The recent Heller III decision from the D.C. Circuit Court of Appeals was not completely unanimous; Judge Karen LeCraft Henderson dissented from the decision authored by Judge Douglas Ginsburg, stating that she would have upheld all elements of the D.C. law as being constitutional. That’s not too surprising. Judge Henderson, who was appointed to the Court of Appeals in 1990 by then-President George H.W. Bush, has had a history of being unfriendly to the right to keep and bear arms. When the original Heller case came before her in 2007 . . .
(at the time, it was styled Shelley Parker et al v. District of Columbia–before every Appellant except Dick Heller had their case dismissed for lack of standing,) Judge Henderson dissented, arguing that the Second Amendment could not possibly apply to the District of Columbia, because the District wasn’t a state. That’s a rather novel interpretation, given that prior to the ratification of the Fourteenth Amendment, the entirety of the Bill of Rights was intended to apply to the federal government, and that the D.C. government’s legal authority comes exclusively from the federal government itself.
In sum: Judge Henderson is not exactly out in front defending right to keep and bear arms. Which makes the first part of her dissent a little eyebrow-raising, where she implicitly trashes the idea that a lot of recent academic studies on gun control are worth a damn.
Firearm policy is a “complex and dynamic” issue implicating “vast amounts of data” that the legislature is “far better equipped” to gather and analyze. Such “information can be difficult to obtain and the impact of certain conduct difficult to assess,” due to the different challenges facing different jurisdictions and the multiple factors that contribute to gun violence. Indeed, the data that does exist is either incomplete or influenced by partisanship: (Citations omitted.)
Judge Henderson then goes on to quote rather extensively the 2015 book American Political Culture: An Encyclopedia on the subject.
Few topics in the realm of U.S. justice and politics elicit a more polarizing response than that of gun control. . . . At the center of the debate is the fundamental question of whether firearms, specifically those owned and wielded by private citizens, do more harm than good in deterring violent crime. Despite intense scrutiny from so many fields, however, scholars have reached few solid conclusions to date. The answers to even basic questions (who is victimized, how many are victimized, and at what cost are they victimized) are fiercely disputed, resulting in a nebulous yet hotly contested understanding of the interplay between guns and crime. . . . Data exists to support both sides; the difficulty lies in separating partisanship and underlying attitudes from empirical observation and objective analysis. In truth, the isolation of such objectivity may be a logical impossibility.
“Logical impossibility”. You don’t say.
There has been a push toward publication of studies with an ideological anti-gun tilt in academic journals of questionable veracity, as has been reported in TTAG and other venues. Institutions such as the Johns Hopkins Bloomberg School of Public Health’s Center for Gun Policy and Research (gee, I wonder where they get their funding?) have had their academic minions churning out anti-gun screeds for years, which are then duly parroted by Bloomberg-funded propaganda outlets like The Trace, and broadcast by a credulous (complicit?) media.
Given that most of the gun control studies we’ve been seeing lately have been almost uniformly arguing against the right to keep and bear arms, it is gratifying to see that Judge Henderson, even though she apparently is unwilling to protect the Bill of Rights when it comes right down to it, still is intellectually honest enough to acknowledge that the plethora of anti-gun “science” we’ve been seeing lately are all just so much humbug.
In other news – Judge Henderson isn’t the only one playing against type in the Heller III decision. Judge Patricia Millett — appointed to the Court of Appeals by President Obama in 2013 — joined Judge Ginsburg’s opinion striking down several parts of the District’s firearms laws. In fact, according to Newsbusters.com, Millett was one of the judges for whom Democrats nuked the filibuster to ensure her confirmation to the bench.
Perhaps this shouldn’t be a surprise. According to her bio, Judge Millett holds a “second degree black belt in Tae Kwon Do.” I wonder if her affinity for self defense might have influenced her attitude at all?
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.
Biased studies used to promote an agenda? No Way!! Not possible. Especially true for anything related to public safety.
These decisions shouldn’t be about data they should be about how I interpret the Constitution
Right. More than that…
“At the center of the debate is the fundamental question of whether firearms, specifically those owned and wielded by private citizens, do more harm than good“
What does that have to do with anything? As RF says often, our Rights aren’t subject to arguments based in social utility. Whether we’re better off or worse off because of the 2nd A doesn’t matter. It’s our Right, net benefit or net harm. Not to mention the fact that a benefit like “discouraging government tyranny” is entirely impossible to quantify. In fact, many of the assumed benefits of an armed population are the prevention of various bad things, and if they don’t happen then you don’t have statistics and, as always, “you can’t prove a negative.” The anti-2A side is on better footing because when bad things happen with guns they have numbers and data. When bad things don’t happen thanks to guns preventing them, nobody knows about it.
“Whether we’re better off or worse off because of the 2nd A doesn’t matter. It’s our Right, net benefit or net harm.” This statement is TRUE; assuming that SCOTUS has the slightest inclination to believe it. To what degree do we have confidence that SCOTUS is so inclined?
Congress and State legislatures will infringe at pleasure. It all depends on what a majority of the legislative body believes that “infringe” means. Soon, the whole discussion is lost in the standard to be used and the social utility found under that standard.
Ultimately, PotG, the 2A means no more than what a super majority of voters intend to enforce upon their legislators. If gun-owners don’t go to the polls and out-vote non-gun-owners prepared to believe it (what passes for) “common-sense” “reasonable” gun-controls then the legislators they elect will exercise their “ground-swell” mandate to infringe at will.
Beware of mere parchment barriers. Without the support of the People they aren’t worth the paper they are written on.
First off utilitarian arguments for other human rights like speech or reproductive rights would not be accepted as easy by courts. Secondly when you factor in deaths by geneocide which are much less likely for an armed population, ( the only us geneocide was commited towards native Americans who where denied. Access to arms) the numbers are clearly on the 2a side.
If the courts were doing their jobs then they would discount utilitarian arguments, which is what I think you are suggesting. Perhaps they would consider utility in conjunction with whether a control rose to the level of an infringement; but, not whether there is utility in keeping or bearing arms.
Our difficulty is that the courts don’t want to do their jobs. They want to decide cases according to their preconceived notions; and then, the rationale is chosen from the available candidates. If they are interested in the security of a free state they may cite genocide; if they are interested in the security of a tyrannical state they will cite the Moms who Demand Action.
Respect for the 2A (or any other right) is to be found at the seat of sovereignty; i.e., with the People themselves. We ought to focus our task on convincing voters that there is personal utility for them in having neighbors who keep and bear arms to defend their block in case of emergency and who may defend them if they are attacked in our presence. While our neighbor may not elect to bear arms himself he ought to recognize the utility of some mother, co-ed, widow, invalid (i.e., sympathetic poster children) to keep and bear to defend themselves from predators.
Utility is usually some balance. We must convince our neighbors that law-abiding people keep and bear responsibly. It is virtually unheard of that a 2A-able person commits a gun crime or injures another person by errant fire.
Finally, we need to convince our neighbors that supply-side gun controls are futile and counterproductive. If they are interested in reducing violent crime they have to concentrate on putting criminals in prison and keeping them there. Enforce felon-in-posession.
Actually what she did was call out her own intellectual dishonesty: If studies are biased, there is no compelling evidence these laws advance a purpose, and therefore must be struck until there is.
No, what she is actually saying is that such laws should be reviewed under a “rational basis” test, the lowest level of constitutional scrutiny, and that these complicated and complex questions as to which controls are appropriate in any given locale are a legislative, not judicial function. In short, she says that Heller I was wrongly decided.
It read to me that she was saying “don’t ask ME, I’m dumb as a post!”
Only someone with political dogma totally controlling their brain, (or a screaming liberal) can find gay marriage in the 14th amendment but can’t find the right to keep and bear arms in the 2nd amendment.
Liberals aren’t always ‘screaming’ here’s a patch of profound silence for y’all:
http://www.breitbart.com/texas/2015/09/20/u-s-house-votes-make-killing-babies-born-alive-abortion-crime/
A baby born alive is a person. Killing it is therefore murder. Why a new law, just to avoid enforcing a very old one? Because the effort is not serious, just like a lot of common sense gun control, it is designed to incite the weak-minded into demanding more and more laws, restricting constitutional freedoms more and more. The situations and the tactics are the same, a lot of people tend to close their eyes about one or the other, rarely both. I object to both, mainly because of the clear and deliberate misleading of the public. If such a thing happened, and you have evidence, why was it not prosecuted? Whether a prohibited person attempting to purchase a firearm, or a baby born alive and then killed, the question is precisely the same. “Why is this being used to advance a political agenda, instead of being prosecuted as a crime?”
I have not yet found marriage, of any sort, anywhere in the constitution. And if a power is not specifically granted to the Federal government, does it not fall to the states, or to the people? Just sayin’. We need to get government out of marriage, the federal government first, then the states.
Larry, the majority of what the Government does is outside the Constitution, marriage being one of the lesser excursions.
Sorry, Johannes, I disagree with your analysis completely. What she is saying is that the courts are not the place to hash out which of these conflicting studies should be believed or adopted, but instead the question is innately a Legislative fact-finding exercise, based on the individual circumstances of each state of locale; these determinations at most should be reviewed by the courts under a substantial evidence standard, thereby giving great deference to legislative determinations. No, I think she is acting true to form, and as some have suggested, offered a slap in the face to the Supreme Court’s analysis and method of application dictated by Heller. Under this standard, the existence of some rational evidence to support the legislative determination is a sufficient basis for the courts to uphold the law. The Second amendment is simply not a right worth insisting upon, if it is contrary to the interest of the public and public safety.
I agree in part. She is saying: (1) the studies are garbage and therefore (2) courts shouldn’t question the legislature’s judgment.
But (2) doesn’t necessarily follow (1).
We could just as easily argue (1) the studies are garbage, and (2) the studies thenselves are irrelevant, the rght should not be infringed even if the studies arer totally accurate.
I just found her willingness to trash the studies interesting, given that that is not really what the antigun left has been doing up till now. Justice Breyer’s dissent in the first Heller case was full of credulous references to statistics on violence, for instance.
I also confess to being a little sarcastic in the lauding Judge Ginsburg….
I don’t think that recognizing the studies as biased equates with “trashing” them, as opposed to reflecting competing ideologies, and from that premise concluding that the courts have no business making ideological determinations. Kind of like saying, “Well, all of this is in conflict, therefore it is for the Legislature to decide.”I think that you and I agree that this is classic “rational basis” analysis. The problem with her position is that it puts up individual right for a vote with no constitutional protection whatsoever. As I said, the second is a right not worth insisting upon if it, in the opinion of the majority of a legislative body, threatens public safety. Kind of like what Jeb Bush has been saying.
Hi Mark,
Yes, I get what she’s trying to do here, but…How is calling a scientific study “biased” not, in some sense, trashing it?
And let’s not forget, when it comes to the constitution, the only “legislative body” extant is the whole of the American people, not 545 dickwads in Washington, DC. Their “opinion” is completely meaningless. As is what Jeb Bush thinks, he is a private citizen and his opinion carries no more weight than my own. Which is not likely to change, BTW.
The judicial history of the US is such that no one can rely upon judges to secure the rights of the People nor to restrain legislators nor executives. They will take cases on appeal when they wish to legislate from the bench and will decline to do so when they like what legislators are doing.
The destiny of jurisprudence has been laid by the neglect of voters. We elect the President, and governors, who appoint judges. We elect Senators who conform these judges. They serve a lifetime in the Federal judiciary and for long terms at the State level. We PotG will wait in vain for SCOTUS to secure the RKBA.
Our rights – if they are to survive at all – must be defended by our legislators. This is hard work; it’s political, and all politics is local. Legislators will do what they are compelled to do by their constituents. Unless our neighbors are prepared to stand-up for our right to KBA our legislators will dilute them to meaningless levels.
How do we persuade our neighbors to support the RKBA? Shall we persuade them that God has given His PotG this right? Shall we persuade them that the founding generation ratified the 2A guaranteeing us this right? That’s a hard program to sell to a secular society that no longer thinks about constitutionalism.
How about persuading our neighbors that it is in their personal interest that we are there to maintain order when the cops can’t respond to every emergency? How about the right of self-defense of the widow, co-ed, young mother or elderly person who would otherwise be the lawful prey of thugs and meth-heads? Are these neighbors really convinced that gun control will raise the black-market price of stolen guns by even $1?
We will defeat gun control when we convince our neighbors of the social-utility of guns and the futility of supply-side gun-control. At that juncture, politicians can’t run on gun-control and our legislator friends will start repealing laws.
“How do we persuade our neighbors to support the RKBA?”
South Central LA was persuaded during the Rodney King riots of the value of armed defense.
The same during the Fergusen riots and the ‘Nawlins residents during Katrina.
Being armed when society breaks down is the most direct and compelling argument there is for the RTKBA. I.E., Ray Charles could see that.
Goes along with the saying “A Conservative is a Liberal who was violently mugged”.
Does it resonate with you that Madams Katrina and Sandy make for for more immediate, sympathetic and compelling social-utility arguments as compared to some ink on parchment left over from the 18th century?
Judge Henderson . . . still is intellectually honest enough to acknowledge that the plethora of anti-gun “science” we’ve been seeing lately are all just so much humbug.”
Actually, she was trashing both sides for the sole and exclusive purpose of throwing out the baby with the bathwater. That way, she can wear the mantle of non-partisanship while being as anti-gun and intellectually dishonest as hell.
Great point Ralph.
Here’s a thought. How about Congress regulating the courts to apply strict scrutiny to Second Amendment cases? They do have that power and the President does not have a veto.
Great article Mr Paulson.
I’ve read elsewhere that Judge Millet is considered intellectually honest to her oath to the law, rather than the politics of who appointed her (Obama). Her impressive background would tend to support such rigor and character:
(from the NewsBusters link)…”was appointed to the United States Court of Appeals on December 10, 2013. She graduated from the University of Illinois at Urbana-Champaign (summa cum laude) in 1985 and from Harvard Law School (magna cum laude) in 1988. After working in a private law firm (Miller & Chevalier) for two years, she clerked for Judge Thomas Tang of the United States Court of Appeals for the Ninth Circuit. Following her clerkship, she worked for four years on the Appellate Staff of the Civil Division in the United States Department of Justice and for eleven years as an Assistant in the Office of the Solicitor General. In September 2007, she became a partner leading the Supreme Court and appellate practices at Akin Gump Strauss Hauer & Feld LLP. She has argued 32 cases before the U.S. Supreme Court and holds a second degree black belt in Tae Kwon Do. She is married and has two children.
Judge Henderson has used the same fantasical imaginary status for DC not obliged to follow federal laws, as far back as 2007 in her dissent on Parker:
“Judge Henderson’s dissent argued that the Second Amendment is not an individual right and, even if it were, it would not apply to the District of Columbia, because the Second Amendment refers to “the security of a free State” and D.C. is not a state.” – Dave Kopel, writing in America’s 1st Freedom, July 2007
Here is Eugene Volokhs take-down on Judge Henderson’s version of her oath to the law, errrr…I mean, to making things up. –
““State” simply meant country; and “free” almost always meant free
from despotism, rather than from some other country, and never from some
larger entity in a federal structure. That is how the phrase was used in the
sources that the Framers read. And there is no reason to think that the
Framers departed from this well-established meaning, and used the phrase
to mean something different from what it meant to Blackstone, Montesquieu,
the Continental Congress, Madison, Adams, or others.”
http://www2.law.ucla.edu/volokh/freestate.pdf
The judge must be stupid because she does not understand “shall not infringe”. Furthermore the right to self defense is an absolute. Thirdly I bet she has a CCW.
No double standards put DC politicians on Obamacare and SS
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