Passing Bull 31  The Parallel Lines of Scalia and Cruz


Ultimately our ability to live together as a people depends on enough people behaving reasonably.  If enough people are unreasonable, we will fall apart.  Put differently, we have to be able to take enough people on faith or trust for our system to work.  People who abuse that faith or trust may bring us all undone.

The American political system appears to be falling apart for just that reason.  The vulgar bigotry of Donald Trump is just the apotheosis of the drift into unreason and a failure of trust.  Too many people reject the system, and too many players do not follow its rules.

We see American politics now as disfigured by the following flaws:

….a dogged pursuit of ideological assertions and an adherence to outmoded catch-cries (misplaced zeal); an inability to accept that another view may have equal weight or at least some merit (intolerance and over-confidence); a real and not just an apparent indifference to the suffering of others; a failure of governance; arrogance, and personal rudeness, in high office; and a determination not to be affected by what the rest of the world might think (provincialism).  These are the symptoms of the American malaise; what used to be called the Ugly American. 

I have put those words in italics for reasons I will give.

The Supreme Court of the U S is far, far more politicised than any similar court elsewhere in the western world.  It makes Australian and English lawyers very nervous.  One of its most political members was the late Antonin Scalia.  Extracts from a note I wrote on his judgment on guns in Heller follows this note.  You will see that the words I have quoted above about the malaise in American politics comes from that note.  A nation is in deep trouble when its judiciary suffers from the same disease as government.  Very deep trouble.

Apart from the evidence of Heller, there are two grounds for saying that Scalia was not just a political force on the court, but a party political force.

The first ground is the ghastly and unreasonable reaction to the nomination of his successor.  Nothing better shows the breakdown of trust and good faith in American politics.  And the hypocrisy – these people go to bed with the Constitution, and say that its terms must be honoured.  Unless those terms do not suit their aspirations on the political makeup of the Supreme Court.

The second ground comes from a gun-loving, ideological soul-mate of Justice Scalia – Senator Cruz.  Before the Justice was buried, this apostle of hate said:

We ought to make the 2016 election a referendum on the Supreme Court.  I cannot wait to stand on that delegate stage with Hillary Clinton or Bernie Sanders and talk about what the Supreme Court will look like depending on who wins…..I give you my word, if I’m elected president, every single Supreme Court justice will faithfully follow the law and will not act like philosopher kings.

Cruz said the court was ‘out of control’.  It has after all allowed the US to enter the 20th century on health care and marriage.  But Scalia was

….an unrelenting defender of religious liberty, free speech, federalism, the constitutional separation of powers, and private property rights.  All liberty-loving Americans should be in mourning.

This bullshit is especially poisonous.  This man, who is more loathed by Republicans than Democrats, believes that the executive can and should control the judiciary – while praising a judge for his commitment to the constitutional separation of powers.  And he also thinks you can identify the extent to which a Supreme Court justice will ‘follow the law.’  The latter is just silly; the former is terrifying.

I am starting to wonder if ‘libertarian’ is code for fascist.  Liberty or freedom is invoked to warrant all kinds of insult to the brain.  Take Scalia’s reasoning in Heller, below.  It is as close to being demonstrably wrong as a constitutional decision could be.  If the right bear arms is warranted to enable citizens to use that right against a government they see as tyrannical, what better model could you have than John Wilkes Booth?  As he jumped to the stage after shooting the greatest man that the United States has produced, he said Sic semper tyrranis: so always with tyrants.  (It is in truth the motto of the State of Virginia.)  Why should the court invent a right the exercise of which is unlikely to be tested in court?  If an armed insurrection succeeds, the government falls; if it fails, the insurrectionists are likely to meet death one way or another.

One legacy of Scalia, and the likes of Cruz, will be the mourning of Americans for deaths in mass shootings that are now almost a daily event in America.  Scalia has gone to God with blood on his hands.

And people outside America mourn for that nation at large.

Poet of the month: Philip Larkin


Thinking in terms of one

Is easily done –

One room, one bed, one chair,

One person there,

Makes perfect sense; one set

Of wishes can be met,

One coffin filled.

But counting up to two

Is harder to do;

For one must be denied

Before it’s tried.



D C v Heller

In District of Columbia v Heller (26 June 2008) the Supreme Court ruled that the Second Amendment confers an individual right that is connected to a natural right of self-defence and is not limited to use for the militia.  Accordingly, since hand guns are ‘arms’ within the meaning of the amendment, they could not be banned by the District of Columbia, nor could they be required to be kept unloaded or disassembled or bound by a trigger lock, since such restrictions would unduly impede the right of self-defence of the owner.

Two things may be said immediately of the majority judgment.  First, it is one of those judgments that leaves you wondering how the contrary view may even have been put.  It reads more like the argument of a zealous advocate than the reasoning of a dispassionate judge.  If you did not know better, you might have suspected that its author entered upon the case with his mind made up.  The judgment has the shrill, combative tone of the high school debate.  Secondly, and relatedly, the majority judgment contains terms that are not just uncompromising and intemperate, but downright unmannerly.  The following phrases are alleged against the Justices in the minority: ‘incoherent’, ‘grotesque’, ‘unknown this side of a looking glass’, ‘the Mad Hatter’, ‘wrongheaded’, ‘profoundly mistaken’, ‘flatly misleads’.  In most pubs I know, any one or two of those could get you a bad black eye, and you would not be heard to say that you had not asked for it.  Some asides are just plain bitchy.  ‘Grotesque’ is deployed for effect in a one word sentence.  In English, that word means ‘characterised by distortion or unnatural combinations; fantastically extravagant; bizarre, quaint’ (Shorter Oxford English Dictionary).  This is five Justices describing the reasoning of the other four Justices.

It is a matter of regret and surprise that the Chief Justice did not restrain this unjudicial behaviour; but not only did he not restrain it, he joined in it, with three other members of the court.  I know of no other superior court in the common law world, or in Europe, where this kind of behaviour would be tolerated – either within the court or by those outside it. 

It is hard for judges to be taken seriously when they preach restraint if they are incapable of showing it to each other.  More worryingly, this is the kind of swaggering self-conviction that is likely to be seized on by manic gun lovers.  It is hard to think of any area of judicial law-framing that requires more care and dispassionate judgment.  A split decision five to four on such a political issue must erode public confidence in the working of the Constitution and government, especially when the majority says that the minority are behaving like the Mad Hatter. 

Judges forever underestimate how much ordinary people fear and distrust divided counsels.  They do not want to see egocentric prima donnas at the highest reach of government.  This is the reason for cabinet solidarity.  How would you sell a 5:4 decision to invade Iraq?  And there is a need for judicial solidarity.  When the US Bill of Rights was passed, and for 200 years after that, the ultimate appeal body for the British Empire forbad dissent – and everybody was better off.  A government seeking legal advice does not want as many opinions as there are lawyers to give one.  A rancorous ideological divide at the highest court in the land on an issue like gun control constitutes a very serious error of judgment on the part of the Court.  This was a bad failure of governance.

Well, some may defend the Court on the footing that this is, after all, America, and they do things differently over there.  Quite so.  If any citizen can carry a revolver down Pennsylvania Avenue, the Justices of the Supreme Court should at least be allowed to be rude to each other in public up at One First Street.  This is public life at the frontier of courtesy.  (When, during the war, a dissenting Law Lord made a reference to the looking glass that his chief, the Lord Chancellor, had been unable to restrain, one of the targets of the barb took the unprecedented of delivering the reproof in a letter to The Times.)

People outside America will be as interested in the facts acted on by the Court as much as anything else.  The hand gun is ‘overwhelmingly chosen by American society’ for the purpose of self-defence.  It is by far ‘the most popular weapon’.  It is ‘the quintessential defence weapon’.  (Why should not Smith & Wesson endorse semi-automatic pistols with these blessings from on high?  It as if the United States were one huge Dodge City.)  During the argument, the Chief Justice and Justice Scalia wanted to know how long it would take to lift the lock off the trigger?  Three seconds was the reply.  Their honours discussed how you might react if you wake up, turn on the bed lamp and put on your glasses, then have to unlock your gun.  (Laughter in court.)  It is as if high members of government in Washington do not sleep easy in their own beds unless they go to bed with their trusty revolver in an unlocked condition, and God help any legislature that makes any law that makes them slower on the draw. 

Their Honours discussed why the revolver might be so popular.  One explanation ventured was that ‘it can be pointed at a burglar while the other hand dials the police’.  This discussion is taking place in the course of a written judgment – in the highest Court in a nation that sees itself at the forefront of western civilisation.  What do you use your preferred hand for – the phone or the gun?  If the burglar is recalcitrant as well as unlawful, what part of the body do you aim at?  Can you shoot to kill someone who never wanted to do that to you, or with your untested marksmanship would it not matter?  Will you still be a hero if the intruder is unarmed, retarded, and dead?  And if the ultimate purpose of the gun is to kill human beings, what about the preacher who said you should turn the other cheek?

Various police bodies put in briefs that chill the blood.  The automatic pistol is the weapon most used in violent hand gun incidents.  You can now buy, for example, a Romanian AK pistol with two high capacity mags for $429.  These things can spit death out at a phenomenal rate.  Who needs two mags, apart from serial killers?

‘Pink Pistols’ put in a brief saying that gay people particularly needed the weapons because they are more prone to violence, particularly at home.  But the most frightening document of the lot was that put in by a body which styles itself as ‘The Association of American Physicians and Surgeons’.  Their first argument is that ‘the primary use of guns is defensive, having a beneficial effect’.  Then –

Without the right to bear arms, an emasculated citizenry becomes vulnerable to tyranny, terrorism and genocide.

Nowhere else on earth could you find soi disant doctors willing to voice such venomous nonsense.  Did these doctors – if that is what they are – consult the American Indian about the link between the use of the gun and genocide?  Would they, if the bribe were good enough, go into bat for those other misbegotten merchants of death, the tobacco companies?

The Court had to deal with a previous decision that the Second Amendment applied only to weapons used by the militia.  This, the Court said, meant that the Amendment did not protect weapons not typically possessed by law-abiding citizens for lawful purposes – such as short-barrelled shotguns.  They referred to Blackstone (4 Commentaries, 148-9) saying that ‘dangerous and unusual weapons’ were prohibited (by, among others, Solon of Athens, who forbade Athenians walking around their city in armour).  The Court did not refer to the statement of Sir William Holdsworth, the leading authority on the history of English law, that the Tudors had prohibited the carrying ‘of certain kinds of arms – such as pistols and handguns’.  On that basis, the English Bill of Rights would never have applied to hand-guns.  (This is not surprising, since their military use has traditionally been confined to infantry officers, or officers of the other services.)  It is unlikely that an American court would now feel the need to rule on the constitutional validity of royal proclamations in light of the Statute of Proclamations (31 Henry VIII c 8), which was passed because of the proclivity of that king to legislate by proclamation, as when he proclaimed Luther as a heretic, but if you want to moor in the backwater, you may have to get your feet wet.

And since no gun has been invented that is not ‘dangerous’, it becomes impossible to accommodate the decision of the Court with the law stated by Blackstone and which was applied in the American colonies.  In any event, legislators and trial judges will have a dreadful time trying to apply these guidelines, and with almost no hope of getting a law as simple as that of Solon or the Tudors.  Why not start with a simple ambit claim?  ‘It is an offence to own, purchase, carry, or possess any gun that is either dangerous or unusual’.  The precedent is unimpeachable.  Your next gambit would be to ban guns not used by your militia, and then limit the guns available to them, but on any view the $429 Romanian AK pistol would be off the table.  Surely.

Blackstone believed that the right to bear arms could only be invoked to the point of using the arms if government had failed.  The reasoning of the Court must allow that Americans mistrust their government and each other to the extent that the Second Amendment must be read so as to allow people to keep and carry hand guns to protect them against their neighbour or their government ‘in case of confrontation’. 

But why do the Americans fear their neighbours?  Because their neighbour might be armed with a gun.  And how is this so?  Because the law does not properly regulate the use of hand guns.  And why is this so?  Because of this interpretation of a badly written and outmoded law.  I have to carry a gun because you might be carrying one.  The Americans have therefore delivered an answer to the prayers of gun-makers and coffin-makers and have given judicial endorsement to the constitutional possibility of perpetual gunfire.

The decision of the majority covers 64 pages.  Is it not remarkable that a simple and unassailable truth takes so long to expound?  This decision is about nine times longer – nine times – than that of the Supreme Court in Brown v School Board of Education, a unanimous decision of the Court that helped the American people move forward and added immeasurably to the standing of the US in the world.  (It is about one hundred times longer than the decision on slavery of Lord Mansfield in Sommersett.)

The Court in Heller was put expressly on notice of the problems of gun control, namely that guns are used to kill people and that outlawing a prohibition of them would lead to more killing.  Here is how the Court washed its hands of the deaths of Americans that would inevitably follow its judgment:

‘We are aware of the problem of hand gun violence in this country… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.’

What an appallingly heartless slap in the face to all of those Americans who have lost family or who have been maimed because their government cannot properly control the use of hand guns, the weapon of choice, the Court tells us, of the overwhelming majority of Americans.  Well, the question that Pontius Pilate asked of the prisoner before him was, ‘What is truth?’ and some say that he was jesting as he left the hall of judgment.

The decision of the US Supreme Court in Heller therefore exhibits the following characteristics: a dogged pursuit of ideological assertions and an adherence to outmoded catch-cries (misplaced zeal); an inability to accept that another view may have equal weight or at least some merit (intolerance and over-confidence); a real and not just an apparent indifference to the suffering of others; a failure of governance; arrogance, and personal rudeness, in high office; and a determination not to be affected by what the rest of the world might think (provincialism).  These are the symptoms of the American malaise; what used to be called the Ugly American.

For most people outside of America, that ugliness in respect of gun control – and the image is very, very ugly – was best shown in the image of a B grade actor giving his version of a fascist salute while holding a gun – as it happens a rifle – and vowing to die rather than surrender it, and then getting the Nuremburg style standing ovation that you would expect from a mob of like-minded lightweights.  And for the rest of the world, that is just one step above the Klan. 

We need to see this decision in the overall context set out above.  More than eight hundred years ago the law made provision for people to be armed because there was no army or police.  Before that public duty became a right, the English began making laws to control the use of weapons, including hand guns.  The Bill of Rights made limited rights as allowed by law (including the control of hand guns) and it did so in the immediate context of controlling a standing army.  The US followed the English model by expressly referring to a ‘well regulated militia’ and ‘the security of a free state’, so as to make it plain that they followed the English model.  None of those rights was anything like a universal right, and whatever else the English model extended to, it did not extend to hand guns. 

Yet more than two hundred years after the US model was created, and both England and the rest of the world had moved on into safer realms, the United States Supreme Court rules that the right is an individual right such that the use of a hand gun at home for self defence so that a law that requires the owner to keep it locked is unconstitutional.

The Court did not look at this 800 years history of the law – characteristically it focused on American history – but had it done so, it may have reached a different result.  Oliver Wendell Holmes famously said:

‘The rational study of law is still to a large extent the study of history… When you get the dragon out of his cave … you can count his teeth and claws, and see just what is his strength.  But to get him out is only the first step.  The next is either to kill him or make him a useful animal…  It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.  It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.  ‘

The Court accepted that times had changed but did not see it as its role, as Justice Holmes would surely have done, to take the dragon out of the cave and kill it, or at least make it a useful animal.  No one is under any illusion – this dragon breathes fire and kills Americans.  Thousands upon thousands every year; more than Osama bin Laden could ever dream of killing.

The Court referred to the risk of tyranny, presumably some form of oppression practised by a government that began lawfully.  (After all, even a majority can be tyrannical.)  The revolts against the English Crown in 1215, 1688 and 1776 were all resolved at the point of the sword or the end of a gun, although only the third needed a war.  King John did not have the soldiers.  James II did not have the numbers.  George III found out what the Americans found out in Vietnam and Iraq – it is very hard to sustain an occupation in a faraway land where the home side has the high moral ground.  If you skip the claptrap, the first and third revolts were about money, and the second was about religion.

That brings us back to the enforcement issue.  A right to bear arms is not a right to use them but, passive deterrence aside, there is not much point in having a right to bear arms if you will not have a right to use them.  Americans must presumably use their own judgment of their common law rights when in the home they draw their preferred weapon on an intruder.  But when are you allowed to draw your gun on your government?

In using arms against the state, success is its own vindication; failure means death.  As one American rebel remarked, they ‘would have to hang together or be hanged separately’.  Any alleged right to use arms against a government will not be justiciable until the issue of arms has been determined by arms.  The American colonists rebelled against the English Crown over taxation, and those who would have been hanged as terrorists are national heroes.  The continued vitality of the Second Amendment means that the government of the United States is on permanent notice that the people of the United States reserve the right to respond to ‘tyranny’ on the part of their government by the use of the gun.  That may, I suppose, be ultimately the case everywhere.  It is what Plumb called ‘the implicit right of rebellion’.  But nowhere else will you find it celebrated as a constitutional right.  Only in America do you get that.  But even in America, no government would say to its citizens, ‘If you don’t like my taxes, take up your arms and march’.

If then the Second Amendment ‘codified a right inherited from the British’ as the Court accepted, it was a right that precluded the Crown from frustrating the implied right of rebellion by purporting to disarm the citizenry as the Stuarts had sought to do.  This was nothing like a right to use hand guns for defence against killers at home.  In any event, the Tudors had commenced the process of regulating hand guns some time back in history.  The position in America now appears to be that because of the way America has received its inheritance from the British, it cannot now legislate to control guns in the way that the English started to do more than four hundred years ago.  If that result is juristically valid according to the laws of the United States, it is, if I may say so, grotesque.

We are, after all, looking at a colonial throw-back.  It is very common for the law and customs of the mother country to become frozen in the colonies of the diaspora.  The incomparable Sir Lewis Namier said that the US is ‘in certain ways, a refrigerator in which British ideas and institutions are preferred long after they have been forgotten in this country’.  To stay within the metaphor, the decision of the Court in Heller was nothing if not cold; and it is hard to say that you have won independence from the mother country when you bar yourself in behind its archaic laws.

The majority of the Court in Heller saw fit to refer to Through the Looking Glass in dismissing the reasoning of the minority.  This is an adult fairy tale that has a passage lawyers love to quote when there are disputes about the meaning of words – which is just about all that lawyers argue about.  It is very apposite to the present case.

‘But “glory” does not mean “a nice knock-down argument”, Alice objected.  ‘When I use a word’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.

‘The question is’ said Alice, ‘whether you can make words mean different things’.

‘The question is’ said Humpty Dumpty, ‘which is to be the master – that’s all’.

And everybody knows what happened to Humpty Dumpty. 

The Supreme Court could have avoided this decision on handguns.  The ‘right’ was never universal.  It related to the militia which has nothing to do with handguns or personal self-defence.  The English had already taken handguns off the table.  But some policy demon drove the Court backwards.  This failure of the Supreme Court to slay or tame the dragon in the cave was not just a failure of legal scholarship and judicial technique – it was a failure of moral courage and intellectual leadership. 

6 thoughts on “Passing Bull 31  The Parallel Lines of Scalia and Cruz

  1. It has been apparent for quite some time that the dirty work of the extreme Right, the fascists, is being undertaken by Catholics.
    Of course that organisation has a history of terrible deeds against those who disagree with it, so it should not surprise that the Scalias & Cruzes are carrying on that vile tradition.

  2. Ooooh, Laurie Forde, though there are any number of malevolent powerful Catholics in the extreme Right, what you say has not “been apparent for quite some time to me”. I’m surprised you would make such a sweeping and demonising allegation under the blog of a temperate jurist, and one who has just above preached tolerance and pluralism.

    • The facts speak for themselves. Wars are fought for profit mainly under the guise of religious fervour. Remember the Crusades eg ? If warfare ceased tomorrow , the first serious casualties would be British and American arms producers. The economies of the West would tank, and along with them their enforcers in organised religions on all sides.

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