by The Last Gun- How Changes in the Gun Industry Are Killing Americans
The day ended with the grisly discovery of a domestic murder-suicide. Just before midnight, police in Hattiesburg, Mississippi, found the bodies of Tracy Kennedy, sixty-six, and his wife, Judith, sixty-eight, inside their home. Both had gunshot wounds to the head. The county coroner concluded that Tracy Kennedy had shot his wife first and then committed suicide.18
These incidents are, of course, only a fraction of the gun violence that occurred that day. On average, slightly more than eighty people a day are killed by guns in America, and about twice as many are injured. So these anecdotes—gleaned from news reports of the day on Nexis.com—are just a glimpse of the real world of America’s daily dead and mutilated, a blood-red flag seen faintly through the news media’s gun-violence whiteout.
There was, however, no media whiteout at the U.S. Supreme Court in Washington, D.C.19 The most dramatic incident of the day involving guns happened in the Court Chamber of that august body. There was a torrent of reportage about the majority opinion in the case of District of Columbia v. Heller,20 delivered by Associate Justice Antonin Gregory Scalia.21 Scalia delivered the opinion from an ideological ivory tower, far removed from the reality of gun violence in America.
It would be difficult to imagine a venue more remote than the Supreme Court from the trailer park in Alabama where Jimmy Tanks died defending his car with a gun, or the home in Lebanon, Pennsylvania, where Khrystina Bixa’s boyfriend shot her to death. The monumental bronze doors that guard the Supreme Court building at the top of the white marble steps on its West Front weigh six and a half tons. Oak doors open from a Great Hall into the Court Chamber, in which the nine justices of the Supreme Court sit when delivering their decrees. The courtroom “measures 82 by 91 feet and has a 44-foot ceiling. Its 24 columns are Old Convent Quarry Siena marble from Liguria, Italy; its walls and friezes are of Ivory Vein marble from Alicante, Spain; and its floor borders are Italian and African marble.”22 These royal appointments are appropriate to the nine justices who constitute the third branch of government, with as much power among them as Congress and the president. Seven of the nine are millionaires, one (Justice Thomas) may be a millionaire, while only one (Justice Kennedy) is definitely not.23
Scalia delivered his decree from the courtroom’s wing-shaped mahogany bench in a grim, condescending, semimonotone.24 As he droned on, he transported himself and the decision back to the eighteenth century—a disease-ridden world of powdered wigs, pockmarked faces, flea-bitten bodies, and ignorance of the basic principles of public health, disease, and injury prevention. It was a time when even educated leaders “knew” that regular baths promoted promiscuity and that many diseases were caused by foul smells or, as in the case of yellow fever, by immoral behavior.25 It was from this dismal sump of smug ignorance that Scalia drew the wisdom he shared that day in 2008.
The Court’s starkly divided (5–4) ruling turned on its head at least seventy years of settled Constitutional law. Hailed by ideological conservatives as an example of “originalism”26—a putative return to strict construction of the “original intent” of the Constitution’s framers, as opposed to the judicial lawmaking liberal courts are accused of doing through their “loose construction” of the Constitution—Heller struck down the District of Columbia’s long-standing ban on the private possession of handguns. “We hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”27
“Our opinion is very lengthy,” Scalia warned in his oral presentation. “This summary that I’m giving will state little more than the conclusions. If you want to check their validity against the dissent’s contrary claims, you will have to read some 154 pages of opinions.”28 In a nation in which a serious contender for nomination as a candidate for the office of president derided the sitting president as a “snob” for promoting college education,29 one might wonder how many of those affected by Scalia’s decision would accept his challenge to read its arcane text. In fact, Scalia’s opinion is so long that an eminent conservative judge quipped that its bulk would “perhaps just overwhelm the doubters.”30 Deep within this leviathan, Scalia wrote the following crucial paragraph:
It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.31
The statements in this paragraph are pivotal to the decision, in which the majority decided that the Second Amendment confers an “individual right”—as opposed to the long-standing rule that the right is a “collective right,” intended to ensure the viability of state militias (and their successor, the National Guard). But as Scalia acknowledged in his opinion in Heller, even an individual right is not limitless.32 So where the Court drew the line limiting an individual’s right was crucial to the modern gun industry. High-powered, high-capacity, military-derived handguns are a vital component of the gun industry’s lifeblood. Scalia’s portentous effusion provided a factual basis that ensured that the ruling in Heller would protect handguns, the most lethal implement of portable killing power ever invented. And yet every alleged fact in the paragraph is at best mischievous myth, at worst demonstrably false. It is significant that, in an opinion top-heavy with ponderous citations to legal authority, Scalia cited not a single source—not one—to support the assertions in this vital paragraph.
In truth, these words are no more than an example of what lawyers call ipse dixit—“a bare assertion resting on the authority of an individual.”33 Allen Rostron, a constitutional scholar and law professor, captured this in his critique of Scalia’s opinion:
Justice Scalia . . . is certainly entitled to whatever personal views he may have about the relative merits of handguns versus long guns for home defense purposes. But his reliance on that sort of nakedly personal assessment of a public policy issue, to resolve a crucial legal issue in a landmark decision on the Constitution’s meaning, is startling. It looks very much like the sort of “judge-empowering” “interest-balancing” that he denounces the dissenters in Heller for endorsing.34
The criticism is more than ironic in Scalia’s case. He blasted his colleagues for a decision in 2002, stating that “seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members.”35 Unfortunately, Scalia’s paragraph lies at the axis of a legal ruling that will cost millions of Americans their lives and millions more grave injuries. Its influence is like toxic waste thoughtlessly released into a water supply.
It was not the first time Scalia got his facts wrong in a rhapsody of enthusiasm for the make-believe world of gun rights. Praising a pro-gun rights book written by Joyce Lee Malcolm, then a history professor at Bentley University,36 a business college in Massachusetts,37 Scalia pronounced the book “excellent.” He noted that the author was not a “member of the Michigan Militia, but an Englishwoman.”38 His point was apparently that an Englishwoman is more credible than an American member of a right-wing militia. Scalia was wrong on his facts, however. Malcolm is not an “Englishwoman.” She is an American.39
Some might dismiss Professor Rostron’s evaluation as sour grapes. Before he became a law professor, he was a senior staff attorney at the Brady Center to Prevent Gun Violence, a well-known gun-violence prevention organization. But it is hard to dismiss the caustic analyses of Heller by two federal appeals court judges—Richard A. Posner and J. Harvie Wilkinson III—both of whom were appointed to the ben
ch by President Ronald Reagan and both of whom are highly regarded as conservative jurists. According to the New York Times, “Judge Wilkinson, who sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was recently considered for a spot on the Supreme Court. Judge Posner, of the Seventh Circuit, in Chicago, is perhaps the most influential judge not on the Supreme Court.”40 CNN senior legal analyst Jeffrey Toobin41 wrote of Posner in 2006, “A prolific scholar and perhaps the nation’s best-known federal appeals-court judge, Posner wields singular authority from his chambers, in Chicago.”42 Perennial pro-gun activist John Lott, a virtual factory of much-criticized and regularly debunked pro-gun academic “studies,” lauded Posner and Wilkinson as two of the three “outstanding” judges serving on federal courts of appeal in 2006.43 The conservative magazine the Weekly Standard wrote that Wilkinson “long has been regarded as one of the most respected conservatives on the federal bench.”44
Neither Posner nor Wilkinson can be dismissed as simpering liberal gun haters. Yet it is hard to decide which of these two conservatives jurists’ scorn was more withering. The honor probably should go to Wilkinson, who, the Weekly Standard noted, “bestows upon Scalia’s opinion the most scathing condemnation known to conservatives: comparison to Roe v. Wade.”45 The comparison has a special sting for Scalia, who was reported in 2005 to especially loathe two high-court cases: Roe and Lawrence v. Texas, a 2003 decision which declared unconstitutional a law forbidding homosexual sodomy.46
Writing in the Virginia Law Review, Judge Wilkinson pummeled the ruling in Heller as ultimately not “conservative” at all. “Heller represents a triumph for conservative lawyers. But it also represents a failure—the Court’s failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: by-pass the ballot and seek to press their political agenda in the courts.”47 Wilkinson dismissed Scalia’s pontification as no more than a doppelgänger of Justice Harry Blackmun’s 1973 decision in Roe v. Wade,48 the ruling that declared a Constitutional right to abortion. “First, each represents a rejection of neutral principles that counseled restraint and deference to others regardless of the issues involved. Second, each represents an act of judicial aggrandizement: a transfer of power to judges from the political branches of government—and thus, ultimately, from the people themselves.”49
Judge Posner was hardly more forgiving. He criticized Scalia’s obstinately single-minded form of strict “originalist” interpretation as fakery. “Originalism without the interpretive theory that the Framers and the ratifiers of the Constitution expected the courts to use in construing constitutional provisions is faux originalism. True originalism licenses loose construction,” Posner wrote.50 This loose construction is “especially appropriate,” the jurist noted, “for interpreting a constitutional provision ratified more than two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry.” Posner went on to observe acidly that “the Framers of the Bill of Rights could not have been thinking of the crime problem in the large crime-ridden metropolises of twenty-first-century America, and it is unlikely that they intended to freeze American government two centuries hence at their eighteenth-century level of understanding.”51
Having scorned Scalia’s “faux originalism,” Judge Posner suggested that a motivation other than originalism might explain Heller:
The true springs of the Heller decision must be sought elsewhere than in the majority’s declared commitment to originalism. The idea behind the decision . . . may simply be that turnabout is fair play. Liberal judges have used loose construction to expand constitutional prohibitions beyond any reasonable construal of original meaning; and now it is the conservatives’ turn. . . . It is possible that in both the gun control case and the campaign-finance cases the justices in the majority, rather than playing tit for tat, thought the laws they were invalidating very dumb, and in the case of the District of Columbia’s ban on possession of pistols thought the law wimpish and paternalistic, like requiring bikers to wear helmets. . . . But judges are not supposed to invalidate laws merely because, as legislators, they would have voted against them.52
The most telling part of Posner’s criticism raked over the ponderous, footnote-laden, pseudo-scholarly style of Scalia’s writing. “The range of historical references in the majority opinion is breathtaking, but it is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce snow jobs.” Judge Posner then went even further, declaring, “The statements that the majority opinion cited had little traction before Heller.”53
Observing this intramural fracas, an editor of the libertarian magazine Reason observed, “Perhaps Scalia has changed his mind. Or perhaps . . . Scalia only selectively practices the judicial restraint he has long preached.”54
In fact, it was no coincidence that the job of conjuring up a “snow job” on gun rights fell to Antonin Scalia and his law clerks. Scalia had his mind made up before the case arrived on the Court’s docket. In 1997, eleven years before Scalia wrote his decision in Heller, he wrote—in the same book and footnote in which he praised Joyce Lee Malcolm, the “Englishwoman” who wasn’t—exactly what he professed to discover in 2008. “It would also be strange to find in the midst of a catalog of the rights of individuals a provision securing to the states the right to maintain a designated ‘Militia,’” Scalia wrote. “Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. . . there is no need to deceive ourselves as to what the original Second Amendment said and meant.”55
Like the NRA, Scalia believes that the torrent of guns in America is not the real problem. “The attitude of people associating guns with nothing but crime, that is what has to be changed,” Scalia said in 2006, during his keynote address before the National Wild Turkey Federation’s annual convention at the Gaylord Opryland Hotel & Convention Center in Nashville, Tennessee. “I hope [hunting culture] can be preserved . . . the hunting culture, of course, begins with a culture that does not have a hostile attitude toward firearms.”56 The turkey hunters gave Scalia a rifle, which he valued at $600 in his 2006 annual financial disclosure report.57
Hailed by an adoring gun lobby as “the best friend gun-rights has up there,”58 Justice Scalia has long been a gun enthusiast. He served on the junior varsity rifle team at Manhattan’s Xavier High School, then a Jesuit military academy.59 He is an avid turkey hunter,60 who hunted ducks with former vice president Dick Cheney in 2004 and went on a similar venture in 2001 organized by the dean of the University of Kansas law school. He was criticized for not disqualifying himself from three separate cases, each of which arrived on the Supreme Court’s docket shortly before or after one of his hunting outings—one involving Cheney and two in which the Kansas law school dean was a lead attorney.61 Scalia has been continually dogged with criticisms about his indifference to the appearance of conflicts from early in his judicial career.62 “Since World War II, I think it’s fair to say, the extrajudicial conduct of only three justices have become significantly newsworthy in a harmful way: Fortas, Douglas, Scalia,” Stephen Gillers, who teaches judicial ethics at New York University, told the New York Times in 2004.63
There is an even more direct conflict in Scalia’s aggressive role in the Heller case. In 2007, the World Forum on the Future of Sport Shooting Activities (WFSA) gave Scalia its “Sport Shooting Ambassador Award,” along with a solid silver reproduction of a sixteenth-century pistol with its powder flask.64 He accepted the award and gave the keynote address in Nuremberg, Germany, at the forum’s annual meeting—an international equivalent of NSSF’s SHOT Show. WFSA, an international gun industry trade association, uses its annual ambassador award to improve the gun industry’s image by “making public recognition of the social contri
bution made by some of the many public figures who have a longstanding interest in the shooting sports.”65
There is an appearance of conflict within this appearance of conflict: Scalia was photographed at the meeting with Alan Gottlieb, who is head of the pro-gun Second Amendment Foundation.66 At the very moment of the cozy Scalia-Gottlieb “grip and grin” photo, Gottlieb’s foundation—using Alan Gura, the very lawyer who argued the Heller case before Scalia—was planning a lawsuit attacking Chicago’s gun law. That suit was filed the day after the Heller decision and was eventually decided against Chicago by the Supreme Court.67
Ironically, Gottlieb happens to be a convicted felon (sent up on federal tax charges). When Gottlieb appeared on Fox News’s The O’Reilly Factor to attack the animal rights group PETA’s tax exemption, the organization’s representative zinged the host and Gottlieb with her observation that “of your two guests tonight, there’s only one convicted felon, and that’s not me. Speaking of taxes, Alan Gottlieb went to federal prison for 10 months tax evasion. So that’s what he knows about the tax laws.”68 Gottlieb, who has been described as “a mass-mailing wizard for far-right causes,”69 and “one of the best people in the country on direct mail,”70 was appearing on The O’Reilly Factor in his persona as president of the Center for the Defense of Free Enterprise, a group he co-founded to oppose environmental regulation.71
Fund-raising wizard Gottlieb reportedly advised followers of his technique that “a direct mail letter must appeal to three base emotions: Fear, Hate and Revenge,” and must attack a “bogeyman” because “if you are not frightened, you won’t send money.”72 Gottlieb has made a good living out of his network of foundations and businesses, which collectively gross millions.73