The caller said he had been referred to me by the local sportsmen’s association. He was having a problem getting his gun license and he wanted to ask me a question. I should have told him to make an appointment rather than talking to him on the telephone. Thinking the question might be simple, I asked him the nature of the problem. That was a mistake. He launched into a long winded story that seemed to recount most of his life’s history. Finally I said, “Stop. Get to the point.”
It seems that when he went to apply for his pistol permit, which is required in my state, he was denied a permit because the police discovered that the caller had an old felony conviction. The caller could not see why he could not get a permit. He kept saying he had a “Constitutional” right to have a gun. I explained to him that because of the felony conviction he was prohibited from having a license and from possessing a gun.
“What about my Second Amendment right?” he protested. “They do not have the right to go against the Constitution … and the Constitution says I have the right to have a gun. ”
I tried to explain but the caller simply lectured me on the Constitution and his “rights.”
People who have not gone to law school seldom understand the law. Law schools teach their students a method of approaching legal issues which is different from the way non-lawyers look at problems. Law students learn, among other things, how imprecise language is.
The term “law,” for example, has many meanings. There are the “laws” of physics which we must all obey. There are the “laws” of God as set forth in the Holy Book. There is the “law” of the jungle. There is the “law” of nations, which sets rules for governments to follow. There is the “common law” which is the community’s historic standards of conduct. There is statutory “law” which is imposed by governments. There are the “laws” your mother set out for you as a child.
If you attempt to violate the laws of physics you will probably get hurt. If you violate the laws of God, you might burn in Hell. In the “jungle,” a place where collective protection through government does not exist, the strong eat the weak. If you violate the laws of nations, you could be imprisoned or executed for “war crimes.” If you violate statutory law, you could go to jail. If you disobey your mother, well!
Law is really about force. That is, it is about using force to compel behavior. There is always a “punishment” for violating the “law.” As the philosopher Pascal said, “Law without force is impotent.”
The only exception to the premises that law is about the collective use of force is the “law” of the jungle. The law of the jungle is, in reality, anarchy, or no law. Philosophers call this a state of “nature.” It has been described as a state in which there is a constant “war of all against all.”
Kings and dictators are an outgrowth of the “law of the jungle.” Originally a person became king by being the strongest person in the community. The king ruled by force. People will willingly obey any dictator who can establish a modicum of peace because some order, even that of a tyrant, is better than anarchy. With peace, people can accumulate property, go about their business, and live with moderate personal safety. When one of the kings of France said, “I am the law,” he was correct. What he said was law. If you disobeyed his order, the consequences were severe.
In the seventeenth century, philosophers developed a theory of “natural law.” Natural law is philosophical. It constitutes the God-given rights which transcend governments and sit above laws created by governments. The right not to be enslaved, the right not to be imprisoned without due process, the right of life and self defense, the right to own property, the right to privacy, the right to freedom of belief are all natural rights given by God to all mankind. Although these “rights” can be taken from you by force, such use of force is “wrong.”
Natural law was used to justify revolution from absolute authority. When Charles I of England was beheaded by his subjects in 1649, the act was justified on the basis that Charles had violated “the law.” At that time the concept that kings and governments were limited in what they could do was novel. Without the concept of natural law, those who opposed a tyrannical ruler were simply traitors to society. The acceptance of Natural Law was key to the American Revolution. Our Declaration of Independence is one of the finest statements of Natural Law ever set on paper. It set forth the right of revolution based upon the philosophical “rights” of mankind.
In many societies today, the concept of NaturaI Law is not accepted. Obedience to authority is the rule. Sometimes Americans look at dictators in other parts of the world and ask themselves, “Why don’t the people rise up and throw out the dictator?” In some instances the answer is, the people in those countries believe obedience to authority is just and is required by the community values. They have no basis to believe that it would be right to overthrow even the most corrupt government.
Many people in the world are denied rights that Americans would consider God-given rights. Most often, but not always, these rights are denied by governments. Even the United States government has violated these rights from time to time.
The Bill of Rights in the United States’ Constitution was set up to protect certain of your “natural rights.” These rights included freedom of conscience, freedom of assembly, freedom from arbitrary government action, freedom of expression and the right to have arms. It is important to understand that the Constitution did not give you these rights. Under our theory of government these are God-given rights that the government was charged with protecting. Words, however, are meaningless unless someone enforces them. Under natural law, the alleged terrotist prisoners we are holding without trial in Cuba have the same natural fights as American citizens. It is morally and “legally” wrong to hold them without trial under a concept of natural law. We continue to hold those prisoners because there is no force willing or able to prevent us from doing so. Law without force is impotent.
All of this, however, is philosophy. Law is about the application of force. The courts are about determining when and how the force of the law should be applied. On a basic level, law is what a judge (or jury) says it is. If a bureaucrat does something he or she should not do, you have two options. You may complain to the supervisor of the bureaucrat. Or, you may take the bureaucrat to court. If a court does something you do not like you may appeal to a higher court or you may go to a legislative body and try to change the law. In the United States, the ultimate supervisor is the electorate. All government is responsible to legislative bodies .who control their funding and have the power to abolish their positions. Legislators (be it a Congressman or selectman) are elected by the people. Good government begins and resides with an informed and involved voter.
Judges are not the representatives of the people even in those areas where they are elected. Judges are the last remnants of kings. In olden days the king would hold court to settle disputes among his subjects. Eventually, the king delegated his authority to judges. In much of the United States, judges are still appointed.
Judges are people just like the rest of us. Some are good and some are bad. They come to the bench with all the prejudices and shortcomings that mankind is subject to. Some are incredibly intelligent, some are not. There is nothing more frustrating than to argue a case before a judge who falls asleep during your presentation.
Judges do not work with legal theory; they work with the direct and practical application of law. Their view of the law is linked to the results they wish to see in a particular case. Theirs is a world filled with people who have been robbed, murdered, or cheated. They create the law as it is applied. The law as it is applied, is the law that governs our day to day behavior. If we disobey that law, we suffer negative consequences. It may not be fair, but it is true.
There are two ways of changing the law as it is set out by a court. One is to appeal to a higher court, the other is by legislation. When people try to change statutory law through the courts, they are admitting that they lack enough public support to get the change they want through legislation.
Attempting to change the common or statutory law through the courts is risky. In addition to a quagmire of legal rules that have to be navigated, in addition to the high legal fees, which are generated by such appeals, there is also the personality of the judge.
Some people with little knowledge of the law think that they can take their own case to court. Because they have read the Constitution, they believe they can argue its great philosophical questions to the Court. They believe that the enlightened judges will support the Constitution as the purist believes it should be interpreted.
Nothing could be further from the truth. Often people who try to represent themselves (called “pro se“) take extreme legal positions. Such positions are usually rejected by judges. Not only do pro se litigants frequently lose their lawsuits, they often create bad law because they do not frame issues correctly or because they do not have the finances to rake a bad ruling to the next level of appeal.
Challenging existing laws in court must be carefully planned. The case appealed should have narrow and clearly defined legal issues. The person taking the appeal should be someone the court wants to help. That is, the underlying facts which drive [he case should create sympathy with the judges. The litigant who challenges a law because he does not like it is less likely to succeed than the litigant who is being unfairly hurt by a law.
The issues presented to the court should be framed in terms of values the judges ate known to uphold. The judges should want to achieve an end result that will require them to uphold the principals you are trying to establish. A clear, practical, public interest should exist if you want the court to rule in your favor. A ruling against you should create a result, which would offend a reasonable person’s sense of fair play and justice.
Much of the battle on gun control has shifted to the courts. Many of the suits against gun manufacturers were defeated because courts could see that allowing lawyers to sue a manufacturers because a third parry misused the product is a threat to our national economy. The judges involved may not have liked guns, however they realized that the principals argued against gun manufactures could be applied against other industries with disastrous results for the American public.
Judges are now beginning to see that defining the word “People” in the Constitution as being the “States” has the same potential for harm to our society. If the question is properly framed, there is a good chance the Supreme Court will rule that the word “People” in the Second Amendment means the individual people of the United States. That ruling, however, is not the end of the argument on gun control. Poorly presented court challenges to gun laws could make any finding that the Second Amendment protects an individual right meaningless.
Yelling “FIRE” in a crowded theater when there is no fire is not protected by the First Amendment. Under the same principal, legislating restrictions on guns would not be per se prohibited by a favorable ruling on the Second Amendment. The questions will become, “What regulations are ‘reasonable’ given police powers necessary to protect the public?”
The anti-gun forces are already waging war at this level. If you had not noticed, every hair-brained proposal they make, no matter how draconian, is described as a “reasonable” regulation. The more times we challenge what a fair-minded person would consider a reasonable restriction on gun owners in court and lose, the less the Second Amendment will mean. That is, the Amendment will be “reasonably” regulated until there is nothing left. The concept of “reasonable restriction” is contained even in those cases on gun rights that we have won.
If we want to investigate the Second Amendment through the courts, we must be careful of the cases we pick to bring before the courts. The parties who bring the actions should be good people whom the courts will want to help. The issues we raise in court should impact on real problems that will result in a tangible, unjust result that will hurt the person bringing the suit if the court rules against them. People should not try to bring such suits without lawyers and they should not bring them unless they are willing to hang in until the bitter, and expensive, end.
This article was reprinted from Women&Guns Sep-Oct, 2003, Copyright © 2003, Karen MacNutt
