“It was all Mrs. Bumble. She would do it,” urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.
That is no excuse,” returned Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.”
If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.” — Charles Dickens, Oliver Twist (quoted in Goodreads).
Comes now Adam Gopnik of The New Yorker, who has written compellingly on subjects ranging from Lincoln, Darwin, French cuisine, the early Christian church and the nature of God, with an ominous new essay up on the magazine’s website headlined “The New, Conservative Supreme Court is Returning to the Second Amendment.” Ex-President Trump appointed three members, all three adherents of the hard-right Federalist Society, to the court. And now it wears his brand as inevitably as any bankrupt casino or fraudulent diploma mill in the land.
Gopnik isn’t a lawyer, but his essay one of the best analyses I’ve seen of what Trump’s Supreme Court is likely to do in a case styled New York State Rifle & Pistol Association v. Corlett, which seeks to overturn New York’s concealed carry law, in force since 1913. Like almost everyone else who has followed the court’s lurch to the hard right, Gopnik fears that “even well-established state laws regulating gun ownership will be burned on the altar of the new individual right to bear arms.”
And he says, I think more chillingly, the New York gun law case fits squarely into a pattern of “assertion of imaginary freedoms” that has also been used to gut public health measures during the Covid pandemic and create an imaginary modern-day “well regulated militia” out of the whole cloth. He adds:
The risk is that even the self-evidently essential right of the people to live in peace without worrying that someone coming down the street is carrying a weapon is under threat from the Court as it’s now constituted, particularly from Justices Amy Coney Barrett and Brett Kavanaugh, whose statements and decisions make clear that they see in the newly redefined Second Amendment something close to an absolute right for Americans to take a gun anywhere they like. (As a federal-circuit judge, Barrett wrote a dissent in which she maintained that even preventing convicted felons from having guns is unconstitutional, unless they can be shown to be “dangerous” convicted felons.)
The assertion of imaginary freedoms in the face of obvious disasters has become the unique signature of the American right. The same liberty not to wear a mask or not to get vaccinated is shared in the insistence that gun regulation be disabled, more and more gun deaths notwithstanding.
We’ll see how it goes when decision comes down. But I think Gopnik is absolutely right about the overall drift of things.
Since Barrett came on the court in November, they’ve already ruled in favor of an extremely narrow spectrum of conservative religious organizations in California and New York, holding that broad limitations on public gatherings to cut down on community spread of a global pandemic violate the First Amendment. And Justice Alito, in a remarkably partisan Nov. 12 speech to the Federalist Society, warned that the First and Second Amendments, in his estimation, are under attack.
“One of the great challenges for the Supreme Court going forward,” Alito added, “will be to protect freedom of speech.” He may well believe what he was saying — he’s sounded the same themes consistently in any number of opinions and dissents — but the facts would seem to be very different.
Recent decisions have in fact asserted a First Amendment fundamentalism that would suggest the contrary. Last month the court ruled, in an unsigned per curiam opinion (in Roman Catholic Diocese of Brooklyn v. Cuomo), that state public health guidelines “single[d] out houses of worship for especially harsh treatment.” Justice Neil Gorsuch, in a concurrence, took it a step further.
“It is time — past time — to make plain that, while the pandemic poses many grave challenges,” Gorsuch said, “there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques.”
He’s got a problem, though: In the world in which most of us live, people don’t ordinarily sing and pray for extended period of time in liquor stores and bike shops. That obvious fact was pointed out in pleadings, but Trump’s majority on the court chose to ignore the weight of evidence.
Before the end of June, the court is also expected to rule in Fulton v. City of Philadelphia, a case involving alleged discrimination against same-sex foster parents which raises the issue of whether Catholic Social Services of Philadelphia can challenge “neutral laws of general applicability […] for violating religious exemptions.” If the court rules it can, warns the American Civil Liberties Union, it “[…] could allow private agencies that receive taxpayer-funding to provide government services — such as foster care providers, food banks, homeless shelters, and more — to deny services to people who are LGBTQ, Jewish, Muslim, or Mormon.” The decision could go either way, but during oral arguments Alito suggested “the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.” Betcha can’t guess which way he’ll vote!
Adam Gopnik’s contribution to the ongoing debate is to point out that the freedoms recently asserted by the Supreme Court are indeed imaginary. He focuses on the broad personal Second Amendment rights the late Justice Antonin Scalia fabricated out of thin air in District of Columbia v. Heller. He explains:
Scalia overturned a century of jurisprudence with an argument based on originalism—choosing to interpret the words as they were allegedly intended at the time of their writing. Before Heller, the consensus was that the purpose of the amendment was to keep the new national government from overriding (or eliminating) local state militias. In 2008, the well-regulated militia was made to stand down, hidden behind a comma, because, as Scalia read the amendment, the Framers had trotted out a completely different set of folks, who do have an individual right to bear arms that, in this new and radical view, shall not be infringed.
As an analysis of an English sentence, this is as absurd as arguing that “To be or not to be, that is the question”—to cite another famous comma clause—has nothing to do with the nature of being (or not being) and is really a comment on the nature of questioning. In fact, Hamlet isn’t asking “What is a question?” He’s asking whether he should kill himself. The Founders weren’t separating the well-regulated militia at the beginning of the sentence from other people who appear at the end of it; they were saying that members of the Rhode Island militia, and their peers in other states, should have the right to carry muskets.
I’m not a lawyer, either. I was an English major, but my dissertation involved English constitutional law in Shakespeare’s history plays. I taught grammar as a TA at the University of Tennessee Knoxville (home of the Harbrace Handbook, which drilled the traditional grammar into my head as well as the students’). I concur that Gopnik’s analysis of the two clauses of the Second Amendment — “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” — clearly reflects the plain sense of the words.
(I think there’s a superfluous comma in there, between “… Arms” and “shall,” but that’s another issue for another day.)
Before I changed majors, I got an MA in history first, and I can offer a reasonable paraphrase of the original language in 1791: “Since we may have to call out the militia if the Brits invade again, we’re gonna make sure folks can hang a musket over the fireplace at home.
So when Gopnik said Justice Scalia got his history wrong, I perked right up (what he said about Hamlet was just icing on the cake). Citing Justice John Paul Stevens’ dissent in Heller, Gopnik said the Second Amendment was clearly and obviously about militias. He added:
In very recent years, more evidence has emerged that, purely on historical grounds, Stevens’s view is the correct one. Two scholars at the University of Chicago have, with hair-raising enterprise and attention to detail, studied how the phrase was employed in its original use in the period. “Using the Google Books corpus, we searched a range of published materials dating from the period between 1760 and 1795 for the phrase ‘bear arms,’ ” they write. They then “classified by hand each of the 181 texts that our search produced according to the following categories: the use or sense in which the phrase ‘bear arms’ was employed (collective, individual, or undeterminable), and the type of subject that accompanied the phrase (plural, singular, or undeterminable).” They discovered that, in sixty-four per cent of those cases, the phrase “bear arms” was “used in a collective sense,” meaning it applied to groups, not individuals. The authors conclude, “In other words, consulting actual historical sources suggests that the context of the Second Amendment had more to do with militias and magazines than with solo householders molding bullets over their hearths.”
Such heroic academic efforts don’t diminish the deeper truth that there is something vaguely absurd about the stress that originalism places on historical research into language. Comically, originalists, Scalia prominent among them, often relied on Samuel Johnson’s Dictionary of the English Language, published in 1755, for reassurance about the eighteenth-century meanings of words. (Scalia cited it in Heller.) Johnson’s dictionary, in fact, is one of the most famously idiosyncratic and contested works of its time. It included deliberately tendentious definitions of words about things or people Johnson didn’t like, along with some that were just wrong, and others that were deliberately opaque. (“Ignorance, Madam, pure ignorance,” was his famous reply to a woman who had asked him for the source of an incorrect definition.)
Another little trip down memory lane: One of the very first courses I took when I was changing majors was a 300-level survey in Dr. Johnson and and his biographer James Boswell. (And here’s a dirty little family secret: I am told my great-great aunts used to whisper to never, ever tell anyone, but we were descended from an illegitimate daughter of Johnson’s who came to America. It’s such a lovely story and I want it so much to be true, I’m afraid to check it out.) So I’m more familiar with the guy than I am with most minor literary figures of 18th-century England, and I’m here to tell you: Gopnik’s right about Dr. Johnson, too.
After I aced the Johnson and Boswell course (got a 4.0 that quarter, I might add), I went on to doctoral coursework in English with a concentration in Shakespeare. With my background in history, I gravitated to the history plays and wound up writing my dissertation on principles of English common law that found their way into Henry IV and other Elizabethan history plays. — mostly Bracton’s dictum that the king is under God and the law, because “there is no rex [king] where will rules rather than lex [law].” What better way to appeal to an English major than an arcane pun in medieval dog Latin? It was titled “Limited Government in English History Plays During the Reign of Elizabeth I, 1558-1603,” and I imagine it’s still gathering dust somewhere in Hodges Library (named for the guy who wrote the first Harbrace) at UT-Knoxville.
At the time, I was writing op ed columns for the UT Daily Beacon and watching the Watergate hearings as Sen. Howard Baker Jr., our senator, talked about the rule of law. I used to joke I was the only guy I knew whose dissertation in Renaissance drama had a fresh news peg.
Another career switch came with the PhD, and I went straight from grad school to a reporting job at my home town newspaper (a couple of towns over, actually), covering county government, courts and the sheriff’s department in an exurban East Tennessee county. Again, I want to stress I’m not a lawyer, but covering the courthouse was like a six-year-long seminar in practical law, conducted mostly by the bailiffs assigned to the courtrooms. At the time, they tended to be retired sheriff’s deputies who had seen it all and didn’t mind sharing at least some of it with a naive young reporter from Oak Ridge.
I also picked up miscellaneous points of law from members of the county’s defense bar over occasional pitchers of beer in a taproom at the old AEC guesthouse back in Oak Ridge after court was adjourned for the day. And when I left Tennessee to take a second MA in journalism at Penn State, my master’s project was on the Sixth Amendment guarantee of a speedy and public trial. (We were more interested in the public part, of course.) But whatever standing I have as a jailhouse lawyer, I owe to the bailiffs back at the Anderson County Courthouse.
After Penn State, a nationwide job search landed me a job as the courthouse beat reporter for the Rock Island Argus. Suspecting there was more to life than writing up perp walks and preliminary hearings, I gradually moved on to other things including the Iowa presidential precinct caucuses; moved to Springfield to write a political column; came to an abrupt parting of the ways with the Springfield paper; taught English and mass communications (including media law) at SCI-Benedictine; and retired in 2012. All of which means I’ve always followed the Supreme Court more closely than the average guy, and I’ve followed it with increasing alarm in the last few years.
In the meantime, I suppose it was probably inevitable that when I retired, I’d start doing historical research again.
Finally, after 20 years when the only writing I did was scribbling “be specific” and “what’s your thesis?” on student papers, I had time for my own writing. So from time to time I’ve been presenting papers like “A Religious Community’s Response to Wartime Nativism: Swedish-American Lutherans in Rock Island at the Onset of World War I” and “Swedes in Roger Williams’ Garden: Acculturation in Immigrant Churches, 1848-1860” at state history conferences.
None of this research has centered on the US Supreme Court, but the Swedes-in-the-Garden paper was about how Swedish pastors adapted to the American system of voluntary associations in the absence of the established state church back in Sweden. First Amendment stuff, in other words. The garden, of course, was a reference to Roger Williams. His biographer John M. Barry explains:
Williams described the true church as a magnificent garden, unsullied and pure, resonant of Eden. The world he described as “the Wilderness,” a word with personal resonance for him. Then he used for the first time a phrase he would use again, a phrase that although not commonly attributed to him has echoed through American history. “[W]hen they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wildernes of the world,” he warned, “God hathe ever broke down the wall it selfe, removed the Candlestick, &c. and made his Garden a Wildernesse.”
He was saying that mixing church and state corrupted the church, that when one mixes religion and politics, one gets politics. Then and there, in London amid civil war, he argued for what he began calling “Soul Libertie.” […]
Which, in essence, is what today we call freedom of religion.
Where Trump’s Supreme Court is drifting into troubled waters, in my opinion, is by injecting politics into its First Amendment decisions, starting with Burwell v. Hobby Lobby in 2014. When you mix constitutional law with politics, as Roger Williams (who was a protege of Sir Edward Coke, after all) might also have said, what you get it politics.
And that, I fear, is what it looks like we’re going to get on the Supreme Court.
One of the books I’m reading for my Swedes-in-the-Garden project, which I’m expanding for possible eventual publication, is Mark DeWolfe Howe’s The Garden and the Wilderness: Religion and Government in American Constitutional History. Author of a two-volume biography of Justice Oliver Wendell Holmes and longtime professor at Harvard Law, Howe has some tart remarks on earlier iterations of originalism, which maintains “all statements in the constitution must be interpreted based on the original understanding ‘at the time it was adopted’.”
That’s impossible, Howe suggests in so many words.
I concur.
Howe puts it like this:
It may be that as a lawyer I take the Court’s distorting lessons in American intellectual history too seriously. I must remind you, however, that a great many Americans — lawyers and non-lawyers alike — tend to think that because a majority of the justices have the power to bind us by their law they are also empowered to bind us by their history. Happily that is not the case. Each of us is entirely free to find his history in other places than the pages of the United States Reports. —
I never thought it would come to this, but I’m afraid we now may be approaching a point where the court’s First- and Second-Amendment fundamentalists indeed bind us by their pseudo-historical fantasies of unfettered “imaginary freedoms.”
Works Cited
John M. Barry, “God. Government and Roger Miller,” Smithsonian Magazine, Jan. 2012 https://www.smithsonianmag.com/history/god-government-and-roger-williams-big-idea-6291280/.
Adam Gopnik, “”The New, Conservative Supreme Court is Returning to the Second Amendment,” New Yorker, May 7, 2021 https://www.newyorker.com/news/daily-comment/the-new-conservative-supreme-court-is-returning-to-the-second-amendment.
Mark DeWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Tennessee Press, 1965), 4-5.
[Revised and published May 13]
Ordinary Time 