Legal Positivism, Relativism, and Nominalism


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.

U.S. Constitution Amendment II

When the legal history of the 20th century is objectively spelled out at some distant time, it will be remembered as the age dominated by the anti-concepts of legal positivism, relativism and nominalism, which are listed under the pop culture tag of "judicial activism." Indeed, how can judges not be "active" when they are asked to apply words, concepts, and constructions — which under the current jurisprudential framework of belief have no inherent constraints or meanings — to concrete, real-life occurrences. The movers and shakers of the American bench are repulsed by the notion of natural law and have taken seriously Nietzsche’s admonition, "I am afraid, that we are not free from God, because we still believe in grammar." Their free-style method of interpretation and abandonment of the age-old "plain meaning" rule for reading law is nothing more than a frantic attempt to escape their greatest fear — the concept of natural law.

Yet in that century which saw such a flurry of innovations in the law through notable case law, it is ever so peculiar that the Supreme Court only heard one Second Amendment case during the 20th century — United States v. Miller.

There is a legal maxim that "bad cases make bad law." "Bad cases" are those cases with fact patterns which are distorted from the norms of everyday life and lead to absurd results. However, oftentimes "bad cases" are exactly the kinds of cases which are sought to be brought before the Court, so that questionable, but highly desirable, legal results can be foisted upon the people. Such was Miller.

The backdrop of the Miller case is the late 1930s. Amongst FDR’s usurpatious New Deal legislation was The National Firearms Act, which made illegal certain types of firearms (relevant here is a shotgun with a barrel less than 18 inches) without a stamp purchased from the Federal government. The stamp for the shotgun cost $200, while a shotgun at that time cost around $20. (I will refrain from exploring the utterly delicious irony that this country was founded by individual gun owners who revolted against having to pay outrageous taxes to the government in the form of stamp purchases.)

What made the case "bad" was that two men with extensive criminal backgrounds, Jack Miller and Frank Layton, were the defendants in the case. The duo was charged with

unlawfully, knowingly, willfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm . . . and not having in their possession a stamp-affixed written order for said firearm . . . contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

Miller and Layton claimed that The National Gun Act was violative of the Second Amendment and the Federal District Court for the Western District Arkansas agreed. The Feds appealed to the Supreme Court.

While this was a "bad case" in that it featured putative gangsters claiming a right to firearms, what makes it worse is that the case was decided, 1930s show-trial style, without an appearance by Miller and Layton before the Court or even a brief submitted by their lawyers. Even with the scales thus tipped in their favor, the best the Feds could get from the Supreme Court was a ruling that there was no evidence presented by the (absent) Defendants that a "sawed-off" shotgun was the type of weapon which would be used in a militia. Therefore, as the Second Amendment protections had as their predicate "a well regulated militia," Congress was free to regulate this weapon which was not shown to have a militia purpose. All this despite the fact that the shotgun had had a prominent place in the Civil War and additionally that the federal government had purchased 19,600 shotguns as late as World War I.

The rule established by Miller would seem to be that if a weapon has a military application, then the right to possess such an arm should not be infringed upon. But, needless to say, it was not interpreted in that way. Instead Miller was read as an imprimatur for gun control which reached its zenith in 1976 when the District of Columbia passed the most restrictive gun control law in the nation — a law which a young Congressman from Texas, Ron Paul, stated was "flat-out illegal" and would "be thrown out" when challenged in the court system. While Paul’s prediction has yet come to pass, it may yet come to fruition in the case of Parker v. District of Columbia.

Parker represents a test case with normative facts — a run-of-the-mill citizen with no criminal record who merely wants to have a gun in his home. As a result of these "good facts," a three-member panel of the U.S. Court of Appeals for D.C. struck down the District’s gun control law on Second Amendment grounds. The District plans to appeal to the Supreme Court. The case was developed and funded by Cato Institute scholar Bob Levy as one which would hold the Supreme Court’s feet to the fires of liberty. However, the case has been a target for jurisprudential sabotage on two fronts.

The first attack comes from Congress where Senator Kay Bailey Hutchison and Representative Mark Souder have introduced "The District of Columbia Personal Protection Act." The Act would use Congress’s power to require D.C. to strike down the D.C. gun control law, thereby rendering the issue in Parker moot and unable to be entertained by the Supreme Court. Why would a couple of Republicans be helping to scuttle a case that could force the Supreme Court to acknowledge gun rights? Why indeed.

The second assault came from the National Rifle Association. The NRA apparently tried to convince Levy not to file the test case in the first place, ostensibly because of a fear that the Supremes might uphold the law opening a Pandora’s box of gun control around the nation. But the NRA didn’t stop its opposition when Parker was filed. They attempted to sabotage the suit by filing their own test case, Seegars v. Ashcroft, with a much inferior fact pattern which would allow the Supreme Court to waffle on the issue of gun control. Not stopping with their own watered-down case, the NRA tried to have Seegars consolidated with Parker. That effort failed.

One is left to ponder from their behavior whether the NRA was concerned about an adverse ruling from the Court or whether they where concerned about a favorable one. If there were no more gun control, would the NRA continue to receive the same financial support to which it has grown accustomed? Has the NRA succumbed to being the professional paid opposition to the government, receiving a perverse form of corporate welfare from the government gun control racket? If so, the Constitution doesn’t need friends like the NRA.

The current state of Second Amendment jurisprudence is an exemplar of much of constitutional jurisprudence today. The plain meaning of the Constitution is first whittled away by cases so factually flawed that they lie far outside the normative existence of most Americans. Once "bad law" is made by the "bad case," the holding is enshrined via the concept of stare decisis and extended in application. While this pattern may seem to make about as much sense as training medical students using the anatomy of the severely deformed, it is not without a purpose. Cui bono? Without fail, the bad cases that make bad law consistently extend the power and scope of government entities at the expense of individual citizens, the People.

All of this is not happenstance. This is tyranny, the tyranny of relativism. Judicial relativism naturally and inevitably leads a tyrannical Court which is incapable of issuing opinions, only ukases. Until the people themselves embrace the idea of liberty as a real, possible and desirable condition for their lives, liberty will not come. The Parker case may or may not affect that body of writing called American Constitutional Law, but the right to self-protection vis-à-vis gun ownership ultimately transcends mere positive law. However, Americans will never rise to the heights of freedom envisioned by our founders until not merely our persons are armed, but more importantly our minds.

C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.