{"id":4239,"date":"2020-11-04T17:10:33","date_gmt":"2020-11-04T22:10:33","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=4239"},"modified":"2020-11-04T17:10:33","modified_gmt":"2020-11-04T22:10:33","slug":"of-rights-and-reasons","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/11\/04\/of-rights-and-reasons\/","title":{"rendered":"Of Rights and Reasons"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

Book the Second, Chapter 27. Of Title by Prerogative and Forfeiture<\/em><\/strong><\/a><\/p>\n

This chapter<\/a>\u00a0is about hunting. Actually, it\u2019s about\u00a0not<\/em>\u00a0hunting, 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?<\/p>\n

Blackstone observes that prohibiting hunting seems to violate the \u201claw of nature\u201d under which \u201cevery man, from the prince to the peasant, has an equal right of pursuing and taking to his own use\u201d unowned natural resources, including wild animals. II, 411. What\u2019s more, according to Blackstone, the laws against hunting have an illegitimate purpose: to keep the people \u201cin as low a condition as possible, and especially to prohibit them the use of arms.\u201d II, 413. This would appear to violate a second right, noted in the first volume of the\u00a0Commentaries<\/em>, namely, the English people\u2019s constitutional right of \u201chaving arms for their defence,\u201d which supports \u201cthe natural right of resistance and self-preservation.\u201d I, 139.\u00a0 So what justifies Parliament\u2019s power to prevent English citizens from exercising their natural and constitutional rights? According to Blackstone, it\u2019s just another example of the way rights \u201cmay be restrained by positive laws enacted for reasons of state, or for the supposed benefit of the community.\u201d II, 411.<\/p>\n

The right to arms was guaranteed by the 1689 English Bill of Rights, but it was not absolute.\u00a0 It is \u201ca public allowance, under due restrictions,\u201d and only extends to arms \u201csuch as are allowed by law.\u201d I, 139.\u00a0 Can a pretextual hunting ban that functionally disarms most of the populace count as a \u201cdue restriction\u201d of the right to have firearms? Blackstone rehearses a list of practical reasons for outlawing hunting \u2013 encouraging farming and development, protecting endangered species, preventing \u201cidleness and dissipation\u201d among the country folk. II, 412. But he leaves no doubt that he views the hunting bans as a pretext \u201cfor preventing of popular insurrections and resistance to the government, by disarming the bulk of the people,\u201d remarking archly that preventing insurrection \u201cis a reason oftener meant, than avowed, by the makers of forest or game laws.\u201d\u00a0\u00a0Id.<\/em>\u00a0 He admonishes us to remember that \u201chowever 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.\u201d II, 412.\u00a0 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\u2019 constitutionality.<\/p>\n

I was ruminating on Blackstone\u2019s ambivalent approach to gun rights and regulation, when a synagogue near my house was\u00a0attacked\u00a0<\/a>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\u00a0annual death toll<\/a>\u00a0there 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\u00a0regulation<\/a>\u00a0is being challenged in court not as a\u00a0Second Amendment\u00a0<\/a>violation, but as conflicting with a Pennsylvania\u00a0state statute.<\/a>\u00a0The state law prohibits local governments from regulating \u201cownership, possession, transfer or transportation of firearms\u201d 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.\u00a0 The state supreme court shot down (!) that claim as \u201cfrivolous,\u201d 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.\u00a0Ortiz v. Commonwealth<\/a><\/em>, 545 PA 279, 285 (1996).<\/p>\n

It\u2019s extraordinary how Blackstone\u2019s 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\u2019s 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\u2019s observation that \u201cit follows from the very end and constitution of society\u201d that gun rights \u201cmay be restrained by positive laws enacted for reasons of state or for the supposed benefit of the community.\u201d 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.<\/p>\n

There\u2019s this case that I read every year with my property law class,\u00a0Miller v. Schoene<\/a><\/em>, State Entomologist (1928). It\u2019s 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\u2019t actually harm the ornamental cedars; they are just the hosts. The trees it\u2019s dangerous for are apple trees. The state ordered Miller\u2019s 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\u2019t just take away her property to save someone else\u2019s, or, if it can, then property rights are a sham. But the Court says, look, it was the cedars or the apples. \u201cIt 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.\u201d<\/p>\n

To me this is the most fascinating part of government: once you\u2019re in it you aren\u2019t just accountable for sending out the men with chainsaws, you\u2019re also responsible for what happens if you decide not to send them. A lot of times there\u2019s a whole lot less to go on than a state entomologist\u2019s report.\u00a0 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, \u201ctell me what I should do about this.\u201d\u00a0 So I read these motion papers \u2013 and there was not a lot of detail there, I mean, the whole thing was maybe five pages long\u2013 and I had absolutely no idea what the right legal result would be. I went back to the judge and said, \u201cwell, I really don\u2019t know what to tell you. I honestly don\u2019t know how anyone could decide from this whether this woman should lose her home or not.\u201d\u00a0 And the judge looked at me and said, \u201cWhat is it that you think we do around here?\u201d<\/p>\n

A few weeks ago, the Connecticut Supreme Court upheld a trial judge\u2019s 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\u00a0Connecticut ruling<\/a>\u00a0is 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\u00a0right<\/em>\u00a0hands, that is, exactly the hands for which this semi-automatic assault rifle had been designed and marketed.<\/p>\n

The Connecticut court focused on the company\u2019s advertisements for the gun.\u00a0 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, \u201cYour purpose is our purpose.\u201d\u00a0 Another describes the gun as an \u201cadaptive combat rifle\u201d for use in \u201can infinite number of extreme scenarios.\u201d And then there\u2019s the\u00a0\u201cMan Card\u201d campaign<\/a>, a series of ads featuring a fictional identity card that \u201cdeclares and confirms\u201d manhood. Stories of men whose cards have been revoked due to insufficiently masculine behavior \u2013 eating tofu, jumping at loud noises \u2013 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\u2019s a story we hear over and over these day of aggression as recovery, the necessarily violent recapturing of personhood. Lethal violence as identity formation.<\/p>\n

In the months that I\u2019ve been working on this this essay, we\u2019ve 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\u00a0attacks on the mosques in New Zealand<\/a>\u00a0happened, my friends whose congregation was attacked were the first people I thought of. But I still hadn\u2019t called them when the\u00a0Easter attacks in Sri Lanka\u00a0<\/a>burned across the news cycle. Eventually, I wound up having beers with them on the day another gunman walked into another place of worship \u2013 this time a\u00a0synagogue in San Diego<\/a>. 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.<\/p>\n

In his\u00a0book on suffering<\/a>, Peter Trachtenberg observes that \u201crepetitiveness and open endedness\u201d are considered \u201challmarks of traumatic flashbacks.\u201d 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. \u00a0Repetition and lack of finality are also hallmarks of ritual. You could even say that ritual is all about the impossibility of final resolution \u2013 that\u2019s 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.<\/p>\n

Blackstone\u2019s 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 \u2013 they are, well, righteous. The whole point is that if I have a right I don\u2019t have to listen to your reasons. At the same time, Blackstone\u2019s insistence that rights are\u00a0somehow<\/em>\u00a0categorically 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\u2019s 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.<\/p>\n

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\u2019s equivocal defense of the pretextual English hunting bans. But the idea that rights and policy\u00a0should be<\/em>\u00a0rationalized is, as Duncan Kennedy observes in his famous\u00a0critique of the\u00a0Commentaries<\/em><\/a>, the basis of a utopian project \u201cto discover the conditions of social justice.\u201d\u00a0 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.<\/p>\n

Originally published on May 30, 2019.<\/a><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh Book the Second, Chapter 27. Of Title by Prerogative and Forfeiture This chapter\u00a0is about hunting. Actually, it\u2019s about\u00a0not\u00a0hunting, because the king outlawed it in order to...<\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,79,492],"tags":[490,489,132,200],"class_list":["post-4239","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-news","category-william-blackstone","tag-jurisprudence","tag-law-and-philosophy","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-16n","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4239","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=4239"}],"version-history":[{"count":1,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4239\/revisions"}],"predecessor-version":[{"id":4240,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/4239\/revisions\/4240"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=4239"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=4239"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=4239"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}