselves for their “pro-consumer” victory on the way to the bank. I know that some lawyers believe that all class actions serve the public interest and that any arbitration clause that blocks class actions must be bad. There is, however, an opposing view.

I have observed class-action settlements, purportedly solving a consumer problem, in which class counsel received millions of dollars while less than 5 percent, and even less than 1 percent, of the class cared enough or thought enough about the resolution to make a claim for the class benefit. By contrast, I have observed an arbitration process that provided prompt and full recovery to consumers who brought a claim. Which process is pro-consumer?

Looks that improve with age

Congratulations on a great job in making the Harvard Law Bulletin eye-popping, reader-friendly! A pleasure to peruse it. I remember when the Bulletin wasn’t much more than “mimeographed” copy on slick paper.