Daniel Barnhizer is Professor of Law and The Bradford Stone Faculty Scholar at the Michigan State University College of Law.

The Rule of Law in the State of New York is in crisis. While the Supreme Court reviews allegations that New York’s former Governor and head financial regulator bullied banks and insurance companies that did business with their political enemies, the recent arrest, trial, and sentencing of Dexter Taylor reveals that disrespect for the Rule of Law may be endemic in that state. Specifically, according to Taylor’s attorney, Judge Abena Darkeh, who was presiding over the trial, told Taylor’s defense team, “Do not bring the Second Amendment into this courtroom. It doesn’t exist here. So you can’t argue the Second Amendment. This is New York.”

As an initial matter, it is important to stress that I am not commenting on the merits of Taylor’s case. Based on news reports, Taylor was a hobbyist gunsmith who built firearms from parts legally acquired online, but was charged with violation of New York firearms statutes. The Second Amendment is relevant to cases such as Taylor’s through the argument that even if New York statutes did prohibit Taylor’s actions, those statutes are unconstitutional under the Second Amendment. The merits of the actual case, however, are a matter for Taylor, his attorneys, and the courts.

What I want to focus on here is the attitude that Judge Darkeh’s reported quote displays towards the Rule of Law. For the record, the Second Amendment exists, even in New York. That is what it means for something to be a right. It exists, whether those in power like it or not. A statement like the reported quote should terrify everyone who benefits from the freedom, stability, and security provided by the Rule of Law.

Modern theories about the Rule of Law, at least within the Anglosphere, begin with Andrew Venn Dicey’s three-point formulation of the Rule of Law as it existed in 1880s England:

  1. “[The Rule of Law] means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else.
  2. “[The Rule of Law] means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the ‘rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of ordinary tribunals . . .; and
  3. “The ‘rule of law,’ lastly, may be used as a formula for expressing the fact that with us the law of the constitution . . . are not the source but the consequence of the rights of individuals. . . . [T]hus the constitution is the result of the ordinary law of the land.” (emphases added)

Put simply, Dicey’s formula describes the Rule of Law in terms of (1) the supremacy of law rather than the will of particular individuals as the basis for state action against individuals; (2) all individuals are equal before the law and are entitled to the same protections regardless of their class or any other status-based characteristic; and (3) individual rights pre-exist and are merely confirmed by statements of those rights contained in constitutions.

Later theorists on the Rule of Law such as F.A. Hayek, Lon Fuller, Joseph Raz, and John Finnis, have expanded upon Dicey’s formulation in attempts to universalize that concept outside of Dicey’s English experience and focus. However, virtually all later scholars agree regarding key aspects of the Rule of Law. These include the propositions that laws should be general, neutral, and prospective in their application; publicly available so that individuals can know beforehand if their actions are prohibited; and applied by the state in congruence with existing declared rules. As Lon Fuller argued, principles such as these combine to form a “morality of law” that marks a well-functioning legal system.

And now we have New York. Judge Darkeh’s reported statement that “The Second Amendment doesn’t exist here. . . . This is New York.” does not represent a “well-functioning legal system.” Nor does it acknowledge the supremacy of law rather than the arbitrary will of a judge opposed to the Second Amendment. It is thus  questionable whether Taylor has been treated as equal before the law. If Judge Darkeh’s statement is accurately reported—and that statement is entirely consistent with the attitude that the New York state government has displayed in responding to the Supreme Court’s holding in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022))—the statement represents a complete abnegation of the Rule of Law.  New York is moving backward to a system in which politically anointed individuals impose their will and their personal bias against the people who are “not in the club.” In the system that is becoming ever more apparent to outside observers, New York seems more concerned with using the machinery of government to benefit one “in-group” of political actors and punish those with “outgroup” political positions, regardless of what the law says.

In contrast to the attitude displayed by the reported quote, what we really want and need from judges is a “habit” of the Rule of Law. The ideal judge within a Rule of Law system applies the law to the facts of each particular case, treats similar cases and similar facts similarly, and does not impose the judge’s personal biases onto that case. The defendant is entitled to be assessed by the law alone, not by individual bias. And yet here what the reported quote reveals is a judge deciding that she rules in her courtroom, not the law. The quote is a declaration that the law does not rule. Instead, law disfavored by the judge simply don’t apply.

The Rule of Law is a fragile social construct. It is supported and maintained only through a shared cultural commitment to that ideal. The reported quote suggests that we are in serious danger of losing that commitment.

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