Web exclusive 5/24/02
Making the case
The lawlessness of today's racial quota and gun control liberals may be coming under serious challenge
By Michael Barone
Two recent legal developments–a decision by the United States Court of Appeals for the Sixth Circuit and a brief filed by the Solicitor General–seriously undermine the assumptions on which two
policies passionately backed by liberals are based: racial quotas and preferences and gun control. Neither comes out and opposes those liberal policies as unconstitutional; the Sixth Circuit by a 5-4 vote
upheld the University of Michigan Law School's racial preferences, and the Solicitor General urged that the Supreme Court not hear a case in which the Fifth Circuit Court of Appeals upheld a conviction under a federal gun law. But the reasoning in the Sixth Circuit dissent and
the Solicitor General's brief both make overwhelmingly strong cases that constitutional interpretations on which these two liberal policies have relied are flimsy, cases that the Supreme Court will sooner or later will have to consider.
The Sixth Circuit in Grutter v. Bollinger reversed a District Court decision overturning the University of Michigan Law School's racial preferences (another District Court had upheld the University's use of racial preferences in undergraduate admissions; presumably the Sixth Circuit will uphold that some time soon). The decision puts the Sixth Circuit clearly in conflict with the Fifth Circuit, which in Hopwood v. Texas in 1996 overturned the University of Texas
Law School's use of racial preferences, and it is exceedingly likely that the Supreme Court will feel compelled to hear this case and resolve the conflict between the circuits.
The first thing the justices will notice when they review the case is the weakness of the majority argument written by Chief Judge Boyce Martin and the strength of the dissent written by Judge Danny Boggs. Judge Martin relies on the 1978 Supreme Court of Regents of the University of California v. Bakke, the only case in which the Supreme Court has ruled on racial quotas and preferences in higher education. But Bakke sends an uncertain message. Four justices in Bakke (including Chief Justice Rehnquist and Justice Stevens) held that the racial quotas and preferences used by the University of California at Davis's Medical School were unconstitutional racial discrimination. Four justices (with the lead opinion by Justice Brennan) ruled that they were constitutional as a means of remedying past discrimination. Justice Powell cast the deciding vote. He ruled that the quotas were unconstitutional, but he also opined that a college or university might use race as a "tipping point" fact to produce "diversity" on campus. No other justice concurred with the part of Powell's opinion in which he endorsed discrimination to produce "diversity."
The University of Michigan said that it used racial quotas and preferences only for "diversity." It pretty much had to: The University of Michigan has never (except for the current quotas and preferences)
discriminated by race in its history. Judge Martin relied on Powell's "diversity" dictum–dictum is language in a judicial decision that is not necessary to determine the outcome of the case–to uphold the quotas. But as Judge Boggs pointed out, it is absurd to say that one justice's dictum, never endorsed by any other member of the Supreme Court, is a Supreme Court precedent. Judge Martin's footwork is not nearly fancy enough to persuade a neutral observer that one justice's dictum never endorsed by another justice should be regarded as Supreme Court precedent.
Judge Martin's opinion also glosses over the inconvenient facts that make it clear that the University of Michigan Law School, while denying it was doing so, employed racial quotas. Judge Boggs brings the numbers out in plain view and makes it clear what has been going on. And of course out-and-out quotas (as opposed to preferences) were clearly regarded as unconstitutional by a five-justice majority in Bakke. Judge Boggs also highlights the University of Michigan's use of the concept of a "critical mass" as a justification for racial discrimination. The university claimed that it must have an undefined "critical mass" of blacks, Hispanics, and Native Americans (Asians and other groups that have been discriminated against in American history are not regarded as minorities requiring help through racial discrimination by the university) for students of that description to be comfortable. It is as if Michigan in 2002 were Mississippi in 1964, with nonminority students seething with hatred toward minority students, and the latter in need of protection by increased numbers. But, as Judge Boggs points out, there is no stopping point here. Advocates of racial quotas and preferences have argued that black students will feel uncomfortable if there are only 3 percent blacks in a class but will feel comfortable
if there are 8 percent blacks in a class. But why should it make so much difference if a class is 97 percent or 92 percent nonblack? Judge Boggs points out that the doctrine of proportionate representation
of favored minorities leads inevitably toward the exclusion of qualified nonminority students, notably of Jews, who are present in law schools in numbers very much larger than their proportion of the population. The University of Michigan's system, he argues persuasively, leads to the exclusion of Jews by quota as advocated by Harvard President A. Lawrence Lowell in the 1920s and followed by Ivy
League universities until the 1960s. Do Justices Breyer and Ginsburg want to go back to those days?
The assiduousness with which Michigan and other universities have unembarrassedly litigated their right to practice racial discrimination shows how deep their commitment is to racial quotas and preferences. They seem to judge their own moral worth by their willingness to admit large numbers of at best marginally qualified minority students to their schools. They would argue that their motives are good. But so, as Judge Boggs points out, were the motives of many of the Southern segregationists who opposed integration of Southern colleges and universities. At least some of them genuinely believed that racial discrimination would produce a better and more peaceful society for both whites and blacks. Today, of course, we all think they are wrong, and some of us thought they were wrong in the 1950s and 1960s. But the Supreme Court of those days ruled that good motives were not a warrant for allowing racial discrimination in violation of the Fourteenth Amendment and the Civil Rights Act of 1964. Grutter v. Bollinger now requires today's Supreme Court to decide whether good motives are a warrant for allowing racial discrimination in violation of the Fourteenth Amendment and the Civil Rights Act of 1964.
The other legal development of note is Solicitor General Theodore Olson's brief opposing Supreme Court review of the Fifth Circuit's decision in United States v. Emerson. Emerson was charged violating a federal law banning possession of guns by those who had been put under restraining orders by state courts (in this case, because of threats made in a domestic dispute). The District Court ruled that the government's prosecution violated Emerson's right to bear arms under the Second Amendment. The Fifth Circuit reversed, but not before writing an extensive opinion reviewing Second Amendment scholarship. Judge Samuel Garwood, writing for two of the three judges on the panel, wrote that the Second Amendment gives citizens an "individual right" to bear arms. But he ruled that "that does not mean that those rights may never be subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." (I have written previously on this case: http://www.usnews.com
/usnews/opinion/baroneweb/mb_011019.htm.) In this case, he easily found the federal restriction reasonable; the state court had after all found that Emerson was a
dangerous character.
For that reason, Solicitor General Olson argues that the Court shouldn't take this case, and it seems unlikely to do so. But in the process Olson also announced, in a footnote, a change in the government's view of the Second Amendment. "The position of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of firearms that are particularly suited to criminal misuse."
This was, undeniably, a change in position for the government. For many
years, since the Supreme Court's 1939 decision in United States v. Miller (its only pronouncement in the 20th century on the Second Amendment), the Justice Department and many lower federal courts have opined that the Second Amendment protects only a "collective right" to bear arms–you can bear arms as a member of the National Guard, but not as a citizen. This was based on the wording of the Amendment: "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."
The only problem with that interpretation, fastened upon by bien pensant liberals as a justification for any kind of gun control law, is that it is clearly wrong. It is not even the ruling of the Miller court. The militia, in the understanding of the 18th-century framers of the Constitution, consisted of the whole body of free males
ready to spring into action to protect their life and property. The Miller Court recognized this: "The Militia comprised all males physically capable of acting in concert for the common defense." What
Miller did was to uphold a federal law banning sawed-off shotguns–the sort of weapon, one might reasonably think, described by Olson's brief as not having Second Amendment protection ("firearms
that are particularly suited to criminal misuse.") Olson's brief is thus entirely consistent with Miller. What is inconsistent with Miller is the line of federal cases stating that the Second Amendment protects only a collective right to bear arms.
Recent legal scholarship has made mincemeat of the theory that the Second Amendment confers only a collective right to bear arms. Nor does all this scholarship come from opponents of gun control. A pioneer were was Sanford Levinson of the University of Texas, whose 1988 article was entitled "The Embarrassing Second Amendment"; Levinson supports gun control and would like to see the Second Amendment repealed, but he admits that it creates an individual right to bear arms.
The Supreme Court is not likely to hear the Emerson case; the Fifth Circuit's result was clearly correct and is the same whatever view you take of the Second Amendment. Moreover, much of Judge Garwood's opinion is dictum, as a concurring judge pointed out. Yet it is a convenient summary of the legal scholarship of the last two decades which makes an overwhelmingly powerful case that the Second Amendment creates an individual right to bear arms–not a right that overturns every gun control law, but one which stands in the way of a British-style law banning private possession of firearms and one which might invalidate some existing laws, notably the District of Columbia's near-complete ban of possession of handguns. It is an opinion that is impossible to ignore, and which may be cited by defendants in gun possession cases, one of which may some day make its way to the Supreme Court. Indeed, it may deter prosecutions under laws like the District of Columbia's, for fear the laws will be thrown out.
The reaction to the Sixth Circuit case and Solicitor General Olson's brief was fierce from the custodians of bien pensant liberal opinion, as exemplified by editorials in the New York Times and the (usually much more thoughtful) Washington Post. The Sixth Circuit's approval of racial quotas and preferences was applauded, and Judge Boggs's powerful dissent ignored. Solicitor General Olson was excoriated for changing the government's position, with not a mention of the growing body of evidence that his position is right and the position of previous administrations (of both parties) wrong.
But these strong arguments against bien pensant liberal opinion cannot be evaded forever. The flimsiness of the arguments for the constitutionality of university racial quotas and preferences and the collective rights theory of the Second Amendment stand revealed. It is interesting that institutions–the University of Michigan Law School, no less–are willing to insist on policies of dubious constitutionality. In the interests of policies that supposedly are of overriding public good–racial quotas and preference, gun control laws–bien pensant liberals have been willing to ignore serious arguments that those policies violate the Fourteenth and Second Amendments. But they may not be able to ignore them much longer. The lawlessness of today's racial quota and gun control liberals may be coming under serious challenge.
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