The Resurrection of Uncle Tom

The Whipping Man

By Matthew Lopez

Marin Theater Company,

through April 28.

On Sunday we saw Matthew Lopez’s The Whipping Man at the Marin Theater Company.  The play has been well received, and Lopez is a promising young playwright.  The conceit of the play is its appropriation of Passover celebrated by two Jewish house Negroes (Simon and John) in the ruins of their former home in Richmond Virginia on April 14, 1865.  The date is significant because it is the day of Lincoln’s assassination, just five days after the surrender of the South.  The third member at this Seder table is the son of the household who returned in the middle of the night at the beginning of the play, with a shot up leg. The leg is amputated just below the knee with a saw by the former slaves before the festivities. 

You might ask “Jews in the South?”  Well, yes, there was a Jewish population of approximately 25,000 in 1860 in the South, and those with means owned slaves.  Southern Jewish gentry tended to congregate in the cities, which means they owned “house negroes” not “field negroes” as Malcolm X would have it.   Malcolm X didn’t approve much of house Negroes.

Harriet Beecher Stowe’s novel Uncle Tom’s Cabin, published in serial form in 1851-1852, sold 500,000 copies world wide by 1853.  The book has been credited by some with being responsible for the election of Abraham Lincoln, and it was instrumental in fueling the abolitionist movement leading to the end of slavery in the United States in 1865.  Wikipedia's encapsulation is:  “Stowe's melodramatic story humanized the suffering of slavery for White audiences by portraying Tom as a Christlike figure who is ultimately martyred, beaten to death by a cruel master because Tom refuses to betray the whereabouts of two women who escape from slavery.”  An early (1852) anonymous reviewer of the book in the Boston abolitionist publication, The Liberator, took exception to the saintly Christian pacifist portrayal of Uncle Tom:  “Uncle Tom’s character is sketched with great power and rare religious perception. It triumphantly exemplifies the nature, tendency, and results of CHRISTIAN NON-RESISTANCE. We are curious to know whether Mrs. Stowe is a believer in the duty of non-resistance for the White man, under all possible outrage and peril, as for the Black man….”  

In 1949, James Baldwin wrote an influential essay on Uncle Tom’s Cabin, titled “Everybody’s Protest Novel,” which excoriated the novel as a political pamphlet.  Baldwin argued that protest novels are inherently sentimental, and that sentimental art is inherently dishonest.  Thereafter, it was all downhill for poor Uncle Tom who came to be a derogatory epithet for excessive subservience and acceptance of a racially defined lower-class status, to the point of collaborating with the oppressor, and being a traitor to one’s own.  It’s what resonates in Malcolm X’s characterization of the “house negro.” 

Well this play has two house Negroes: the level headed, powerful, illiterate but wise Simon; and the younger, never-do-well, thieving, intelligent, literate, self-educated, and angry John.  But neither one of them has a trace of the pejorative “Uncle Tom.”  John was a rebel and was whipped for it.  Simon was whipped too, but it does not sound true and it is not believable in the play.  Simon is like the original “paragon of Christian virtue” Uncle Tom, except he is a paragon of Jewish virtue.  His Jewish faith is more constant in the face of disaster than Caleb’s, the prodigal soldier son of the household.  [Not the only son, but that is another story]  Simon raised both Caleb and John, and he is the most powerful of the three.  He is powerful like a good version of Samuel L. Jackson’s Stephen in Django Unchained.  He runs the show. 

If Simon’s power comes from his Judaism, John’s (and what kind of meshugganah Jewish name is that?) comes from his learning and intelligence.  He knows that the Bible commands the Israelites that they may buy slaves from “the nations that surround you, … but over your brothers the people of Israel you shall not rule, one over another ruthlessly.”  Leviticus 25: 44-46.

"Were we slaves ..., or were we Jews,"  asks John.  He has within him the seeds of the Civil Rights movement, the seeds of affirmative action.  

Simon is promised his freedom by his master, who sold his wife, and who may be dead;  but John knows that, as to Hebrew slaves, the bible commands:  “in the seventh year you must let them go free.  And when you release them, do not send them away empty-handed.  Supply them liberally from your flock, your threshing floor and your winepress. Give to them as the Lord your God has blessed you.  Remember that you were slaves in Egypt and the Lord your God redeemed you. That is why I give you this command today.”  Deuteronomy 15:12-18. 

Here is the legislative history behind all of that. 

Gives a whole new meaning to being  "on the side of the angels” don’t it?

The play is extended through April 28.  Go see it and let me know what you think the implications might be of this resurrection of Uncle Tom. 

Embracing Your Inner Deus Ex Machina

The Mermaid of Brooklyn

by Amy Shearn.

Simon & Shuster

339 pp., $14.99

The god from the machine is a plot device introduced by Greek tragedy.  Many of the plays by Euripides, they say, employed a crane to lower gods, or risers to raise them through trap doors, in order to resolve a plot line.  Aristotle didn’t much care for them. “ [The poet] ought always to seek what is either necessary or probable” in developing a story, he said in his Poetics.  In other words, no cheap devices to bail out the novelist when she has written herself into a corner, as Christopher Hitchens accused J.K. Rowling of doing in Harry Potter. 

The eponymous mermaid in Amy Shearn’s second novel, The Mermaid of Brooklyn, released on April 2, 2013, is no cheap trick.  True, there’s a certain mystery in how a Slavic rusalki comes to take up residence in the East River and then the body of a depressed Brooklyn mother of two, whose magazine editor job has evaporated, and whose husband with a gambling problem disappears on the way home from work one night.  Rusalkas, we are told, are “the unavenged spirits of suicides, forsaken girls, betrayed brides, unwed mothers-to-be” and the alter ego of Jenny Lipkin, the main character and first person narrator of this delightful novel. 

Nietzsche, who was a student of ancient Greek texts, literature, and language, noted that in Greek tragedy there was always a struggle between the Dionysian (orgiastic, not rational) and the Appollonian (rational).  It was the melding of these opposing elements into a seamless whole that imbued Greek tragedy with its majesty and truth.  And it’s the blending of these two elements in Jenny Lipkin that makes The Mermaid of Brooklyn transcend the ordinary. 

There is no dive-in-the-river-and-break-your-neck tragedy in this book.  The problems are more ordinary, more universal, but no more trivial for all that.  How can we find happiness or satisfaction in this modern, harried world?  How does a marriage survive after a husband goes walkabout for five months on the way to stop for cigarettes, after adultery? Can it?  Turns out a renegade Slavic rusalki and a really great pair of shoes can help.   Who would have thought?  Part tragedy, part romantic comedy, part fairytale, part chick-lit, part Dear Abby, this novel takes a deeply loving look at motherhood, life in the big city, kids, friendship, and love. 

I’ve not met Amy Shearn, except on Facebook, although she’s my wife’s second cousin, once removed.   But I trust her judgment, her sensibility, her Dyonysus and her Appollo.  I’ll follow her wherever she wants to lead us next.

And here, courtesey of my friend Sandy, is Lucia Popp with Song to the Moon from Dvorak's Rusalka. 

Why the Supreme Court May Want to Find a Way to Punt on Prop 8

The behind the scenes wrangling at the Supreme Court in the wake of this weeks arguments in Hollingsworth v. Perry promises to be interesting.  This is the California Prop. 8 case where the court is being asked to decide whether the equal protection clause of the 14th Amendment of the U.S. Constitution prohibits the State of California from defining marriage as the union between a man and a woman.

The back and forth between the judges should be very interesting behind the scenes because a) the equal protection argument is very strong, b) the argument offered against (regulating procreation) is very weak, and c) the real argument against (most states prefer it that way) is not a legitimate constitutional argument.

The fear to let gays marry is, of course, irrational.  But it's there.  At current trends, in another 20 years most states will have legalized marriage and there will be a strong majority in favor of gay marriage  (new young voters are strongly in favor of it).   At present, however, the map of states prohibiting same sex marriage is overwhelmingly red;  much more so, say,  than a similar map of states requiring segregated education in 1954.  Brown v. Bd of Education, striking down de jure segregation in education was a unanimous decision.  It's safe to assume that none of those justices personally believed we should have de jure segregation in education.  By contrast, there is strong support in the country for keeping marriage between a man and a woman, and four of the justices personally share that sentiment.

In light of the continued national split, still favoring "let's keep marriage between a man and woman," it will be much harder for five justices to shove gay marriage down the throat of the states where this has less than 20% support, down the throat of the nation as a whole (where a [slight?] majority still favors "traditional marriage"), and down the throat of the four dissenting justices.  By comparison, the decision in Brown v. Board of Ed to unanimously strike down segregated education in 1954 was a cakewalk.

That's why the justices in the Prop 8 case may want to look for a way to let this "perc" a little while longer and say .... "never mind."

Passover for Atheists and Hangers On

At our house we’re getting ready for Passover Seder on Monday.  We’ll be joined by a minyan of friends.  It’s one of my favorite holidays. 

Passover is the story of God’s deliverance of the Jews from Egyptian slavery with a mighty hand.  And lots of magic.  There is a talking burning bush, turning water into blood, and parting of the sea.  It’s about the Jews as a chosen people, and a promised land. 

I don’t understand any of it.  There’s the fact I’m not a Jew, although I’m married to one.  What does it mean to be a chosen people?   If I join the chosen people do I become chosen?  Chosen by whom? Chosen for what?

What sense does this ritual make for an atheist non-Jew?  What sense do stories make?  It’s a mystery.  It’s easy to invite people to Passover.  There is that.  If you invite them they will come.  I know that would not be true for a reading of Hamlet.  The Hamlet reading requires more lobbying, it’s not a tradition.  And at the Hamlet reading our guests wouldn’t put up with what can rightly be perceived as preachy, or spiritual gobbledygook.  As I said, I don’t understand any of it. 

But then there’s so much I don’t understand. Take the theory of relativity, or the Higgs Boson.  I don’t understand them.  I don’t understand where the world comes from or where it’s going to.  Although I understand a little bit of the law, every other time I think I have it right some judge tells me no I don’t.  I don’t understand why we all just can’t get along.  As the cartoon goes, there’s so much we don’t understand about carburetors.

Yet, through it all we come back to the Passover Seder year after year.  We’ve been doing it a long time.  God or no god, we don’t chuck it overboard.  Even though we understand it not, and we won’t ever understand it, there is something nourishing about the Seder and the retelling of this old story with family and friends.  In all the shifting sands of partial knowledge, illusions, uncertainty and mystery, the ritual remains constant, and mysterious to us all in our different ways.  It’s reason enough to keep it going.   

An Irish-Kenyan-Hawaiian-non-Jewish Seder

The Wisdom of David Foster Wallace

Bobbi's out of town, which means the diet turns all bread, butter, and jam, and I get to surf the Internet.  This has lead me to You Tube clips of Christopher Hitchens entertainingly painting all religion black, and vile, and stupid, and evil.  Which raises the question, what's left of a professional contrarian debater and polemicist after he's gone?  

The unsatisfying part of listening to Hitchens parading on the atheist speaker circuit is that his fire-power overwhelms opponents and it's hard to see what the dialogue might be.   The problem with polemics in general, of course, is that a debate is never really joined.  There is no dialogue or discussion, no real consideration of The Other.  Witness our political debates. Peacocks on parade.  What's missing is any considered evaluation of what's truly best for the country.

Hitchens would say we should throw out religion and look to Shakespeare instead.  The polemical narrow-minded part of him refuses to grant that one can, and most do,  also take religion and all of its traditions and approach them in the same way:  not literally, but literarily.   Hitchens throws up the most literal and extreme interpretation of any religious tradition and says, "Here, this is what you must believe" if you claim to be part of this tradition.   Among all the patsies that are thrown up against Hitchens on his militant atheist speaking tours none manage to explain this satisfactorily, or to hold their own.  One problem for the religious set is that they are reluctant to concede that religion is a man made tradition, and that it's not metaphysics they are speaking of.  Hitchens takes full advantage.  

David Foster Wallace has the antidote.  I first heard of Foster Wallace in the first chapter of "All Things Shining," by Hubert Dreyfus and Sean Kelly, professors of philosophy at UC Berkeley and Harvard.  The book is a version of a 5-Great-Books course (the Bible to Moby Dick) that Dreyfus has been teaching at U.C. Berkeley for years.  Kelly gussied this up for the popular market by including, among other things, a discussion of nihilism through Foster Wallace's "Infinite Jest." (O.K., what were they thinking, really!)  I still haven't read Infinite Jest, but it's on the list, if not at the top.

The temperament of David Foster Wallace runs to humility, almost the opposite of Hitchens's hubris. The essayist, author, philosopher, and teacher died of suicide in 2008.  But, like Hitchens, he survives on You Tube.  I love watching him answer questions in interviews because he genuinely tries to grapple with truth.  Check out his interviews with Charlie Rose.

In 2005 Wallace gave a great commencement address to the graduating class of Kenyon College, "This is Water."  It's as good a response to Hitchens as you'll likely run across.  Everybody worships, says Wallace.

The Parable of Belief

There are these two guys sitting together in a bar in the remote Alaskan wilderness. One of the guys is religious, the other is an atheist, and the two are arguing about the existence of God with that special intensity that comes after about the fourth beer. And the atheist says: "Look, it's not like I don't have actual reasons for not believing in God. It's not like I haven't ever experimented with the whole God and prayer thing. Just last month I got caught away from the camp in that terrible blizzard, and I was totally lost and I couldn't see a thing, and it was 50 below, and so I tried it: I fell to my knees in the snow and cried out 'Oh, God, if there is a God, I'm lost in this blizzard, and I'm gonna die if you don't help me.'" And now, in the bar, the religious guy looks at the atheist all puzzled. "Well then you must believe now," he says, "After all, here you are, alive." The atheist just rolls his eyes. "No, man, all that was was a couple Eskimos happened to come wandering by and showed me the way back to camp."

Where do these different interpretations come from, asks Wallace.

[W]here they come from [is] INSIDE the two guys. ... [H]ow we construct meaning [... is] a matter of personal, intentional choice. Plus, there's the whole matter of arrogance. The nonreligious guy is so totally certain in his dismissal of the possibility that the passing Eskimos had anything to do with his prayer for help. True, there are plenty of religious people who seem arrogant and certain of their own interpretations, too. They're probably even more repulsive than atheists, at least to most of us. But religious dogmatists' problem is exactly the same as the story's unbeliever: blind certainty, a close-mindedness that amounts to an imprisonment so total that the prisoner doesn't even know he's locked up. 

The point here is that I think this is one part of what teaching me how to think is really supposed to mean. To be just a little less arrogant. To have just a little critical awareness about myself and my certainties. Because a huge percentage of the stuff that I tend to be automatically certain of is, it turns out, totally wrong and deluded. I have learned this the hard way, as I predict you graduates will, too. 

Wallace goes on to speak of busy lives, work stresses, lack of time, and running into obstacles at the grocery store, in the parking lot, and on the highway trying to get home, and how aggravating, and annoying, and interfering other people can be as we go about this.  And how do we perceive this?

[M]y natural default setting is the certainty that [the world is] really all about me. About MY hungriness and MY fatigue and MY desire to just get home, and it's going to seem for all the world like everybody else is just in my way. And who are all these people in my way? And look at how repulsive most of them are, and how stupid and cow-like and dead-eyed and nonhuman they seem in the checkout line, or at how annoying and rude it is that people are talking loudly on cell phones in the middle of the line. And look at how deeply and personally unfair this is. ....

You get the idea.  ....The thing is that, of course, there are totally different ways to think about these kinds of situations. ....  [M]ost days, if you're aware enough to give yourself a choice, you can choose to look differently at this fat, dead-eyed, over-made-up lady who just screamed at her kid in the checkout line. Maybe she's not usually like this. Maybe she's been up three straight nights holding the hand of a husband who is dying of bone cancer. Or maybe this very lady is the low-wage clerk at the motor vehicle department, who just yesterday helped your spouse resolve a horrific, infuriating, red-tape problem through some small act of bureaucratic kindness. Of course, none of this is likely, but it's also not impossible. It just depends what you want to consider. If you're automatically sure that you know what reality is, and you are operating on your default setting, then you, like me, probably won't consider possibilities that aren't annoying and miserable. But if you really learn how to pay attention, then you will know there are other options. It will actually be within your power to experience a crowded, hot, slow, consumer-hell type situation as not only meaningful, but sacred, on fire with the same force that made the stars: love, fellowship, the mystical oneness of all things deep down.

Not that that mystical stuff is necessarily true. The only thing that's capital-T True is that you get to decide how you're gonna try to see it.

This, I submit, is the freedom of a real education, of learning how to be well-adjusted. You get to consciously decide what has meaning and what doesn't. You get to decide what to worship.  ... [I]n the day-to-day trenches of adult life, there is actually no such thing as atheism. There is no such thing as not worshipping. Everybody worships. The only choice we get is what to worship. And the compelling reason for maybe choosing some sort of god or spiritual-type thing to worship--be it JC or Allah, be it YHWH or the Wiccan Mother Goddess, or the Four Noble Truths, or some inviolable set of ethical principles--is that pretty much anything else you worship will eat you alive. If you worship money and things, if they are where you tap real meaning in life, then you will never have enough, never feel you have enough. It's the truth. Worship your body and beauty and sexual allure and you will always feel ugly. And when time and age start showing, you will die a million deaths before they finally grieve you. On one level, we all know this stuff already. It's been codified as myths, proverbs, clichés, epigrams, parables; the skeleton of every great story. The whole trick is keeping the truth up front in daily consciousness.

Worship power, you will end up feeling weak and afraid, and you will need ever more power over others to numb you to your own fear. Worship your intellect, being seen as smart, you will end up feeling stupid, a fraud, always on the verge of being found out. But the insidious thing about these forms of worship is not that they're evil or sinful, it's that they're unconscious. They are default settings.

They're the kind of worship you just gradually slip into, day after day, getting more and more selective about what you see and how you measure value without ever being fully aware that that's what you're doing.

And the so-called real world will not discourage you from operating on your default settings, because the so-called real world of men and money and power hums merrily along in a pool of fear and anger and frustration and craving and worship of self. Our own present culture has harnessed these forces in ways that have yielded extraordinary wealth and comfort and personal freedom. The freedom all to be lords of our tiny skull-sized kingdoms, alone at the centre of all creation. This kind of freedom has much to recommend it. But of course there are all different kinds of freedom, and the kind that is most precious you will not hear much talk about much in the great outside world of wanting and achieving.... The really important kind of freedom involves attention and awareness and discipline, and being able truly to care about other people and to sacrifice for them over and over in myriad petty, unsexy ways every day.

That is real freedom. That is being educated, and understanding how to think. The alternative is unconsciousness, the default setting, the rat race, the constant gnawing sense of having had, and lost, some infinite thing.

It is about the real value of a real education, which has almost nothing to do with knowledge, and everything to do with simple awareness; awareness of what is so real and essential, so hidden in plain sight all around us, all the time, that we have to keep reminding ourselves over and over: "This is water."  

This is an answer to Hitchens.

Go listen to Wallace. in full.  He's great.

Heaven is a Place Where Nothing Ever Happens!

We used to race Thistles (sailing dinghy) in the Northwest.  I loved hunting for puffs in light air, roll-tacks, the body English of keeping the boat flat in heavy air.  It focused and occupied the mind.  Races took three hours between set-up, checking out wind shifts pre-start, to take down in glorious victory, or abject defeat.  The struggle for a favorable space on a crowded starting line, for an inside overlap at a mark rounding, of spinnaker sets sent adrenaline coursing through the blood.  It was great!  But not a place for free flowing rumination and conversation. 

Now we ride bikes across the Golden Gate, into the headlands, up the golden haunches of Mt. Tamalpais.  We ride leisurely, mostly, and enjoy fantastic views half a mile above the whitecaps at Stinson Beach below.  The conversation is wide ranging, threads are started, developed, interrupted by the speed and thrill of the downhill, and picked up again.  There are few places and occasions in our busy lives where such conversations can be found.  It’s one of my favorite things about biking. 

Heaven and hell don’t come up much around the office.  I don’t hang out in churches where such things are discussed.  I mostly run into church folk at work or social gatherings where the unwritten, but not unarticulated rule is “no politics, no religion.”  On bike rides we get to break such rules, even when riding with clients.  So last week, out in West Marin we got onto hell.  I got to wondering how prominent the concepts of heaven and hell are in the bible.  I was with an expert: a client’s wife.  She’s read the bible through and through, 25 times. 

The latest bike gizmo is made by Garmin.  It tracks your progress via satellite, it computes how many feet you’ve climbed, it calculates (inaccurately we think) how many calories you’ve consumed, how fast you’re going, and how far you’ve come.  After the ride you can download it all onto your computer and view your route on Google maps.  But, alas, it doesn’t record your conversation . . . and it doesn’t have a search engine on board.

Our discussion on hell was inconclusive; but I did learn that you can do key word searches of the Bible on your computer.  So when I got home, here’s what I found.

In the King James Bible the word “hell” appears in 54 phrases, sometimes as metaphor (as in “the sorrows of hell”; Psalms 18:5) and sometimes as a place (as in “thou shalt be brought down to hell, to the sides of the pit”; Isaiah 143:15) and sometimes ambiguously as a state of the soul (as in “Though has delivered my soul from the lowest hell; Psalms 86:13).

There is no description of “hell” anywhere in the bible.  It would be interesting to know whether the same word is used in the original in all 54 of these instances.  [Remind me to ask my friend Webb; he’s translated the entire Bible from the Greek into modern English, had plans to write “The Trinity for Dummies”]  As translated, the phrase suggests that the term must have had some meaning in the imagination of the authors, but the meaning is not apparent from the text itself.

There are 691 references to the word heaven.  Most of these refer either to the sky and the stuff in it, as in “In the beginning God created the heaven and the earth,”or as the place of abode for God.  One of the more extensive references to heaven as the abode of God appears in the story of Jacob’s ladder.  (“He dreamed, and behold a ladder set up on the earth, and the top of it reached to heaven: and behold the angels of God ascending and descending on it. . . And he was afraid, and said, How dreadful is this place! this is none other but the house of God, and this is the gate of heaven.”; Genesis 28:12-17)  This clearly suggest that the angels of God dwell someplace up there in the sky, and suggests some gateway to an unseen heaven, i.e. something other than the stars, sun, and moon.

Heaven is a mysterious place which can hail bread (Exodus 16:4), or from which are hurled stones (Joshua 10:11).  By Psalms, heaven is also used metaphorically, as in "O Lord, thy word is settled in heaven" and as simile, as in "For as the heavens are higher than the earth, so are my ways higher than your ways" (Isahiah 55:9).  Heaven begins to sing (Isaiah 44:23) and "pour down righteousness" (Isaiah 45:8).  In Jeremiah there is talk of burning incense to the "Queen of Heaven" (Jeremiah 44:17) who is often thought of as Mary, but Jeremiah is speaking of the Babylonian exile so the reference must be to something else.

By Daniel, the heavens "rule" (Daniel 4:26) and heaven is equipped with an army (Daniel 4: 45).

Malachi introduces the concept of heaven as a reward for the payment of tithes. Malachi 3:10. Heaven is equipped with "windows", but this seems to be pretty much metaphorical.  "I will not open the windows of heaven for you and pour down for you an overflowing of blessings” (unless you pay your tithe). Malachi 3:10.

Matthew promises that "the kingdom of heaven is at hand" (Matthew 3:2), but offers not much concrete about what this implies.  It's a place for the "poor in spirit" Matthew 5:3, and a reward for those "persecuted for righteousness" Matthew 5:10-12.  Matthew says "ye shall in no case enter the kingdom of heaven" unless you are more righteous than the Pharasees and scribes (apparently a low standard).  Matthew 5:20. Or simple as a child.  Matthew 18:3-4. Thieves and burglars, once there, "do not break through nor steal."  Matthew 6:20. The kingdom of heaven suffers violence and the violent take it by force.  Matthew 11:20.  It is like a man who sows good seed in a field.  Matthew 13:24.  Like leavening hidden in meal.  Matthew 13:33. Like treasure found in a field.  Matthew 13:44.  Like ten virgins going forth to meet their bridegrooms. Matthew 25:1.

So "heaven" is a place in the sky, where angels ascend and descend, a place that opens and closes (when heaven is shut up there is famine,  Luke 4:25).  Heaven is a place where God lives and watches over the world, and where there is a "queen."  Or, as the British soul band would have it, Heaven is a place where nothing ever happens.  The same cannot be said for our bike rides.

The Road Not Taken

[At our Division 4 (ABA Forum on Construction) dinner in Naples this week, we briefly discussed the current Supreme Court's substantive due process analysis.  I initially posted the analysis, below on "Winds of Change" at the time of the McDonald v. Chicago arguments in 2010.  How time flies.  And, of course, not being a constitutional law scholar per se, I couldn't remember the outline below.  I'm reposting here for anyone who would like a quick primer on substantive due process analysis--and so I can find this more readily next time]

In District of Columbia v. Heller (2008) the Supreme Court struck down a Washington D.C. gun control ordinance and confirmed that the second amendment to the U.S. Constitution grants an individual right to bear arms. It's about more than well regulated militias. The question now is does the Second Amendment similarly restrict state and local government gun control statutes. The Supreme Court will hear oral argument on this question Tuesday, March 2, 2010, in McDonald v. Chicago. 

This case will make a big splash in the news, so here's a quick primer. The Bill of Rights binds Congress. The second amendment applied in Heller because Congress is in charge of the District of Columbia. In order to understand the issue before the court you must know that the Supreme Court has repeatedly held that the Bill of Rights (i.e. the first ten amendments adopted in 1791) does not apply to the states as such. See, e.g. U.S. v. Cruikshank (1876) 92 U.S. 542. Instead, the court has selectively made provisions of the Bill of Rights applicable to the states through the due process clause of the 14th Amendment. This substantive due process analysis asks the question whether a particular right is so fundamental that it is "implicit in the concept of ordered liberty" so that it must be binding on the states. For example, in Palko v. Connecticut, 302 U.S. 319 at 324-25 (1937) the court found that the fifth amendment right against double jeopardy is of such a fundamental nature that it is implicit in the concept of ordered liberty and thus binding on the states.

The court did not need to take this path of substantive due process analysis. http://www.bartelby.com/119/1.html (Frost). It could have, and probably should have said that the Bill of Rights is binding on the states by virtue of the privileges and immunities clause in the 14th Amendment. Section 1 of the 14th Amendment provides:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

If there is a second amendment right to bear arms as a U.S. citizen, which the court has found in Heller, the court's analysis might be that states may not abridge the "privileges and immunities," broadly understood as rights, granted by the Bill of Rights, including the right to bear arms. However, this argument is foreclosed without some serious backtracking because for the past 139 years, since The Slaughterhouse Cases, the court has gone down a different path - the path of substantive due process.

In McDonald the NRA is challenging the gun control measures of the cities of Oak Park and Chicago. The substantive due process path the court has taken for the past 139 years presents a problem for the claimants. Is the right to own a gun without registration so fundamental that it is "implicit in the concept of ordered liberty?" The answer to this question is not so clear. Based on substantive due process analysis, you might think that the concepts of federalism, state rights, and public interest to exercise the police power to control gun violence should trump an individual's right to pack a Saturday night special in a crowded bar without a permit. For this reason, the NRA in McDonald is asking the court to overturn 139 years of constitutional doctrine, to go back to the road not taken in The Slaughterhouse Cases, and make the second amendment directly applicable to the states through the privileges and immunities clause of the 14th Amendment.

The popular view is that Roberts, Scalia, Alito, and Thomas would be willing to do this. They are not fans of substantive due process analysis. Among other things, substantive due process analysis has been used to create rights that are not enumerated anywhere in the constitution, e.g. the right of privacy (Griswold, Roe). The whole movement of originalist interpretation has fought against this. It may be that these four justices would be willing to go back 139 years, declare the path of substantive due process a mistake and a dead end, and make the entire Bill of Rights applicable to the states through the privileges and immunities clause. This would invite attack on all of the substantive due process cases based on "privacy" and other unenumerated rights.

Throwing out 139 years of constitutional history would be a revolutionary act. The implications would be far reaching and unpredictable. For this reason, my money is on Kennedy joining the liberal wing of the court and rejecting the privileges and immunities argument in this case. If so, the likely outcome will be that the 2nd Amendment will not be made applicable to the states because the right to be free from gun control legislation is not so fundamental as to be implicit in the concept of ordered liberty. Stay tuned.

[Update.  As it happened, of course, Alito's majority opinion in McDonald was not revolutionary. The court incorporated the second amendment and made it binding on the states based on a traditional substantive due process analysis.  They did not walk on new ground]
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