The Second Amendment in Kentucky

Still thinking of Antonin Scalia (link), I’m remembering Rodes K. Myers, late distinguished Kentucky lawyer, and his client, General Henry Denhardt, and Septmeber 21, 1937, the night before the scheduled second trial of Denhardt on a charge of murdering his ladyfriend, the widow Verna Garr Taylor. Both Denhardt and Taylor passed as dues-paying members of the Bluegrass Aristocracy in the Kentucky of their time (Myers was a bit more dodgy). Taylor was, by popular account “the most beautiful woman Henry and Oldham counties.”

Be that as it may, somebody put a bullet through her. It might have been suicide; it might have been Taylor: he was indicted for murder but a jury hung 7-5 in his favor at his first trial.  Regrettably for Denhardt, Taylor had three brothers with a keen sense of their Second Amendment rights. The night before Denhardt’s second trial, Myers and Denhardt were walking back to their hotel. Myers remembers shouting:

“Lookout, General! There’s the Garr brothers!”

As Denhardt reached for the hotel door, seven shots rang out, striking Denhardt in the back and head. But it was Myers who is the focus of our particular attention here. For by all accounts, it was he who whirled around to face the Garr brothers and to remonstrate with the immortal phrase:

“Don’t shoot me, I’m a lawyer!”

The late George Hendon of Louisville, a cultivated and civilized lawyer with only a moderate taste for his own profession, wrote a priceless song with that as a chorus, which song, sadly, I cannot locate in my office or via Google.

Anyway, Scalia. As I said in an earlier post, I am impressed that he seems to think that keeping guns out of government offices is a good thing. Now, don’t misunderstand me here: I think keeping guns out of government offices is a very good thing, to be strongly encouraged and implemented by a wise government under law.

But as I argued before: I think a central premise of the gun rights movement must be that it is not a good thing. Why, exactly, do we need weapons, anyway? I don’t think even Scalia would argue for a constitutional right to murder our loved ones (though I’m with Mrs. Billy Graham on this one). The whole point is that for a citizenry without weapons, the government cannot be trusted—and so we have to be prepared to take the law into our own hands (if you think I’m defaming the gun rights crowd, try this Google search). Of course Scalia would feel better if he was certain that the lawyer (or the client—or come to think of it, the colleague) in his courtroom was not packing a piece. But for a strong-form Second-Amendment originalist, I should say that denying this right drops his argument into incoherence.

Sequel: One of the Garr brothers was put on trial for the murder. His lawyers didn’t deny the facts. One of them said: “It isn’t a shame that Kentuckians are quick on the draw. It’s an honor sometime.” After deliberating an hour and 15 minutes, the jury agreed, and acquitted the accused.

Source: Oddly enough, the Myers/Denhardt story is not widely represented on the web; here’s the only full account I can find. The song doesn’t seem to be there at all, but it is in my skull as I write.

Scalia the Wimp

“Nuance” is back and the Republicans are loving it. After eight years of government on a policy of no-nuance, Obama has suggested that he wants to “nuance” his policy in the Middle East, and the wingers dancing with malevolent glee. Not a manly thing to do, this nuance stuff: start down that road and you end up a pussy like Colin Powell.

I reflected on this point as I read Justice Scalia’s opinion in D.C. v. Heller, the Supreme Court’s new gun rights case (link). Now, if ever there was a manly guy who could be trusted not to sink into the bog of subtlety, one would think it would be ol’ high-saliency Scalia. Therefore it is with consternation that I read some of the law French in the back end of the Heller opinion where Scalia lets slip just what a sissy he can be.

For example, here is Scalia saying that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Felons, you say? You really going to keep handguns away from, say Martha Stewart, just because of a few thoughtless comments about her portfolio? And what's all this cop-out talk about "metally ill"? Aren’t the so-called “mental health” laws exactly the thing that nanny state uses to keep free thought in harness?

“Or,” Scalia continues, nothing prevents “forbidding the carrying of firearms in sensitive places such as schools and government buildings." Wait a minute, whoa—isn’t the precise point of the Second Amendment, the fact that we can’t trust all those pinheads in Washington to protect our fundamental freedoms? The mere fact that he may feel more comfortable if I am not allowed to come packin’ heat when I visit the Supremes—that fact should hardly be allowed to trench upon an immutable right.

“Or”—he isn’t done yet—“laws imposing conditions and qualifications on the commercial sale of arms.” I’d say that if the gun-show crowd ever gets its hands on that one, Scalia better make sure he has an unlisted phone number and a high security fence.

But the oddest part of the opinion may concern what you could call the “proton pack” rule—the question whether Bill Murray can go busting ghosts with an untested nuclear weapon on his back (link). A principled originalist might find himself caught in a cleft stick on this one; not so Scalia. He first considers whether the Second Amendment protects “only those arms in existence in the 18th century.” He dismisses that one as “bordering on thee frivolous.” You can almost hear Bill Murray’s lewd chuckle at that one, but he’d be premature—moments later, Scalia is declaring that the Second Amendment, while not limited to the blunderbuss, still may not extend to protect military weapons in private hands—or, to put it more directly, may not protect the private ownership of precisely those weapons that you would need to equip a “well-regulated militia.”

Don’t misunderstand me, some would say that Scalia is right to make this kind of discrimination, allowing, say, weapons appropriate for mere domestic violence, while barring, say, weapons that might be useful in taking out a Federal building. Such a result might be characterized as prudence—a balancing of interests and traditions, seasoned with wisdom and mature good judgment.

But wisdom and mature good judgment are precisely the perspectives on which Scalia, at least publicly, likes to heap such scorn. Serious gun nuts Constitutionalists had better keep their hands on the trigger: ol’ Nino has gone all girly.

Scalia Index Proves it: Federal Judges Happy With Pay

I see that Justice Scalia believes that the rate at which innocent people are convicted of felonies is 0.027 percent (link). He arrives at this number through dividing the number of overturned murder and rape convictions by the number of all convictions. By the same logic, I can compute an index of dissatisfied Federal judges: I divide the number who have left the bench against the number of all lawyers. I come up with a dissastisfaction rate of 10 to the minus 0.03447 +/- three billion, which looks like “pretty happy” to me.

[Responding to critics: yes, not all lawyers are not Federal judges. But there is no indication that non-lawyer judges would be dissatisfied if they were Federal judges, so I might as well shovel them into the denominator. Note also that all my numbers are plucked out of the air. Scalia’s are not, but might as well be.]