Of Rights and Reasons

Jessie Allen, School of Law, University of Pittsburgh

Book the Second, Chapter 27. Of Title by Prerogative and Forfeiture

This chapter is about hunting. Actually, it’s about not hunting, because the king outlawed it in order to disarm the populace so they could not resist his totalizing sovereign power. As is so often the case, I lack the historical knowledge necessary to assess the accuracy of this claim. But it hardly matters. True or not, here is Blackstone presenting gun regulation as deliberate political subjection, a tool of tyranny. Score one for the National Rifle Association. But wait. No sooner does Blackstone expose the noxious political motives for the English hunting bans, then he proceeds to declare their legitimacy. What is going on?

Blackstone observes that prohibiting hunting seems to violate the “law of nature” under which “every man, from the prince to the peasant, has an equal right of pursuing and taking to his own use” unowned natural resources, including wild animals. II, 411. What’s more, according to Blackstone, the laws against hunting have an illegitimate purpose: to keep the people “in as low a condition as possible, and especially to prohibit them the use of arms.” II, 413. This would appear to violate a second right, noted in the first volume of the Commentaries, namely, the English people’s constitutional right of “having arms for their defence,” which supports “the natural right of resistance and self-preservation.” I, 139.  So what justifies Parliament’s power to prevent English citizens from exercising their natural and constitutional rights? According to Blackstone, it’s just another example of the way rights “may be restrained by positive laws enacted for reasons of state, or for the supposed benefit of the community.” II, 411.

The right to arms was guaranteed by the 1689 English Bill of Rights, but it was not absolute.  It is “a public allowance, under due restrictions,” and only extends to arms “such as are allowed by law.” I, 139.  Can a pretextual hunting ban that functionally disarms most of the populace count as a “due restriction” of the right to have firearms? Blackstone rehearses a list of practical reasons for outlawing hunting – encouraging farming and development, protecting endangered species, preventing “idleness and dissipation” among the country folk. II, 412. But he leaves no doubt that he views the hunting bans as a pretext “for preventing of popular insurrections and resistance to the government, by disarming the bulk of the people,” remarking archly that preventing insurrection “is a reason oftener meant, than avowed, by the makers of forest or game laws.”  Id.  He admonishes us to remember that “however defensible these provisions in general may be, on the footing of reason, or justice, or civil policy, we must not withstanding acknowledge that, in their present shape, they owe their immediate original to slavery.” II, 412.  But the other legal-political shoe never drops. After providing both hypothetically reasonable policy justifications and actually terrible political motives for the hunting bans, Blackstone never ultimately endorses or condemns the laws’ constitutionality.

I was ruminating on Blackstone’s ambivalent approach to gun rights and regulation, when a synagogue near my house was attacked by an automatic-weapon wielding white supremacist, ranting about Jewish support for migrant hordes. He shot and killed eleven people. Guns kill about 40,000 Americans every year, but despite the annual death toll there are layers upon layers of legal protection for gun possession. Many of the laws insulating gun ownership go far beyond what any court would likely find constitutionally required, and local government attempts at regulation are often pitted against state and federal laws protecting gun owners and manufacturers. After the recent synagogue shooting here in Pittsburgh, the city council banned some assault style weapons. That regulation is being challenged in court not as a Second Amendment violation, but as conflicting with a Pennsylvania state statute. The state law prohibits local governments from regulating “ownership, possession, transfer or transportation of firearms” in ways allowed by state law. Twenty years ago, the city defended a similar ban on the theory that it was unconstitutional for the state to prohibit the city from performing the basic functions necessary to fulfill a fundamental purpose for which city government exists, namely, to protect its citizens from getting killed.  The state supreme court shot down (!) that claim as “frivolous,” noting that the Pennsylvania constitution gives the state legislature the power to limit the functions performed by municipal governments and ignoring the substance of the argument. Ortiz v. Commonwealth, 545 PA 279, 285 (1996).

It’s extraordinary how Blackstone’s double-edged assessment of the hunting bans mirrors, or prefigures, the themes of the gun rights debate in the U.S. today. Opponents of gun regulation frame the issue as a matter of constitutional rights endangered by state action. This is basically Blackstone’s story of the pretextual hunting bans that outlaw weapons possession and consolidate illegitimate state power. Even minus the bad political motives, limits on gun possession are suspect in this view, because they trench on constitutionally guaranteed rights and so inevitably increase government power. Proponents of regulation, however, can cite Blackstone’s observation that “it follows from the very end and constitution of society” that gun rights “may be restrained by positive laws enacted for reasons of state or for the supposed benefit of the community.” II, 411. This is more or less the argument advanced by the City of Pittsburgh. From this perspective, both intervention and a failure to intervene are constitutionally fraught policy judgments.

There’s this case that I read every year with my property law class, Miller v. Schoene, State Entomologist (1928). It’s a lawsuit brought by a Virginia woman, Julia Miller, whose ornamental red cedar trees were cut down by the state because they got some kind of blight. In a twist like something out of a YA novel, the blight doesn’t actually harm the ornamental cedars; they are just the hosts. The trees it’s dangerous for are apple trees. The state ordered Miller’s cedar trees destroyed because the blight they were carrying would have destroyed a nearby apple orchard. Miller sues the state, contending that the government can’t just take away her property to save someone else’s, or, if it can, then property rights are a sham. But the Court says, look, it was the cedars or the apples. “It would have been none the less a choice if . . . the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked.”

To me this is the most fascinating part of government: once you’re in it you aren’t just accountable for sending out the men with chainsaws, you’re also responsible for what happens if you decide not to send them. A lot of times there’s a whole lot less to go on than a state entomologist’s report.  It reminds me of my first morning as a law clerk for a judge, who must have been on motion duty that day and so handed me a filing for a woman who was trying to get an emergency injunction to prevent a foreclosure sale of her apartment. The judge said something like, “tell me what I should do about this.”  So I read these motion papers – and there was not a lot of detail there, I mean, the whole thing was maybe five pages long– and I had absolutely no idea what the right legal result would be. I went back to the judge and said, “well, I really don’t know what to tell you. I honestly don’t know how anyone could decide from this whether this woman should lose her home or not.”  And the judge looked at me and said, “What is it that you think we do around here?”

A few weeks ago, the Connecticut Supreme Court upheld a trial judge’s decision allowing a lawsuit to go forward against the manufacturer of the semi-automatic rifle used by a young man who walked into an elementary school in suburban Sandy Hook in spring 2012 and killed 20 first graders. The Connecticut ruling is notable, because a federal statute has long immunized gun manufacturers from responsibility for crimes committed when their guns fall into the wrong hands. The court explained that the killings at Sandy Hook appeared to have resulted from a gun getting into the right hands, that is, exactly the hands for which this semi-automatic assault rifle had been designed and marketed.

The Connecticut court focused on the company’s advertisements for the gun.  In one a guy in fatigues stands silhouetted against the sun, a helmet in one hand, the gun in the other over text that reads, “Your purpose is our purpose.”  Another describes the gun as an “adaptive combat rifle” for use in “an infinite number of extreme scenarios.” And then there’s the “Man Card” campaign, a series of ads featuring a fictional identity card that “declares and confirms” manhood. Stories of men whose cards have been revoked due to insufficiently masculine behavior – eating tofu, jumping at loud noises – appear next to photos of the rifle with the caption CONSIDER YOUR MAN CARD REISSUED. The ads tell a story of uncertain status alternately bestowed and withdrawn by an untrustworthy, emasculating collective authority whose indicia of dignity are no sooner issued than revoked, and the triumphant replacement of those ephemeral badges with authentic firepower that nobody can afford to disrespect. It’s a story we hear over and over these day of aggression as recovery, the necessarily violent recapturing of personhood. Lethal violence as identity formation.

In the months that I’ve been working on this this essay, we’ve had four terrorist attacks on religious congregations and two more on schools. The first shooting was literally around the corner from me. It was strange to be at the center of this storm of international news but entirely focused on local matters, walking up the street to deliver a chicken casserole to grieving friends. When the attacks on the mosques in New Zealand happened, my friends whose congregation was attacked were the first people I thought of. But I still hadn’t called them when the Easter attacks in Sri Lanka burned across the news cycle. Eventually, I wound up having beers with them on the day another gunman walked into another place of worship – this time a synagogue in San Diego. Sitting in the bar, one of my friends got on her cell phone and planned an impromptu vigil, and after dinner we all reconvened to stand in the rain outside the building where six months earlier to the day a guy with a legally purchased assault rifle killed eleven people.

In his book on suffering, Peter Trachtenberg observes that “repetitiveness and open endedness” are considered “hallmarks of traumatic flashbacks.” From a modern, rational-scientific point of view, there is something pathological about this reiteration of only slightly varied versions of the same story that never finally resolves, this endless repeating.  Repetition and lack of finality are also hallmarks of ritual. You could even say that ritual is all about the impossibility of final resolution – that’s why you have to keep repeating it! And as Trachtenberg points out, the people who work closely with trauma victims tend to refute the notion of a once and for all cure. For all the emphasis on telling the story of traumatic injury, the work of actually dealing with trauma seems less like linear narrative and more like ritual, not a finite project but a practice that is never finished, that, like the condition it addresses goes on and on, each iteration only provisionally complete, part of a still unfinished and infinitely expansive cycle, one more bead on an endless string.

Blackstone’s willingness to rationalize rights restrictions based on social policy frustrates idealists who see rights as definitionally more important and more fundamental than ordinary legal and political interests. In this view the whole point of identifying natural or constitutional rights is to create stop gaps, firewalls, bulwarks against oppression, a kind of personal sovereignty that should be every bit as uncompromising as a mad king. Rights are not reasonable – they are, well, righteous. The whole point is that if I have a right I don’t have to listen to your reasons. At the same time, Blackstone’s insistence that rights are somehow categorically different from contingent legal interests frustrates pragmatic legal instrumentalists. They see rights simply as useful constructs that are no more or less real than any legal interest, and that are, and should be, just as open to rational balancing and revision as any legislatively enacted policy. From either of these purist perspectives, it’s possible to envision a narrative that leads to a final resolution of the problem of gun regulation. But anyone who believes in both rights and reason is not likely to see a future in which moral and legal conflict is forever banished.

If, like Blackstone, we are unwilling to give up on either supra-governmental individual rights or rational government regulation, unresolvable contradictions are going to have to be rationalized. This scheme has two faces. Rationalizing rights and policy has often been a matter of explaining away injustice with legalistic nicety. Arguably that is what is going on in Blackstone’s equivocal defense of the pretextual English hunting bans. But the idea that rights and policy should be rationalized is, as Duncan Kennedy observes in his famous critique of the Commentaries, the basis of a utopian project “to discover the conditions of social justice.”  If legal rationalization is going to be anything but a disingenuous cover-up, it is going to have to be rather more like ritual than a story with a once and for all happy ending. It will have to temporarily reconcile conflicting values, rights and interests that exist at variable levels of particularity and generality. Again and again, decision makers are going to have to balance and choose between ideals and concrete eventualities that cannot be conclusively calibrated into a permanent hierarchy of justice: the right to armed self-defense and the freedom to worship and go to school without getting shot, autonomy and security, cedars and apples.

Originally published on May 30, 2019.