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July 23, 2004

The Grateful Last Word

By Michael Krauss

First, Wally, I want to make clear what a wonderful "host" you have been throughout this dialogue. Those of us in legal academe are all too familiar with the viciousness and intellectual dishonesty that lurks around most every bend. Point Of Law has established itself in my mind as a beacon of respectful yet engaged discussion – and that is why I am so pleased to join its board of "official bloggers." Many thanks to the Manhattan Institute for providing this forum.

On April 18, 2001, I delivered a talk on the Second Amendment and Tort law to the students at Cornell Law School. Unbeknownst to my hosts, the date of my talk was quite propitious. For on that same date in 1775, one Paul Revere instructed friends to hang two lanterns in the Old North Church in Boston. That was a signal to patriots in Charlestown that the British troops were coming by sea,to arrest Sam Adams and John Hancock in Lexington, and most importantly to seize the citizens’ arms in Concord. Revere succeeded in alerting the locals, and about 70 citizens (a.k.a. "the militia") gathered on Lexington Green to begin what was our country’s fight for independence. This fight would have been impossible, of course, had the people not had the right to keep and bear arms. As it happened, April 18, 2001, the date of my Cornell talk, was also the beginning of the Jewish holy day Yom Hashoah, commemorating the massacre of 6 million Jews by Germany's National Socialist party and its henchmen. The connection between the Nazi genocide and prior government disarming of civilians has by now been documented: here's a link to a nice summary piece by Dave Kopel on this issue. So yes, Wally, you are absolutely correct to stress that the Second Amendment has nothing to do with hunting or target shooting or household accidents, and everything to do with defense of liberty against evildoers (whether those evidoers are individuals or carry government credentials). [In violation of the British people’s fundamental rights, but without protection because of the institution of Parliamentary sovereignty, Great Britain has implemented a prohibition against owning handguns for self-defense. Today an Englishman is twice as likely to be mugged as is an American, and 150% as likely to be robbed. And 600% as likely to be robbed while at home.] Indeed, many founding fathers agreed with Thomas Jefferson (and a few modern-day towns in America -- long live decentralization!) that able-bodied citizens have a constitutional duty to keep and bear arms. [See, Letter by Jefferson to John Cartwright, 1824. (The Writings of Thomas Jefferson, Memorial Edition (ME), Lipscomb and Bergh, editors, 20 Vols., Washington, D.C., 1903-04, 16:45.]

Why then did I raise the issue of junk science exaggerating the contemporary dangers of firearms? Merely to underline the fact that many of the Second Amendment's opponents are not merely ignorant of constitutional history – they are also blinded, by their ideology, to sound empirical analysis.

[An embarrassed aside: I should point out here that my own personal history is very foreign to the gun issue. I was born in New York City to lower-middle class Jewish family that had no contact with firearms. While I was still a young child our family moved to Canada, where handguns are virtually banned (don't get me started on that...). I had never seen a firearm of any kind until I ventured into a gun store shortly after I moved to George Mason in 1987 – and I was frankly as terrified in that gun store as I would have been in, say, a pit of snakes. I've changed a lot since then, though...]

Back to tort law for my final comment. The New York Times v Sullivan case you cite is in fact quite instructive, but I do not believe that it gets you where you want to go (here's roughly where you wanted to go, if I understand you correctly: the Supremes replaced state defamation law with federal defamation law, and if they could do it legitimately then Congress could have, too; and if state defamation law can be suppressed when 1st Amendment rights are imperiled, then state tort law can be suppressed when 2nd Amendment rights are threatened) . The reason Sullivan won't get you where you need to go is that Sullivan was indeed an illegitimate decision. What the Supreme Court could and should have done in Sullivan was quash the Alabama decision (which had held the Times liable for a huge damage award following publication of an inaccurate political ad targeting a local elected official, despite the fact that virtually no one in Alabama read or was influenced by that issue of the Times) and send it back to Alabama courts for reconsideration in light of Alabama defamation law. State courts declare their Common Law (including the Common Law of defamation), but they may not declare a Common Law that conflicts with the greater Constitution.

An analogy to the issue at hand is useful here. Imagine that a state court decided that the manufacture of firearms was itself tortious, because firearms are "too dangerous." That decision (and, harkening back to my very first posting, I emphasize here that this is a pure hypothetical -- there has never been such a decision, from any state court ) would arguably imperil Second Amendment rights, and the Supreme Court would be authorized to remand it back to the state's high court for a re-determination not incompatible with the Constitution. The Supreme Court would not be authorized to create nationalized tort law from the bench (say, by "declaring" that 20-round magazines are tortious, but production of six-shot revolvers is not negligent). There was, in summary, no need for a federal appeals court to declare and implement a national libel law (as the Supreme Court essentially did in Sullivan and its progeny), and the same objection holds as regards a national tort law. Our federal Constitutional courts of revision have no mandate to violate the federal/state separation of powers. For a complete exposition of this argument, see the excellent piece by Richie Epstein, Was New York Times v Sullivan Wrong, 53 U. Chicago L. Rev. 782 (1986).

What a marvelous dialogue this has been for me, Wally. We have touched so many iceberg tips – from the nature of the judicial function, to the nature of the Common Law, to the grounding of the Second Amendment. This has been a scenic but whirlwind tour, and of course it bears mentioning that it leaves us united on the most fundamental view: that Tort law is in serious need of fixes in America today, and that Tort's malaise is threatening the very existence of the Rule of Law in our country.

This has been my pleasure, Wally.


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