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.

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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.

Chaos, Control, Centrifuge

Three thoughts on Paris, from which I have recently returned. 

1. Chaos      Paris escaped the Second World War with very little damage. The French capitulation of 1940 spared the city a German attack; the German tactical retreat of 1944 spared it an Allied one. Neither side, at any time, had much reason to bomb it. This historical blessing is not only on the great monuments of the Right Bank, but also on the medieval squalor of the Left (where I stayed for the first part of my trip). The neighborhoods that spread southward from l’Ile de la Cité present a real, organic continuity with the way they they would have been a thousand years ago. On the narrow, irregular streets, you wander and backtrack and go in circles and get lost in a way that is utterly different from the right-angled consciousness of a modern city. True, few of the buildings are medieval — but most of them are pretty darned old, dating, I would guess, from the 16th and 17th centuries. (Compare the City of London: medieval street scheme lined with International Style banks.) The bulges and leans and angles, to somebody raised in an earthquake zone, border on the terrifying. My tiny hotel had exposed, rough-cut timbers, stuck in the plaster walls like sausages in cream; and a central supporting post, the stairwell curling around it, so roughly-finished and glossy with age that I think it was last a tree around the time Champlain founded Quebec. (That’s like Jamestown colony, y’all.) Even in Rome, I don’t know if you would find many structures like that, still standing and functioning in the heart of the city. So Paris, despite its size, bustle, and sophistication, still retains and offers a remarkably satisfactory impression of The Medieval City. Earthiness and all. On my first night there, approaching Nôtre Dame from the south, openmouthed in awe at its High Gothic perfection, I was meditating on how wonderful it is that such a cathedral stands alone on the end of an island, because that means you can see it as a whole from a distance, which is very rarely the case with the major church buildings from that era (nestled as they usually are in a dense urban fabric), and I was transfixed by the immense rose window in the southern elevation, folding and unfolding eternity across the Seine, like a vision out of Hieronymous Bosch, like the eye of God as painted by Dalí, when I stepped straight into a huge pile of Parisian dogshit. The only time in my life, I’m pretty sure, when this kind of mishap has made me laugh.

2. Control     Of course, there’s also a modern Paris – some of which, paradoxically, isn’t really in Paris (and I’ll come back to that) – and nothing could be more modern than the main François Mittérand site of the Bibliothèque Nationale. (Disclosure: NOT my pictures.) Walking east along the Seine, you first encounter this building as stairs leading up from the street: high, precise, wooden stairs, stretching the length of the block and beyond, steep enough and tall enough that they almost seem to lead nowhere. Climbing them, you find yourself on a massive rectangular plaza, at each corner of which stands a twenty-storey L-shaped office tower with a curtain wall of green glass – ultra-minimalist, huge, and showing very little sign of human activity. So it’s monumentality and simplicity to the NNNth degree. And the initial impression, at least for me, is of one too many degrees.

To access the library, you have to re-descend. This needless complication and redundancy of movement – going up to go down – is all the more annoying for being dressed up in an aesthetic of ultra-modern simplicity and functionality. There are two entrances, east and west, down moving sidewalks (why these should be necessary I have no idea) between jutting steel walls. At the bottom is a little cantilevered concrete patio, as cramped as the plaza above is massive, which tends to become a horrendous smoke pit, because the French still puff like crazy (but have banned it indoors), and people naturally stop there when they exit the library, rather than purposefully going all the way back up to the plaza. So that vast public space up there sits empty – not openness, but vacancy – and you eat smoke like a firefighter as you go through the revolving door.

When you enter the buiding, your briefcase is searched, and you pass through a metal detector. Then it is mandatory that you check the briefcase, receiving instead a clear plastic mallette. That means “briefcase.” So you have swappped your case for a case. What is more, at this stage nobody cares what you transfer from the one to the other. Your briefcase got checked at the entrance to the building; but nobody even looks at your mallette when you enter the actual research libary. The only point of the procedure seems to be the procedure.

To get into the actual library, you first scan your researcher’s card to pass through a turnstile – “exactement comme dans le Métro,” as the cheerful, Kindergarten-teachery lady who gave me my researcher’s card explained. (I was grateful for her slow, clear French, and for how she helped me not to miss Maman.) Then you go through two sets of floor-to-ceiling grey metal doors, and then down a very long escalator. At the bottom, you are in a vast, open, cold, concrete entry hall, two stories high. It’s like what every Brutalist architect with a public commission in the 1970s wanted to build, but didn’t  quite have the budget for. Before passing through another set of giant metal doors – which will finally, more or less, let you into the library proper – you pass through another turnstile, and go to the entry  desk, where a staff member places your card on a special scanner.

Everything at the BNF works through cards and scanners. If you want to use one of the computer terminals: card on scanner. Microfilm: card on scanner. Exit: card on scanner mais SORTIE INTERDITE! If you have documents checked out to your table, and you have not told staff that you are going outside, well, you can’t. The turnstile locks, and you are caught comme un poisson. You have to slink back and ask permission. (Like, I’ve heard.) And even if you don’t have documents checked out, you aren’t really supposed just to leave the research level, just cause you want to, like it’s no big deal.  No: first scan your card at one of the special terminals that are placed at the bottom of the escalator for this exclusive purpose, and only then may you make your way, temporarily, up into the air.

At the entry desk, via the scanner, you are assigned a numbered table in one of the library’s ten main salles de recherche. These are identified by letter and colour, and each one is dedicated to a certain area of research: literature, philosophy, history, and so on. But it doesn’t actually matter which room you end up in; as my Kindergarten lady explained, materials from any of the library’s stacks can be called up to any desk, anywhere.  So it’s another case of superficially important control serving no actual purpose. The same goes for the “clubs” that are situated at the research level’s corners. These are breakout rooms where you can rest, eat your lunch – if you have brought it down with your in your dorky mallette – or get a coffee from one of the coin-operated, twentieth-century-style machines. One is called the “Club des Lois,” another the “Club des Nombres,” another the “Club des Temps,” and the last the “Club des Lettres.” (The towers that stand high above each of them are also so designated.) So, formally, if you’re a number, for example, you know where you are supposed to go to hang out. But substantively, most people go to the Club des Lettres, because that’s the only one with a cafeteria.

My mission at the BNF was to look at a couple of sixteenth-century books with relevance to my ongoing professional interest in the cultural origins of modern information theory (blah blah and blah.) So I asked for, and was assigned, a table in Salle R (histoire et philosophie des sciences).  I found my spot, connected my Ethernet cable – no weefee – and prepared to request my first book. But then things got complicated. There I was, in a surely appropriate salle, trying to figure out how to get the book I wanted on my table. But its citation in the online library catalogue indicated that the book, published in 1564, was actually available on open shelf access – this made no sense – in another place. So I asked a librarian, who informed me

(1) that the history-of-science-related book I wanted could not actually be read in the history-of-science reading room;

(2) that the book was not on open access, but in the rare books room (now that made sense) – even though the catalogue citation gave absolutely no such indication or direction; and

(3) that that meant I was going to have to leave my place in Salle R (where I was just beginning to feel at home) and betake myself to Salle Y.

Where was Sal Eegrek? A difficult question, since the lettered and colored reading rooms, among which I had been invited to request a place, went only up to “T.” (And this even though I had told my Kindergarten lady that I intended to work on livres rares. Maybe she was trying to give me a complex.) Moreover, my helpful librarian, as he tried to get his rather complicated message through my mediocre French comprehension, kept pointing up. Now, rule one at the BNF is the distinction between Haute-de-Jardin – the upper or “studies” level, which is for students and, well, just anybody – and Rez-de-Jardin, the lower or “research” level, which you can reach only by the complex process of application and descent that I have in part described. How could the rare books room – which, frankly, I thought was the whole point of a research library – be up amongst the just-anybodys? Well, it turns out that Salle Y is indeed part of the research level, but only because it is accessed exclusively by a little elevator (I am not making this up), ascending from an anteroom on the other side of another set of giant metal doors located in Salle T! It was at this point that I began to think of Frazier, specifically of the episode where Frazier and Niles keep trying to get to the next level in a chi-chi spa.

In the rare books room, I was able to do some actual research. Also, I learned the real point of the mallette: it is there to get checked, in a little cubby, for which you get a little key. It’s disappointing that there isn’t another room – as far as I am aware – into which you’re not allowed to take that key.

After I had finished with my first book, I requested another, but was told that I couldn’t have it, because another edition of that book was available on microfilm. The librarian was doing her job – I had to respect that. Well, then, I asked, could I please have that microfilm? “Ah, non, Monsieur,” she replied. “Il faut rentrer a Salle R.”

3. Centrifuge    On the first morning of the conference that had brought me to Paris, I was standing on a Metro platform. A train pulled in, packed to the gills. Not much of a report. But what made it interesting was that the station was on the northern fringe of Paris, and I was heading yet farther north, to just outside the city. In most cities that I have known, the morning rush heads in, not out. But then I was reminded that Paris is surrounded by a thick periphery of offices, universities, ministries, and industrial parks – its major administrative and economic functions, in other words, relegated to les banlieues.  In the morning, Parisians with good jobs head out to do them, in neighborhoods where black and Arab youths burn cars at night. But by then, the Parisians with good jobs are back home, among their elegant boulevards and handsome nineteenth-century apartment buildings, in the numbered arrondissements of the city proper.

Thus the extraordinary, almost miraculous beauty of central Paris – a city full of museums, which is itself one – is a bit of a cheat. It is not true, though it may seem so, that Paris has no parking lots, or soulless factories, or faceless skyscrapers. Rather, Paris has those functions, but segregates them outside its own borders, where Parisians propre don’t have to live with them. It’s striking that the arrondissements, numbered from a starting-point at L’Ile de la Cité, radiate outwards in a swirl: a centrifugal shape, which is as if fulfilled in the relationship between the city centre and its perimeter. Paris, like a spinning wheel, throws what is not Paris outward. But how long, driving such a gyre, can the centre hold?

let them eat brains

Great editorial in the still-un-paywalled NP on the real case for Obama. I even agree that the Mittster would not be a terrible President — but I think the GOP as it currently stands would guarantee a terrible Presidency, and I think it crucial that Romney lose, so that the Michelle Bachmans and Karl Roves of the party can annihilate each other in the subsequent internal zombie war.

mine, all mine

Excellent analysis from the Big Red E on the growth of income inequality. The question: is it a problem? The answer: yes, but also, consider the details. I particularly like the point about mortgage interest rate reduction being, in effect, a subsidy to the well-off. The model solution: Teddy Rooseveltian mitigation through liberation. Nice point that it is precisely closed corporate shops, intimately interrelated with anti-entrepreneurial governments,  that have produced the world’s greasiest oligarchs, from Mexico to China to Russia.

a scripture for nine eleven eleven

I always thought this passage uniquely appropriate to the memorial of this day. I’ve emended the translation of KJV below in one significant respect, which afficionados of Biblical philology and seventeenth-century English politics will recognize.

1 Corinthians 13

1 Though I speak with the tongues of men and of angels, and have not love, I am become as sounding brass, or a tinkling cymbal.

And though I have the gift of prophecy, and understand all mysteries, and all knowledge; and though I have all faith, so that I could remove mountains, and have not love, I am nothing.

And though I bestow all my goods to feed the poor, and though I give my body to be burned, and have not love, it profiteth me nothing.

4   Love suffereth long, and is kind; love envieth not; love vaunteth not itself, is not puffed up,

Doth not behave itself unseemly, seeketh not her own, is not easily provoked, thinketh no evil;

Rejoiceth not in iniquity, but rejoiceth in the truth;

Beareth all things, believeth all things, hopeth all things, endureth all things.

8 Love never faileth: but whether there be prophecies, they shall fail; whether there be tongues, they shall cease; whether there be knowledge, it shall vanish away.

For we know in part, and we prophesy in part.

10 But when that which is perfect is come, then that which is in part shall be done away.

11 When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.

12 For now we see through a glass, darkly; but then face to face: now I know in part; but then shall I know even as also I am known.

13 And now abideth faith, hope, love, these three; but the greatest of these is love.

squatsch

Seems the Cameron-Cleggers have moved to end the tradition of squatters’ rights that has long been such a feature of the British urban scene. The end of an era – with roots, I had always thought, way back in Common Law. You could probably sink a cruise ship with the number of creative and free-spirited people who have passed through the squats of London at one time or another. However:

Thirteen years ago, while still a graduate student, I stayed for some days in a squat in Hackney, near London Fields. Friends of a friend. The guy had dropped out of architecture school because he felt the hours were too long. He worked, when he wanted to, whitewashing exhibit spaces at the British Museum. His girlfriend was a primary school teacher. The squat was filthy and fetid. I slept in a room full of garbage. Others in the adjoining houses were photographers with expensive equipment, musicians, etc. They seemed to resent me for not buying them wine. All were white, young, middle-class, and able-bodied. They spent most of their time drinking, smoking dope, planning their next drive to the country, complaining about the “yuppies” who had bought the property behind them and, disgustingly, built a studio in the garden; and deciding which of the local restaurants run by thrifty busy non-white immigrants (Vietnamese, around there, mostly) they would patronize for their next dinner. The ex-architect student, who had one of the plummiest accents I ever heard, was petitioning Hackney council to deed the houses to the group, on the understanding that they would fix them up; for which, he further was petitioning, they should all be paid a “living wage.” With benefits and holiday, I guess.

In short: when I left that place, I also checked out of my own earlier sojourn in North London bohemia (1988-90) – finally, gratefully, and once and for all. I understand and applaud that people want to live their own lives. And there are people who have sunk so low they need a place to land. But that’s why we need sound and rational social programs — not crime. Which is what taking other people’s stuff, without permission and for nothing, is. I’m afraid I can’t shed much of a tear over the legal demise of the Squatter’s Raj.

blessings for Obama

This blog post from a conservative pro-life American mother (who “lost her fear of universal health care” after living for some years in Canada) is one of the most moving, useful, frank, intelligent, honest, uplifting things I have ever read about the strengths of our system, and the paranoias of contemporary American culture. About all she doesn’t say is “God bless President Obama for giving all Americans the opportunity for at least minimal medical coverage.”