The Maryland Corner: “Redeeming Roger Taney”


(from the forthcoming issue of The Terrapin Times, the first installment of our new feature, dedicated to important political figures, past and present, on the Right from Maryland, tentatively called The Maryland Corner)


Americans have a way of spinning history to bolster our national mythology. JFK’s foreign policy was nightmarish — to speak nothing of his personal life —, yet we extol him. FDR attempted to pack the Supreme Court, interned Japanese-Americans in numbers that dwarf the count of unfortunate souls at Guantánamo, and eagerly collaborated with the murderous Stalin, but idolizing him as the conqueror of the Depression and scourge of the Axis powers is much more palatable than embracing the truth. 


Then there is Abraham Lincoln. Ignoring that he needlessly sanctioned the bloodiest war in American history and put the kibosh on the important question of whether states, sovereign when they entered into the great experiment in liberty, could secede and reassert their autonomy, we revere the sixteenth president as a great liberator, the savior of the Union. We relegate Maryland native and Lincoln antagonist Chief Justice Roger B. Taney to the deepest pits of Hell for his opinion in Dred Scott v. Sanford.


Yet, ironically, as we begin at least four years under our first Black president, a man esteemed as the new Lincoln, we ought to look for inspiration to no less a man than the estimable author of that loathsome Dred Scott decision.


Roger Brooke Taney, of Calvert County, was hardly perfect; he was, however, more complex than many would care to admit. His opining that Blacks were “beings of an inferior order, and altogether unfit to associate with the white race,” and thus ineligible for citizenship, is detestable. Nevertheless, he had personal qualms with the “peculiar institution,” and manumitted his own slaves. A dual-federalist, he stood firmly between ardent states’ rights champions and the advocates of centralization, proud of his Southern heritage and a lover of Maryland, but a loyal American who sought the preservation of the Union. 


Most important today, as our government continues to expropriate powers at the cost of our God-given liberties, Taney stood up to Lincoln’s antipathetic attitude toward the Constitution. After the mayor of Baltimore and governor of Maryland, to the president’s consternation, proclaimed that they would permit no more Union troops to transfer through their respective jurisdictions, Lincoln instructed General Scott to suspend the writ of habeas corpus within the area of the military line. 


Obeying the governor’s orders, Lt. John Merryman, of the Baltimore County Horse Guards, burned bridges to prevent additional Pennsylvania soldiers from entering Maryland; not long thereafter, he was arrested on charges of treason. Numerous Maryland legislators soon found themselves incarcerated for no obvious reason. 


Enter Roger Taney. Presiding over the U.S. Circuit Court for the District of Maryland, Taney, in Ex parte Merryman, reaffirmed that the president lacks authority to suspend the writ of habeas corpus — a power expressly delegated to Congress in Article I of the Constitution. A defiant Lincoln persisted, widening the scope of the territory wherein the writ was held in abeyance. Employing arguments frightfully comparable to — but exceedingly more eloquent than — those to which we have grown accustomed in this tumultuous decade, Lincoln asked rhetorically of Congress, “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” Orwellian reverence for the rule of law at its finest.


Taney’s comprehension of liberty was incomplete, perhaps unforgivably so. That President Obama intends to try to suspend the writ of habeas corpus is dubious. However, given Obama’s vision for expanding government’s role in the economy, embrace of the Pax Americana ideology, and, more relevant, support for the USA PATRIOT Act and the FISA “compromise,” one is right to fear for his liberty. If we look beyond his imperfections, in Roger Taney we see a Marylander of whom we should be proud and whose spirited defense of the Constitution we should aspire to mimic. 

“I swear to God I’m going to pistol whip the next guy who says ‘Shenanigans’!”

Dick Heller, of District of Columbia v. Heller fame, has, again, with two co-plaintiffs, filed a law-suit against D.C., “alleging that the District’s new gun registration is burdensome and continues to unlawfully outlaw most semiautomatic pistols.” I’m pretty sure that the following constitutes shenanigans:

In the District’s view, [acting District Attorney General] Nickles said, the ruling gives people the right to use firearms in self-defense but not the right to keep firearms loaded and ready for use in case the need for self-defense arises. As a result, he said, it is reasonable for the city to require that handguns be kept unloaded and disabled when the owner is not under a direct threat.

Be sure to use a revolver when whipping Nickles.

I’d offer my own commentary on the sheer absurdity of Nickels’ comments, but Heller’s attorney, Stephen P. Halbrook, handles the task smoothly:

Under the D.C. [law], a robber has to make an appointment with you so you can get your gun ready for him.

Unsatisfied, it seems, with the ineptitude and inability to understand the Supreme Court’s ruling displayed by other representatives of the District’s totalitarian government, Councilmen Phil Mendelson quipped, “I hope that people who agree with Mr. Heller will explain to us [at the hearing] what the best ways are to ensure safe storage.”

There once was a fool named Fenty,
who of brains cells lacked plenty.
Though he knew that they’d sue,
oh, what did he do?
He continued to run a police-state government-y.

Who gives a damn about property rights, any-way?

This is, I think, particularly in the aftermath of Kelo, an important question to consider. And I say this not simply because I disagree with that atrocious (but hardly original) decision offered by the left wing of the Court, but, also, because of the some-times outrageous reactions, to wit, along the lines of “I vow to do every thing I can to stop all exercise of eminent domain.” (It is, undeniably, a necessary, and good power, however abused it, potentially, may be.) Moreover, I wonder, really, what relevance has the notion of the right to property in this day?

When the Founders composed the Constitution, they inserted protections against eminent domain, that is, protection of private property. The belief in the right to private property, of the importance of property and of protecting this right, marked an important, overlapping concern of what we can classical liberalism and conservatism (rooted in Burke, and, perhaps, Bolingbroke, too — I defer to Daniel on this; I’ve read nothing of Bolingbroke’s, yet). Belloc, Chesterton, and their Distributist compatriots shared this belief, defending, adamantly, the rights of private property, and, furthermore, supporting a system of widely distributed. Berry and Röpke, especially, echo such sentiments. However, all of these defenders of property concerned themselves, not idly, with a necessarily too-broad conception of the word, but, primarily with productive property: The family farm, the (small,) locally owned and operated store, the craftsman or artisan’s workshop, the (small) laborer-owned factory. I mean not at all to suggest that they had no concern for a man’s non-productive estate, but, merely, that when they spoke and wrote passionately and unequivocally about the sanctity of private property, they referred, primarily, to the productive, personal forms of property owned and employed by the (semi-)self-supporting person (or family).

The widespread distribution of property, in the sense envisioned by the Distributists and their successors, hardly exists today, in a world of agri-business and corporate chain giants. The craftsman and artisan, by and large, have been replaced by facilities of mass-production. Of course, exceptions exist, but private property, as we generally think of it (and as was the subject of debate in Kelo), comprises little more than our homes and the lots whereupon they sit. (Mortgages existing on so many properties, even this home-ownership notion is not quite the coming to fruition of that great American dream.)

So, if we have lost the battle against the consolidation of productive property into the hands of a relative few, why should I — or any-one — really give a damn about the sanctity of private property rights? Now, I am sympathetic (sufficiently so, I grant, to disagree with Kelo on sentimental, as well as Constitutional grounds) with Ms. Kelo and the others whom New London removed from their homes, but, really, I reiterate, Who cares? I, certainly, should hate to see my (parents’) home, which my family has held for more than one hundred years, or my paternal grandfather’s farm, in the family just as long, fall victim to “progress” (which I, fortunately, needn’t to fear because, well, North Judson, IN, ain’t seen much “progress” lately). Nonetheless, as “all-American”, and, mayhap, charming, as it be, the idea of home as a man’s castle is, I submit, fairly farcical, especially, again, when the chances that the real owner of his domain is the First National Bank of Anytown, USA, are as high as they are.

Were what is true of my family’s home and my grandfather’s farm (and the dilapidated farm, near Carlinville, IL, owned by my maternal grandfather and great-aunt, neither of whom has seen the property in at least a decade) more frequently the case, I should, here, offer a defense of the sanctity of private property, in the post-productive property age, on communitarian grounds, videlicet, averring that sparing homeowners the threat of having their piece of the social fabric helps to re-enforce that fabric. On its face, as truncated as I shall leave it, the point seems to be weak, but, I believe, I — or, at least, someone more qualified than I — can make a strong defense of it. No matter, though! In a society as “mobile” and rootless as ours, it seems that, outside of “backwoods” pieces of Americana (my hometown one, to the extent allowed by those dastardly youth, including me, who have uprooted themselves), the connection between long-term property ownership and community seems to be losing its significance. (I may exaggerate here: Certainly, in urban neighborhoods not yet gentrified (and, perchance, someday, these new “gentry” will have cohered enough to rebuild a true community *fingers crossed*), those who’ve been around for long enough, whose families have been in the neighborhood for a couple of generations, the bond still exists. Nevertheless, I think some merit lies in my argument. Yes? No?)

Compounding the problems associated with this rootlessness, “[t]he law,” remarked Steve Karina, my Urban Planning Law professor, “favors the alienation of property.” Historically, restrictive covenants have served as the tools of the evil, as well as the ignorant, to preclude the moving of Negroes (or coloreds) into certain communities. However, ideally, community-oriented homeowners can regulate how future owners alter the home, or the lot, to help to maintain and to re-enforce the neighborhood’s social fabric. The law, however, favoring alienation, future (would-be) owners, oftener than not, can, in the name of this allegedly good fluidity of property, convince the courts to invalidate problematic restrictions, the common weal be damned. (I mean not to suggest that such covenants are always to the public’s benefit, even when the owner so intends, nor that some are not intentionally pernicious; moreover, I am cognizant of the need for nuance here, the new owner having, it would seem the same right to the sanctity of his property rights, just as the previous owner possessed.)

Further exacerbating the situation, we seem, in these post-productive property, rootless and “mobile” times, to see the greatest value of our private property in monetary value, in the capital gains we accrue from purchase to re-sale. This, I contend, is not inherently bad. However, the growth of the “flipping” industry should trouble us. Not a wholly bad profession (I worked, part-time, last summer, for a neighbor who partook in bit of this: He made a legitimate investment in a once attractive, falling-apart house in a struggling town, and did some amazing things.), it, still, ought to give us pause. Yes, just as everything else has become (even love, I imagine), homes are, in a sense, commodities, but to make them objects for buy-and-sell, rather than homes with a meaningful place in the community, ought to cause any true conservative (or communitarian of any stripe) to fear. The real estate industry, of course, proffers no help: In Kunstler‘s words

Here was a neat little semantic trick introduced by realtors as they became professionalized: The prospective buyer was encouraged to think of his purchase as a home, with all the powerful associations the word dredges up from the psyche’s nether regions; the seller was encouraged to think of it as a house, just a thing made of wood where the family happened to sleep and eat, nothing to be attached to. It was most emphatically not home. Home was where one was born and raised, a place in time called the past, gone forever. You can’t go home again. (The Geography of Nowhere, page 165; Kunstler’s emphasis in italics, mine in bold-face.)

I ask, once more, then: Who gives a damn about property rights? I do, but I think that I’m tilting at windmills: Meaningful — that is, productive — property is hard to find; truly significant home property is just as rare, held at the mercy of the mortgager. (Ask those at a loss thanks to Fannie and Freddie.) And so many homes, truly owned or held in mortgage, serve as little more than simple houses, commodities to be kept for a while, ’til the occasion to move, to uproot, arises, when the present owner can make a profit off the property and allow himself and his purchaser, both, to begin the cycle anew.

Indiana Common-sense and D.C’s re-action to Heller

Having, long ago, cast aside any meaning-ful connections that I may have held to the ideology of the GOP, I’m not, by default, the biggest fan of Mark Souder, a U.S. Congressman from Indiana’s third district (even if he has a degree from my alma mater). Never-the-less, I’m happy to see him displaying some good old-fashioned Indiana common-sense:

“[The D.C. government’s] intent is basically to try to get around the court ruling,” Souder said. “In other words, ban the gun, keep all the strict registration, track all the ammunition and, in effect, keep a D.C. gun ban fully operating as if there hadn’t been a court decision.”

He’s pushed the congressional levers to force a vote on his bill to overturn the city’s ban of semiautomatic handguns, its registration requirements and its limits on ammunition.

Read the whole story in Fort Wayne, IN’s Journal Gazette, here.

Maybe some of what Souder wants to accomplish is a bit extreme, but he’s right on the money suggesting that Fenty and the people’s council wish to do their best to ignore the Court’s decision in Heller.

Bob Barr on McCain and the Supreme Court

From to-day’s Wall Street Journal‘s opinions, Bob Barr, “Judges Are No Reason to Vote for McCain”:

The idea of a “living Constitution” long has been popular on the political left. Conservatives routinely dismiss such result-oriented justice, denouncing “judicial activism” and proclaiming their fidelity to “original intent.” However, many Republicans, like Mr. McCain, are just as result-oriented as their Democratic opponents. They only disagree over the result desired.

Judge-made rights are wrong because there is no constitutional warrant behind them. The Constitution leaves most decisions up to the normal political process.

However, the Constitution sometimes requires decisions or action by judges – “judicial activism,” if you will – to ensure the country’s fundamental law is followed. Thus, for example, if government improperly restricts free speech – think the McCain-Feingold law’s ban on issue ads – the courts have an obligation to void the law. The same goes for efforts by government to ban firearms ownership, as the Court ruled this term in striking down the District of Columbia gun ban.

And you wonder why I support this man? Seriously, read the whole piece. A tip of the hat to John Schwenkler for this one. Check out the other interesting links posted by the Schwenk with this piece, here.

Guns, D.C. (crime), Police power, and the Constitution

As the Washington Post reports, the D.C. Council approved, last night, emergency legislation to end the city’s hand-gun ban, bringing the city (allegedly) into compliance with the Supreme Court’s Heller decision.

City leaders say the legislation goes as far as it can on gun regulations while respecting the high court’s ruling. Weapons must be unloaded, disassembled or trigger-locked, except when there is a “threat of immediate harm to a person” in the home.

I confess that, my passionate support of the right to bear arms not-with-standing, I can’t remember the last time I fired (or even held) my BB gun, let alone a rifle or shot-gun; I’ve never handled, much less fired, a hand-gun of any sort. This being the case, I can’t say that I know how quickly and easily, particularly under duress, some-one can load, assemble, or un-lock the trigger of his hand-gun. I suspect, though, that these are not the most quickly accomplished of tasks, especially when a “threat of immediate harm to a person” in the home exists. That is, I fear that the wording of the Council’s legislation essentially makes impotent the threatened gun owner who has complied there-with. Legally, he may not have his gun ready to be fired; he can only prepare it so once some-one poses an immediate threat to him, which, likely, makes, as I said, readying the gun all the more difficult.

Furthermore, this un-reasonable legislation seems, to me, to be quite un-enforceable. I mean this not in the sense that speed limits often are un-enforceable, simply because devoting sufficient man-power to this task would force police departments to neglect other, perhaps more imperative matters; rather, I suggest that, maybe, enforcement of this law is possible only if the Fourth Amendment, already savaged by FISA, is rendered wholly void. I should like to think that merely owning a legally registered hand-gun in the city suffices not to justify “probable cause, supported by Oath or affirmation”. Then again, this is D.C., where . . .

Opponents of the gun ban say the new legislation and the city’s continued prohibition of semiautomatic weapons are not in accordance with the high court’s decision. Fenty (D) and council members, presenting a unified front on the gun ban, say they are prepared for lawsuits.

I’m neither so foolish nor insularly passionate about gun rights to contend that guns present no harm; in fact, I recognize that they present an immanent possible threat. How-ever, I also know that they can serve as protection against both tyranny and criminals. That a city so plagued by crime and illicit gun violence, despite the thirty-two-year-long ban on hand-guns, seemingly, had no choice but to resort, much to the perturbation of the ACLU, to military-style check-points in the Trinidad neighbor-hood, which experienced seven homicides, six-teen robberies and twenty assaults with dangerous weapons between the first of April and early June, would, I should think, suggest that, just maybe, the leaders of this city, who have, upon other occasions, exempli gratia, with respect to school vouchers and breaking the control of the teachers’ union, shown willing-ness to act intelligently, rather than ideologically (foolishly), ought to try allowing the good people of the District to exercise their Second Amendment right for the sake of their own lives. In-stead, they smugly concede to being ready for law-suits. Glad to know that Senator Obama includes such judicious politicians as Mayor Fenty amongst his supporters!

Even would the mayor and council relent, approving more (in my humble opinion) Constitutionally valid legislation with respect to hand-guns, the ineluctable Euclidian police power, to wit, zoning, almost stands athwart John Washingtonian’s quest legally to protect him-self and his clan, as my friend Rob Goodspeed, a recent graduate of my Community Planning program, notes here.

Just because the D.C. handgun ban has been overturned doesn’t mean you will ever be able to buy one in Washington. The reason? Zoning. This from the Wall Street Journal:

Washington has no federally licensed gun stores, so nowhere in the city can residents buy a handgun legally. Under federal law, buying one in neighboring Maryland or Virginia isn’t an option either. If gun dealers sell a firearm to a nonresident, they have to ship it to a licensed dealer in the purchaser’s home state, which then conducts the relevant background checks. “Without a dealer, there’s no place to ship the gun to,” said Mike Campbell, a spokesman for the Bureau of Alcohol, Tobacco, Firearms and Explosives.

It is unlikely that Washington will get any new dealers, either. Federal licensing requirements mandate that would-be dealers meet local guidelines and zoning ordinances. Representatives of each of the district’s eight council wards said they would vigorously oppose a gun shop in their area. They also said discussions had already begun over which regulations they might use to keep one from opening.

Rob continues

The only problem? As of now, D.C. Zoning Code says nothing about gun shops. Another issue to throw into the mix over in the D.C. zoning update …

I admit, right off the bat, that I am no Constitutional law scholar. How-ever, it seems to me that, ultimately, some-thing has to occur to allow gun shops to operate within the District’s boundaries. As much as the Supreme Court has ravished the Constitution in the name of police power (specifically, the Fifth Amendment, in Berman v. Parker and Kelo v. City of New London), the protections (in the Fifth Amendment case, against takings) still exist de jure, if only in a viciously restricted manner, if not de facto. By the same token, in light of Heller, I can-not imagine that any zoning enacted to prevent the operation of a gun shop, which, in effect, is the exercise of police power to prohibit the exercise of the Second Amendment right to bear arms, would with-stand a law-suit. How any other, non-zoning, ordinance might effectively preclude the opening of a gun store in Washington with-out suffering a similarly appropriate fate, I know not. I can only hope that, some-day, John Washingtonian can exercise the right properly to protect him-self, his family, and his property, against tyrant or thug, as guaranteed by the Constitution and affirmed by the Supreme Court, D.C. nanny-staters be damned.

All Heller breaks loose.

My timidly confessing to agreement with JA’s comment in response to Jim Manzi notwithstanding, I do believe in the (non-absolute) right to arm oneself appropriately as a matter of personal defense, against both common street thugs and the same sort of government that enforces the USA PATRIOT Act. (Paranoid? Maybe. Only maybe.) This being the case, I’m not perturbed by this unsurprising response:

A powerful pro-gun lobby group in the United States has filed legal challenges to handgun bans in San Francisco and Chicago.

I really enjoy how this issue has set lefty mayor Gavin “Pretty-boy Adulterer” Newsome against at least one gay citizen:

The NRA is joined in the San Francisco suit by a gay man living in a government-owned housing development who says he needs a gun to protect himself from potential hate crimes.

San Francisco Mayor Gavin Newsom said the city would “vigorously fight the NRA” and said the ban was good for public safety.