If the trumpet give an uncertain sound

I thought it was striking that the President quoted Scripture at the memorial for the Newtown victims on Monday. Traditional Democrat tendencies (at least in recent decades) might have been to shy away from such Christian rhetoric — especially given the “inter-faith” nature of the event. But Obama, by his own account a practicing Christian, spoke from a position of that faith. In my view, this was entirely appropriate. Inter-faith dialogue does not mean that faiths are checked at the door, but rather — exactly to the contrary — that they are welcome to come in as they are. Moreover, if respecting others’ faiths means anything, it means expecting that one’s own faith (or lack thereof) will be respected in the same way. For the whole idea is that each individual’s speaking-position is something she or he can’t just lay aside. Thus Obama, as a Christian, showed maximum respect and humility for the dialogue by speaking Christianly. He would have been condescending and inauthentic — he would have been speaking in bad faith — if he had offered only the usual post-modern and non-sectarian homilies. You know the sort of thing: let’s all come together, rise above our troubles, seek the light, etc.

And yet: I thought the President’s choice of scripture was pretty striking, too. He quoted 2nd Corinthians 4.16-18, in the New International Version (NIV). I did NOT know that just from reading his address; I had to Google the quote, just like everybody else. As a matter of fact, I was initially unsure, despite his “Scripture tells us,” that Obama was quoting the Bible at all. The second letter to the Corinthians is pretty obscure, I think (Biblical scholars are welcome to correct me), lying as it does in the massive rhetorical shadow of First Corinthians (with its through a glass darkly, faith hope charity, etc.). 2.Cor.4.16-18, specifically, is one of the relatively few passages in any of Paul’s Epistles that make no mention of Jesus, or the Church. It is one of the very few in Paul that sound rather like a non-sectarian post-modern homily — a lot of generic stuff about not losing heart, seeking inward renewal, looking to eternity, etc. The incredibly bland prose of the NIV, which would not be out of place in a self-help book, doesn’t help. (Obviously, I’m a King James man myself). Add it all up and you have the President quoting Scripture at the Newtown memorial, but in such a way that he was almost not quoting Scripture. It was as if he was trying to sneak the Bible in; to screen it, rather than to show it.

I think that’s unfortunate. For two reasons. First: the careful choice of such an unscripturey scripture does tend to weaken, along the lines I’ve already indicated, the authenticity and sincerity of Obama’s speech. And second: The President was speaking at the advent of a domestic political crisis that contains within itself the potential for a tremendous social renewal. Across the media and political landscapes of the United States, people who have previously hidden their support for gun control, or have actively campaigned against it, are suddenly and as if through an awakening standing up and saying that the wind has changed. If the President is to lead  on this issue, if he is to seize and augment the progressive momentum that has been unleashed since the Newtown shootings, he will need to be, not just a manager, or a figurehead, or a decision-maker — but a teacher, a father, a preacher. In the idiom of St. Paul, Obama will need to prophesy. And this not in any generic mode, but in a manifestly Christian one.

After all, the gun-madness of contemporary US political culture (like the reactionary-right-wing-madness of which it is a subset), is not a Jewish or a Muslim or an interfaith problem. It is a Christian problem. The politics of firearms extremism in the US is intimately intertwined with the politics of evangelical Christianity, in all its dogmatic self-caricature. The way to cut this knot is not to concede Christianity to ignorant reactionaries, but to reclaim it from them. And although I am not myself a practicing Christian (or anything else), I know enough of the Bible and of Christian tradition to believe quite passionately that such a reclamation is entirely possible. I have always thought it one of the long-term disasters of modern American politics that progressive leaders have abandoned Christianity, which is so deeply-rooted in so many areas of American society, to the reductive right-wing. Less than fifty years ago, it was not so: the civil-rights struggle would never have succeeded without the churches, and the transformative work of Martin Luther King was saturated with the Bible through and through. Obama, perhaps more than any Democrat since King, may have the capacity to re-articulate for Americans the meaning of the Christian testament. And if he doesn’t, I do not believe that he will be able to achieve very much on gun control.

So I hope that Obama will speak to this issue, precisely as a Christian, sincerely, fully, and openly. I hope he comes out swinging, with Jesus and Paul and John. I’m afraid, though, that prophet is a role he does not quite want; that passion threatens his coolness. I’m afraid he will flinch, as he did at Newtown, when asked to speak from his faith.

And then who shall prepare for the battle? (1 Cor. 14.8)

the lost law

Here is something I wrote but didn’t publish (not being a law professor) several years ago on the disastrous Heller judgment re: the US 2nd Amendment. It’s fairly long and academic. But I still think it’s right.


In its recent judgment striking down the District of Columbia’s handgun ban (DC v. Heller), the US Supreme Court found that the Second Amendment protects a legislatively inviolable  right of domestic gun ownership. This despite the Amendment’s failure to say so, transparently or self-evidently. It says (precisely, down to the commas):

“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.”

Justice John Paul Stevens, dissenting in Heller, notes that the Amendment subordinates the question of gun ownership to a question of militia regulation. He also notes that some contemporary and analogous state laws, and some rejected proposals for the wording of the Second Amendment itself, carefully and explicitly mention and protect private gun ownership for domestic and non-military purposes (such as hunting and self-defense). In other words, the extension of the “right to bear arms” beyond the area of militia organization precisely did not go without saying, in the founding period. Yet this very extension is exactly what the Second Amendment fails to provide.

To be sure, it does not follow from the Second Amendment’s ambiguity, or from the militia subordination, that the Amendment constitutionally invalidates domestic gun ownership. It does follow, however, that the Amendment does not constitutionally necessitate domestic gun ownership. As Justice Breyer argues in his own dissent, the Amendment simply does not rise to the standard of explicitness and unequivocality that is necessary to the extraordinary circumstances of judicial review – when judges, unelected, and (on most questions) empirically non-expert, strike down statutes that express the democratic will of the people, as codified by their elected representatives, after consideration and application of the available evidence.

Interestingly, the attitude that Breyer asserts – judicial circumspection, founded on a reflexive scepticism about his own insight, and a keenness to respect the constitutional separation of powers – is itself usually asserted by conservative judges like those who formed the majority in Heller. Yet in Heller, the Court’s originalist majority sees fit to strike down the DC handgun law: to find, that is, that the justices know a priori what are the limits of acceptable gun control, because of what the Second Amendment, allegedly, means.

And what, on the originalist reading, does it mean? Justice Antonin Scalia, writing for the majority, argues as follows. Scalia proposes that the Amendment’s two clauses – the “Militia” clause and the “bear Arms” clause – need to be read in reverse order. As Stevens comments, understatingly, “that is not how this Court ordinarily reads such texts.” It seems a very unusual way for anybody to read any text – especially a complex sentence, in which a dependent clause leads into, and in some sense determines, an independent one. However, Scalia justifies his move by asserting that the syntax of the Second Amendment allows, even dictates, its own reversal. The militia clause, he says, is “prefatory.” The bear arms clause is “operative.” “A prefatory clause,” he writes, “does not limit or expand the scope of the operative clause”; “the former does not limit the latter grammatically, but rather announces a purpose.” Scalia’s hermeneutic redistribution of the Amendment depends, evidently, on his grammatical talk of “prefatory” and “operative” – as opposed to,  say, “dependent” and “independent,” or even “first” and “second” – clauses. For this talk is what allows Scalia to assert that the “bear Arms” clause is the one that basically matters, being “operative”; while the “Militia” clause, being merely “prefatory,”  is only there to lead into the “bear Arms” clause.

No doubt there are complex sentences in which the dependent clause can accurately be called “prefatory” to the independent  one, rendering the latter solely “operative.” (E.g.: “As he walks up the street, shoot him”). Equally, however, there are certainly complex sentences in which the dependent clause semantically determines – limits or expands or redirects – the extension of the independent one. (E.g.: “If  he walks up the street, shoot him”). In the first case, one might be able to parse the second clause first. In the second case, one certainly could not.

It is far from clear that the Second Amendment is closer to the first kind of complex sentence than it is to the second. The question of whether it is, moreover, is nothing other than the question of whether or not the Second Amendment, prima facie, seems to enshrine a constitutional right to domestic gun ownership. For if the Amendment’s syntax really breaks down into “prefatory” and “operative” clauses, then (as we have seen) the “bear Arms” clause will seem to be the one that really matters, being “operative.” If, on the other hand, the bear arms clause is not the one that really matters, then the militia clause cannot hardly classified as merely “prefatory.”

The point here is that Scalia’s basic reading of the Amendment, and the pseudo-grammatical binary he invokes in order to ground that reading, are one. They are twin iterations of Scalia’s sense of the Second Amendment’s “original understanding” as having to do with the armed defense of “hearth and home.” One iteration appears as reading; the other as the rule that allows that reading. Scalia’s “original understanding” of the Amendment is a pre-interpretative intension that he “discovers” by a method that is projected by that very (alleged) discovery. This is a classically objectivist circularity.  The “original understanding” is projected before constitutional interpretation, and even before the constitutional text. It therefore allows Scalia to determine the latter, and dismiss the former.