by publius
If I were the plaintiffs in the Heller Second Amendment case, I would file an amicus brief with nothing but the HBO John Adams mini-series attached. Looking back to 18th century Boston, it’s much easier to see how guns and militias provided important checks on government overreach. The problem, though, is that the colonial era has passed. The expansive gun rights of that era would have far different effects in post-industrial urban society.
And that leads to one of my broader criticisms of American conservatism — from the Progressive era on through to today. Certain strands of American conservative thought have never quite come to terms with the realities of modern life — and more specifically, with the shift to industrialization and urbanization. The failure to look at modernity squarely in the face is particularly evident in law, but extends to non-legal contexts as well. I’ll start with the law though.
To repeat, the broader point is that several strands of conservative jurisprudence seem to assume a world that doesn’t exist anymore. Specifically, they assume a world where urbanization and industrialization hasn’t happened.
The Heller gun case provides a perfect example. Personally, I think the Second Amendment is textually indeterminate – i.e., the text could plausibly support either a collective or individual-based right. For that reason, parsing commas in this context is rather pointless. If there are two equally plausible textual readings, then the question should shift to policy – what should we do? What are the consequences of selecting one reading over the other?
The answer, I think, turns on the type of place you live in. If your world is 18th century Massachusetts, then broad gun rights make a lot of sense. If your world is a densely-populated housing project in the Bronx, then broad gun rights make much less sense. Indeed, they create very dangerous environments. And if your world is rural Montana, then the policy rationale shifts back the other way. Given these variations, it seems like the obvious answer is to defer to legislatures (which requires a more collective view). The elected leaders of Montana can do what they want, while DC can do what it wants. And long as Congress doesn’t ban militias, we’re all good.
The broader point, though, is that the analysis should acknowledge changing conditions. Extreme gun rights advocates like to pretend we all live in John Adams’ world. In that world, millions of complete strangers don’t live right on top of each. There, militias actually do further liberty. In our world, however, things are different. Millions of strangers are in fact clustered together. In our world, nuclear-powered industrialized armies have far more formidable weapons than muskets and cannons.
To be clear, I’m not saying we should ban guns. I’m just saying the Second Amendment is an artifact from a different era, and that its artifact-ness should influence our reading of it. More specifically, the fact that it’s a relic of the musket era should, at the least, allow modern legislatures some leeway in interpreting it.
To move beyond guns, the commerce clause is another area whether the realities of modern life aren’t exactly reckoned with. If, for instance, Justice Thomas had his way, the Court could impose rather drastic restrictions on Congress. Indeed, it’s even possible that Thomas’s reading would find legislation like the Clean Air Act – or even agencies like the EPA – to be unconstitutional. As any first-year conlaw student knows, these opinions aren’t new. They trace back at least to the New Deal.
Other than its border-line insane practical recklessness, what bothers me about Thomas’s restricted commerce clause is its failure to account for the needs of modern post-industrial life. In a small-town world without global economic integration, then maybe we could count on little “r” republican virtue to ensure that people don’t pollute, or that old people don’t starve or whatever.
But in a modern world, we can’t. States face collective actions problems and races to the bottom, and simply can’t be counted on to provide meaningful redistribution or sufficient environmental protections. The national administrative state wasn’t a tyranny forced upon the public – it was a response to the needs of an urban, industrialized country of strangers.
Moving out of law, the reliance on family and community structures to pick up the slack just isn’t realistic. For instance, in Social Security debates, you hear some conservatives argue that we should rely more heavily on charity and family structures. Indeed, Social Security is even seen as an attack on these institutions.
Social Security, however, is a response to the failure of these institutions in a modern urbanized society. Again, we don’t live in 18th century Boston. We live in a Eleanor Rigby world where families are scattered, where people don’t know their neighbors, and where old-time community networks just don’t exist (or at least nowhere near the extent they used to, if they even existed then). And as for charity, the idea that it alone could replace a system of coercive taxes and universally administered distribution is just silly.
To be blunt, ending Social Security means that some elderly people will starve – or at the very least will live in extreme poverty, just like they used to. Today, by contrast, people don’t really starve in America anymore – and this abomination is one of the more dreadful tyrannies of the New Deal and Great Society.
I’m sure there are other examples. And of course, many conservatives hold positions that don’t rely on visions of an idealized past golden era lost in a fallen corrupted world. Conservative thought is diverse and incorporates many strands. But in some of these strands – ones we’ve seen from the New Deal up through Heller – conservatives are unwilling to fully accept that post-industrialized urban society has specific needs that only government can meet.
UPDATE: Feddie responds here. He echoes one of my gripes with conservative jurisprudence — specifically, this whole bit about how the Constitution is “static” and we should deal with it. But that’s ducking the question really. Let’s assume for the sake of argument that the meaning is “static” – that still doesn’t address the indeterminacy problem. A text could have a static meaning in that it statically provides two to five to ten plausible readings.
In other words, you can’t just say “static” and be done with it. You have to say (1) it’s static; and (2) here’s what that static meaning is. For me, the Second Amendment text supports both readings. Thus, we have no strong textual or even originalist basis for deciding which one to do. Since we’re essentially just deciding and arguing on policy grounds anyway, let’s just be open about it. Let’s get rid of the facade that this is being determined by something other than policy and political preferences.
UPDATE 2: More at the new blog Appellate Review.
Similarly, if the libertarians really want to see what limited government is like look at say, early nineteenth century England, where you have the right to starve, the right to eat dangerously adulterated food and the right for four year old children to carry out hazardous work. The rise of big government isn’t simply due to enthusiastic bureaucracies, but also to seeing the dangerous effects of non-regulation.
Similiarly, conservatives who say they might support a national health service for the US say they’ll do so if it can be proved to them that it will work, and advocate for better access to the current spotty system of profit-making health insurance. This is talking as if the past sixty years of successful national health care for every other industrialised country in the world hadn’t happened, but more than that: it ignores the scientific advances that make anything but universal health insurance really impossible.
Insurance oompanies are in the business of making money. Their ideal customer is someone who never makes an insurance claim, or at least claims as little as possible. Therefore their goal is to limit their customers to the pool of people who have nothing much wrong with them – and more and more, genetic testing is going to mean that insurance companies can and will avoid taking people as customers who are genetically likely to develop diabetes, or cancer, or some other expensive ailment – or at least, making it clear from the outset they won’t pay on those claims. They will try to draw customers from the pool of profitable customers only, leaving the people who will definitely need expensive health care out in the cold.
A government can simply say: we will insure everybody. A government doesn’t have to care if their national health insurance is profitable to its shareholders, because the dividends payable on that insurance scheme are the long-term health and vitality of its citizens. Which is, in the 21st century, the only practical course.
Once again, Jesurgliac is right on about health. This water I’m drinking is really wet, too.
Publius, something in your comments jarred loose memories of an essay I read in college, and I see I’ve still got the anthology it was in. “Popular Uprisings and Civil Authority in Eighteenth-Century America”, by Pauline Maier, is fascinating reading. She doesn’t directly address the Second Amendment, but she talks about how violent resistance to government actually worked in the colonies and the new republic. She makes a distinction that seems sensible: in the colonial era, resistance was to an authority distant and often unaccountable, and certainly not directly consultative, represented at the upper levels by appointed agents who generally came from across the sea and went back when their duty was done. In the republican era, on the other hand, the governmental authority was present, available for questioning, and represented by people usually right out of the community at hand.
She briefly compares the problem of anti-governmental violence in the latter situation to blood feuding and other such methods for generating ongoing disputes. The colonial tradition of burning the assessor’s home and office and the tax rolls could be awfully unpleasant, but eventually he’d go away, the incoming guy would have the warning “don’t push it, these folks will get uppity”, and a crude sort of feedback mechanism was in place. She produces what look like good citations to the effect that anti-governmental action in the colonial era was almost all contained to property damage, and what physical harm there was to people – officials and their families – was short-term, more in the way of being shoved around than being lynched. As the stakes rose, with lasting consequences on both sides, that restraint faded, and the pitch of protest violence and response violence cranked up.
The assertion of governmental authority to be the arbiter of govermental action’s legitimacy via the courts is, in Maier’s telling, a response to the practical reality of ever nastier violent cycles. It’s not that early republican government was such great shakes at being representative, but it was at least possible for more people to go make their case (thanks in part to the First Amendment’s clause on petition for redress), and more local people could be involved in making decisions, carrying them out, and dealing with their consequences. So it seemed possible as well as desirable to marginalize the power of the mob.
In that light, the idea that a majority or plurality of the Original Dads were struggling toward something like the Swiss system seems quite plausible – not a necessary reading of the Second Amendment, but a justifiable one.
Ambiguity empowers you, when you are inclined to view it as a license to attribute meanings you like to a text you can’t change. And we all like to be empowered, don’t we? You might reflect on this, and ponder whether you’re having trouble seeing a clear meaning in the 2nd amendment only because you really, really do not LIKE that meaning.
The Constitution is damned old, written for another age, by people who didn’t share many of our modern values. It is perfectly capable of really, truly meaning something objectionable or unwise. And intellectual integrity is the ability to see what’s really there, even when you don’t like it.
Brett, thank you for acknowledging that you have no intellectual integrity.
…. Okay, I’m being snarky.
You may not like it that the text of the Second Amendment clearly references a “well-regulated militia”. But it’s there in the text. Have the intellectual integrity to acknowledge that, even if you don’t like what it implies about the modern values of the NRA.
It’s true, Brett, the rest of us just aren’t white enough to get it.
I’m fine with the militia being mentioned in the preface. In 18th century terms, a “well regulated” militia is a militia that’s properly trained and equipped. By guaranteeing the private right to own suitable weapons, the 2nd amendment safeguards a well regulated militia by guaranteeing the existence of a large pool of citizens, already owning and familiar with the relevant weapons. From such a citizenry a ‘well regulated’ militia may be expediently raised even if the formal militia system has fallen into disuse, or been deliberately discontinued by a government that doesn’t WANT a state of freedom to be secure.
It really does all hang together coherently, if you take the time to study contemporaneous sources. Mind you, it hangs together in a form the NRA is rather uncomfortable with, they threw the machine gun owners under the bus decades ago.
In 18th century terms, a “well regulated” militia is a militia that’s properly trained and equipped. By guaranteeing the private right to own suitable weapons, the 2nd amendment safeguards a well regulated militia by guaranteeing the existence of a large pool of citizens, already owning and familiar with the relevant weapons.
Indeed. And the same could apply today, except (a) having the gun controls necessary for a well-regulated militia would be opposed by the NRA: (b) there is actually no real purpose for the US having a Swiss-style militia, because there’s no real risk of foreign invasion. As the Black Panthers and the Weathermen go to show, raising a citizen militia to fight back against government attacks on freedom is much less successful in the US than political and civil resistance. Raising an armed militia can really only be said to “work”, when, as with the wingnut “survivalist” groups of the 1980s*, there’s no actual threat to combat.
*Yes, I have been reading Footfall recently. Fascinating addition to “the shape of futures past”.
As it happens, I agree with your point B; The militia system is not well suited for America today.
As to point A, I disagree: The NRA would be rather enthusiastic about gun regulations that were actually necessary for a well regulated militia; Requiring every able bodied adult who wasn’t a convicted criminal or mentally ill to own an assault rifle and practice regularly with it would be nirvana for the NRA.
What you’re talking about are the sort of regulations a well regulated militia could be used as a pretext for enacting. Preventing people from being disarmed under the pretext of militia regulation, of course, was the chief purpose of the 2nd amendment.
But both points A and B are irrelevant, the 2nd amendment continues in force until formally repealed.
So that’s why we need to remove the impediments to private ownership of thermonuclear weapons.
Hey there, NRA? Could you get moving on this? Of course, in the absence of a war or insurrection, they’ll only be used for “hunting”, with the extra added goodness that your prey is not only sorta kinda (but not *really*) humanely killed in enormous numbers, but also insta-barbequed.
Just eat around the glowing bits.
The Heller gun case provides a perfect example. Personally, I think the Second Amendment is textually indeterminate – i.e., the text could plausibly support either a collective or individual-based right. For that reason, parsing commas in this context is rather pointless. If there are two equally plausible textual readings, then the question should shift to policy – what should we do? What are the consequences of selecting one reading over the other?
Publius, this passage gets at the key philosophical issue. There is no question that the Second Amendment’s text is indeterminate — every text is at a certain level. I don’t agree with you that the text is quite as indeterminate as you make it out to be here on this particular issue (i.e., whether the reference to a “well-regulated militia” is limiting and, if so, how so?). But that’s neither here nor there; I accept that there are colorable arguments for at least two different interpretations — and likely many more two.
But the question is: once you have identified a passage that is facially indeterminate, how do you resolve the indeterminancy. I understand you to ask judges to resolve the indeterminancy on policy grounds.
Here I disagree. Judges are not well-placed to make policy judgments. They are not directly elected (not at the federal level, at least). They do not have a constituency upon which they rely. They are not responsive to the people. They have long and sometimes lifetime tenure, and are difficult to remove. There are very few effective checks on their judgments. They do not have particular training or knowledge to allow them to make better policy judgments than others. Etc.
Frankly, we don’t want judges making judgments based solely on their view of good policy. There are other branches of the government that are better suited to that. The goal of conservatives is to restrain judges by requiring them to look to specified areas (usually historical meaning) to try to resolve the inherent indeterminancy of language. You may not agree with the particular places that conservatives would have those judges look, but that only argues for them to consider other sources. It doesn’t require judges to simply become superlegislators whenever their confronted with ambiguity in a constitutional or statutory text.
Obviously, make “their” ==> “they’re” here:
“It doesn’t require judges to simply become superlegislators whenever their confronted with ambiguity in a constitutional or statutory text.”
I need more coffee.
Requiring every able bodied adult who wasn’t a convicted criminal or mentally ill to own an assault rifle and practice regularly with it would be nirvana for the NRA.
Then why do the NRA routinely oppose gun controls intended to confirm that a person attempting to buy a gun is not a convicted criminal or mentally ill, and to keep track of guns bought and sold so that if someone becomes a convicted criminal/develops mental illness, there is a record of how many guns they own?
Those would be regulations essential to a well-regulated militia. The NRA opposes them. Such regulations might have the effect of driving down gun sales a tad, and what the NRA is consistently for is ensuring a high volume of gun sales.
Preventing people from being disarmed under the pretext of militia regulation, of course, was the chief purpose of the 2nd amendment.
Wow. How smart you are to know about things that aren’t actually in either text or historical background.
If the Civilian Marksmanship Program doesn’t provide for a well regulated militia, I don’t know what does.
The Swiss have a functioning militia system in place; I don’t notice them requiring anybody to keep a suitcase nuke in their closet, or even sarin cannisters. It’s a right to be armed in the fashion of the average soldier, it’s not going to apply to nukes until we start issuing nukes to boot camp graduates.
The NRA’s big schtick is fear: fear that you need guns to protect yourself on the day that THOSE PEOPLE come boiling out of the inner cities to take your stuff (remember the folks who got shot trying to leave flooded areas of New Orleans? That’s the NRA’s meme in action.)
I expect this court will find a broad individual right to own guns – and that in 20 years, this country will resemble Iraq and/or Somalia.
It’s a right to be armed in the fashion of the average soldier
Then one would have to accept the regulations and gun control inherent in arming the average soldier. Which the NRA doesn’t.
Brent Bellmore seeks the right to be armed in the fashion of the average soldier? If we apply current standards, that means ownership of hand grenades, rifles with grenade launchers (each Marine Corps fire team (4 people/fire team) had one member with a combined rifle/grenade launcher when I trained), and, of course, fully automatic weapons.
I suppose it’s one way to deal with overpopulation…
Great post Publius.
Von wrote “Judges are not well-placed to make policy judgments.”
They may or may not be well-placed to make policy judgments, but in our system it is impossible for them not to make policy judgments. A judge would not be a judge if he or she did not make judgments. And since judges are the final authority on what a law means, they get get to make this policy judgment. This is especially true of Constitutional issues. The only way around it would be to make it easier to amend the Constitution so the legislature could easily clarify an issue that was ambiguous.
As it is, someone has to be the final authority on the meaning of a law. No matter how perfectly written, a law will have some ambiguity that needs to be resolved in some situations because every possible factual situation cannot be foreseen. Further, any attempt to write such precise laws would have the opposite effect, making them harder to understand (i.e. sometimes more precision = less useful meaning). This is particularly true of Constitutional type laws.
Brent Bellmore seeks the right to be armed in the fashion of the average soldier? If we apply current standards, that means ownership of hand grenades, rifles with grenade launchers (each Marine Corps fire team (4 people/fire team) had one member with a combined rifle/grenade launcher when I trained), and, of course, fully automatic weapons.
Unless we plan to limit this to the right to be armed like the less than average infantryman, rather than the average soldier, this would include anti-tank rockets, and probably tanks as well. It’s a nonsensical standard. Brett doesn’t even believe his own definition; he tries to limit it to a point prior to its absurdity becoming obvious.
That said, it’s a point I’m willing to concede in the practical sense. The data have convinced me that, while the US would be a lot better off if the gun genie could be put back in the bottle, that isn’t an option. The amount of gun ownership at the margins of the regulations, or lack thereof, being discussed produces very little difference in actual gun violence. So, the political capital necessary to produce more stringent gun regulation is better spent elsewhere.
The Swiss militia system is misunderstood. I sense many believe Swiss males are strolling about with military assault rifles, sucking on Ricola, with Swiss Army knives dangling from their lederhosen.
The reality is much different. Their state-issued firearms are, by law, required to be locked up and the ammunition sealed and accounted for.
The Swiss also have gun control, including registration, for privately owned guns.
Let me be clear about where I’m coming from: I am extremely hostile to the notion that proving, (In somebody’s opinion, anyway.) that a particular reading of the Constitution is imprudent counts for squat. The government doesn’t need the Constitution to rule, plenty of governments get by without one. The Constitution exists to limit government.
Governments don’t like being limited. Governments will always regard any provision of a constitution saying that they can’t do something as imprudent. Allowing the government to interpret away clauses which it is claimed are imprudent is the death of constitutions.
History, which involves this country formerly having a LOT less gun control than we have today, does not suggest that an accurate reading of the 2nd amendment is nearly AS imprudent as those with an ideological/psychological aversion to private gun ownership suppose. The US of my childhood was a country where minors could buy ammo over the counter in hardware stores, a closet was thought adequate storage for firearms, and surplus anti-tank guns were sold mail order through advertisements in the backs of magazines.
Somehow we survived. We would survive the 2nd amendment being read honestly, rather than prudently.
With respect to gun control in Switzerland, it’s clearly falacious to reason that,
Switzerland has a militia system.
Switzerland has gun control.
Therefore, gun control is necessary for a militia system.
Switzerland, today, has many gun control laws which are unrelated to maintainance of a militia system.
I remind publius (as well as Matt Yglesias and Ezra Klein and a host of other bloggers) that many Americans do not live in an urban setting. I know that seems nearly inconceivable, but it remains a fact.
Brett, gun control is necessary for any militia system. Otherwise, you don’t have a well-regulated militia: you have a bunch of lunatics and hotshots running around waving guns. If you feel that possession of large numbers of guns is a worthy goal in and of itself, you need to carefully eliminate the words “well-regulated militia” from the Second Amendment. In a practical sense, the NRA has managed to do just that.
Given the history of the US, it would be foolish to argue that ownership of guns has anything to do with freedom and civil liberties, except insofar as you wish to regard gun ownership as a worthwhile civil liberty in and of itself.
joel–then let those Americans set their own laws, and let those of us who do live in urban settings set ours. “Given these variations, it seems like the obvious answer is to defer to legislatures (which requires a more collective view). The elected leaders of Montana can do what they want, while DC can do what it wants.”
And if I were the plaintiff in a securities case, I would file a brief with nothing but a DVD of Some Like It Hot attached. Not because it has anything to do with anything, but because those cases are boring and the Justices would probably want a laugh.
Even then, Publius, since I would be a party it wouldn’t be an amicus brief. If you don’t mind a little nitpickery.
“Certain strands of American conservative thought have never quite come to terms with the realities of modern life — and more specifically, with the shift to industrialization and urbanization. The failure to look at modernity squarely in the face is particularly evident in law, but extends to non-legal contexts as well. I’ll start with the law though.”
There are certain strands of American progressives who have not come to terms with the fact that there is all ready an amendment system in place do deal with constitutional clauses that are not suitable for modern life.
If you are going to bother having a Constitution, “that clause doesn’t fit the modern world” is not an excuse for judges to mess with it.
Opening up Constitutional rights to a judicial critique of “eh, this doesn’t really fit anymore” is a great way to make certain that no Constitutional rights are protected anymore.
Maybe voting rights as envisioned by the framers don’t really fit anymore because political decisions are so darn complicated in the modern world.
Maybe free speech doesn’t really fit because the reach of crazy people on the internet is too large.
Maybe the right to a speedy trial isn’t so important anymore since the original problem was often that staying in a jail for 3 months was a death sentence from disease.
Perhaps cruel and unusual punishment should be ok because, at the time of ratification, shame worked better as a tool to check people’s criminal instincts in a tightly knit world while now we need to have more strict punitive actions available to deter.
Maybe the idea that Congress is in charge of declaring wars doesn’t make sense in the modern era.
Maybe the prohibition against having a state religion isn’t suitable anymore now that we have to fight international Islam.
I don’t believe any of those things. But if I did, it wouldn’t be appropriate for me to pretend that the proper venue for getting those changes enforced was the court system.
I’m a strict constructionist – everyone should be allowed to own a musket, musket balls, and a sufficient amount of powder.
I’m a strict constructionist – everyone should be allowed to own a musket, musket balls, and a sufficient amount of powder.
Brown Bess.
“To repeat, the broader point is that several strands of conservative jurisprudence seem to assume a world that doesn’t exist anymore. Specifically, they assume a world where urbanization and industrialization hasn’t happened.”
If I was a black father, trying to raise a family in New Orleans or Washington DC, I would have a handgun in the house. I would also find the premise of this article patronizing.
Dan – I agree. But I thought it interesting that publius seemed to be arguing from the premise that we now all live in cities.
I grew up in rural Iowa, where guns ownership was traditional and made perfect sense. My grandfather was a gunsmith and gun collector and Civil War arms buff.
Now I live in a vast urban conglomeration, and I wouldn’t dream of having a gun in the house ; not because I consider it dangerous, but because it must be kept absolutely secret lest it provide a target for burglary.
Incidentally, although I disagree with Jeslurgiac on this issue, I was struck by her point that guns are controlled in a militia. I’m an Army vet, and I remember that the M16s belonging to my units were subject to extremely stringent control, and spent most of their time inventoried and racked in a multi-locked arms room. Ammo was, if anything, even more tightly controlled.
Yet another advantage of my interpretation v. specification view:
I think I get to say that policy considerations can predominate in some “specification” cases: cases in which one is interpreting a particular term, where the meaning of that term does not settle the case at hand (e.g., is X a “search” within the meaning of the 4th Amendment, where X is plainly in the ballpark of searches, but it’s a boundary case, and it’s not clear where the boundary should be), and where some interpretation is necessary, but which is not settled by the text.
In those cases, I can easily see the court replacing one such set of specifications with another on the grounds that the world has changed, and being right to do so.
(For instance — I’m totally making this up — suppose that the original interpretation of “search” had placed a lot of weight on the fact of government agents entering a house (or whatever) and looking around, but that new technical advances, like microphones capable of picking stuff up at a distance, heat sensors, etc., meant that the government could find out a whole lot about what is going on in your house without setting foot in it.
In this case, I think it’s indeterminate, on textual grounds, whether using these new technologies to, um, investigate what’s going on in someone’s house would count as “searches” or not. The dictionary settles nothing. Some answer to the question “do these things count as searches?” is necessary; the courts can’t just shrug and say “we dunno”. Moreover, the existence of cases like this — genuinely hard cases not settled by the meaning of the text — is inevitable, given that the application of most terms is not determinate.
In this case, I think it would be fine for the court to say: here is how we will construe ‘search’; our construction preserves the meaning and fills out those bits that the meaning leaves indeterminate in ways that respect the meaning, but given that there are several such ways, we decide among them based on a number of other criteria, including things like “what fits with other bits of the Constitution?”, “what allows us to think of the legislators as basically sane?”, but also “what is good policy?”
It would be different in cases in which interpreting the meaning of a term was at issue, I think. There I’m much more inclined to go all Sebastian (on reflection, I like the idea of going all Sebastian), and say: if the world changes in such a way that we need new laws, there are procedures for getting them, and those procedures do not include justices overruling actual statutes on policy grounds.
As I said last time, though: I think that a lot of the problem in this particular case comes from the fact that we have to use judicial interpretation to do work that would, in non-constitutional cases, be done by revising the law. In a statutory case, if the justices get it wrong, the legislature can just revise the law; if the justices strike it down as too vague, the leg. can write a better one, etc. Here, such options are much, much harder, so the stakes for correct interpretation go way up.
Guns will keep us safe from the government – right. Anyway, your headline started a tune in my head so I decided to review the lyrics again:
Beck – The Golden Age
Put your hands on the wheel
Let the golden age begin
Let the window down
Feel the moonlight on your skin
Let the desert wind
Cool your aching head
Let the weight of the world
Drift away instead
These day I barely get by
I don’t even try…
—————–
Guess we could always use the guns for shooting dinner, you know, some squirrel in popcorn maker. Sorry, but earnest discussions in today’s McArdle, truthiness,upisdown,sniper shots,subpop subprime liberal fascist world seem quaint.
We need to attack absurd positions, not debate them. That we need guns to ensure our rights and protect us from the government is like saying we need to debate the flat earth society. It’s shiny object bullshit and red meat for the base. Publius is right, but that’s not why this issue has ended up on the radar screen right now.
hilzoy – that’s true, but one way to address that it to pick readings that defer to legislatures. here, for instance, if you want to free a legislature’s hand, the collective interpretation puts the least restrictions on them. if people don’t like what the justices do, they can elect different political leaders under this reading.
if the justices, by contrast, adopted an extreme individuals’ right view, that of course severely limits what people can do.
the point being is that just b/c justices are deciding non-statutory constitutional issues doesn’t mean they can’t enable the political process too
On further reflection it is tough for me to understand what your worries about the commerce clause are, publius.
For example, the SEC clearly deals with interstate commerce. Even putting fairly serious teeth back in to the commerce clause wouldn’t change things all that drastically.
While I’d be open to the idea that purely in-state pollution is a purely in-state problem, there aren’t many areas where pollution is truly in-state, so I don’t see the clause being a serious bar to the EPA for example. (And the most pollution intensive companies have clear interstate commerce issues as well, so attacking it from the commerce side doesn’t seem likely either).
A-Train, I think you missed my point (or perhaps I wasn’t clear enough). You characterize my position as follows:
Von wrote “Judges are not well-placed to make policy judgments.”
They may or may not be well-placed to make policy judgments, but in our system it is impossible for them not to make policy judgments. A judge would not be a judge if he or she did not make judgments. And since judges are the final authority on what a law means, they get get to make this policy judgment. This is especially true of Constitutional issues. The only way around it would be to make it easier to amend the Constitution so the legislature could easily clarify an issue that was ambiguous.
I do surely believe that Judges are not well-placed to make policy judgments, but I never took the position that judges never, in fact, make policy judgments. Of course they make policy. My position, however, is that “we don’t want judges making judgments based solely on their view of good policy[.]” We want to put parameters on how and what policy determinations a judge might make.
Conservatives do a very good job of at least identifying those parameters. Publius’ response is that they identify the wrong parameters. I don’t necessarily agree with that, but that isn’t my point here. What, if any, parameters would Publius or his supporters put on a judge’s ability to make policy where the language of the Constitution or a statute is indeterminate? How should a judge go about making resolving the ambiguity?
I doubt the Founding Fathers expected their Constitution, the product of the American political realities of the late 18th Century, to be treated like a sacred text for all eternity. If the Second Ammendment is ambiguous in its meaning, then the Second Ammendment can be rewritten to make clear its meaning. Handguns, bazookas, and AK-47s can be definitively excluded from the arsenals of American citizens. It can be done.
By the way, Hilzoy’s post on March 26, 2008 at 10:57 AM does a good job of identifying the kinds of criteria that restrain a judge’s ability to make policy determinatiosn. Publius seems to agree with Hilzoy on the generalities, but some of the other comments appear to adopt a more extreme reading of Publius’ original post* — one that, for the reasons identified above, is not defensible (IMHO).
von
*I would adopt a few more restrictions and use a different ranking of where to look first, and leave out the “well, what do I think is good policy” part. My perspective on these matters is not precisely Sebastritarist, but much closer to Sebastritarianism than it is to Publizoyism.
Didn’t publius explicitly say that the judges should defer to the state legislatures here?
Publius, I don’t understand how your 11:03 comment is consonant with your critique of conservatives and the Constitution.
Maybe it is that I don’t understand your critique of conservatives and the Constitution.
It looks to me like your critique is really of the idea of Constitutions. They don’t change fluidly enough for your liking (in the areas where you don’t like their restrictions). You don’t deal with the problem (or at least issue) that allowing for much more fluidity might endanger the parts of the Constitution that you do like. “Doesn’t come to terms with the realities of modern life” is a vague critique which could have all sorts of applications that you might not find comforting. I gave some examples above. They may seem ridiculous, but I wouldn’t want a judge thinking that it might be ok to decide a case with those kinds of things in mind.
So then we come to your later comment. This one sounds like an argument against judicial review, but I’m pretty sure you don’t mean that so I’m lost in the argument.
But if you are saying what it sounds like you are saying, would you be ok with a ‘leave it to the legislatures’ approach on the establishment of religion? Free speech? Cruel and Unusual?
It seems to me that if we are going to bother with a Constitution, we should take it seriously. And if sometimes it gets in the way of our preferred policy we should abandon the policy, not the idea of a strong Constitution.
And if the policy is REALLY important, we should amend the Constitution.
Any technique we create to use as a work-around to ignore the Constitution in areas that we think it isn’t up to dealing with the modern world is a tool we have created to allow other people to attack the areas that we do like.
That doesn’t seem wise if you believe in the idea of a Constitution.
Somehow we survived. We would survive the 2nd amendment being read honestly, rather than prudently.
We would survive if an attack of the magnitude of 9/11 happened each month in the US. Which approximates the annual butcher’s bill for gun deaths annually in the US.
Survival is setting the bar very low.
Re: Publius’ update:
In other words, you can’t just say “static” and be done with it. You have to say (1) it’s static; and (2) here’s what that static meaning is. For me, the Second Amendment text supports both readings. Thus, we have no strong textual or even originalist basis for deciding which one to do. Since we’re essentially just deciding and arguing on policy grounds anyway, let’s just be open about it. Let’s get rid of the facade that this is being determined by something other than policy and political preferences.
Before broadening the search to modern public policy, and since the choice is between a “broad” and “narrow” construction, why not next look to whether contemporaneous documents identify a preference for whether this right should be construed broadly or narrowly?*
von
*This idea is well-established in the common law tradition — that there’s effectively a final rule to resolve situations where applying all the prior rules gets you two possible interpretation. For instance, in patent law, the final rule (and I’m seriously paraphrasing the Athletic Alternatives case here) is that you choose the narrower scope for a patent if that narrow scope clearly enabled by the patent’s written description. The idea is that the patentee filed the patent and could have tried to get a broader scope, and thus should properly bear the burdens of any final indeterminancy. But the rule may — indeed, should — be based on what type of document is at issue. In this case, I would argue that one might find a rule to apply by looking at how the right to arms was generally understood at the time to decide whether we shade our interpretation more broadly or narrowly.
I also second Sebastian’s comment on March 26, 2008 at 11:32 AM.
Hmph. I’m now leaning to the stance that if even prudent use of a weapon has a substantial chance of causing serious collateral damage, then the user should be subject to charges afterwards. (i.e, firearm with penetration power in a crowded apartment building, or flamethrower in an urban setting).
A bit off topic, but I wanted to address this part of the post:
We live in a Eleanor Rigby world where families are scattered, where people don’t know their neighbors, and where old-time community networks just don’t exist (or at least nowhere near the extent they used to, if they even existed then).
Flexible labor markets.
Just move to where the money is, or it’s your fault if you’re poor.
Move away from your friends, family, support network, kids’ school.
Just be flexible. Who needs a community if you have a good job?
von/seb – this requires it’s own long post, but I think you are fighting strawmen to some extent. rhetoric aside, no one is saying “do anything you want on policy grounds.”
for me, it’s a two-step process. first, is a given result textually plausible. for heller, I think both “sides” are. in lawrence, i don’t. so in lawrence, it stops there – lawrence was a bad legal decision even though it’s correct on policy.
but once you’ve passed step one, then it’s anyone’s game about how to go from there. like courts have done throughout history, i support an eclectic approach of precedent, policy, etc.
my point though it that you are all are inverting the argument. you’re deciding b/w textually plausible options on policy grounds. and THEN trying to dress up that policy decision as “static” “immutable” text. you static-ness however just pre-assumes the answer that i think courts should debate.
in short, in the guise of arguing for an “unchanging” constitution, you are advancing a politically pleasing interpretation.
“For me, the Second Amendment text supports both readings. Thus, we have no strong textual or even originalist basis for deciding which one to do. Since we’re essentially just deciding and arguing on policy grounds anyway, let’s just be open about it.”
But that isn’t the end of the story. You can examine the way the text was treated at the time, the way similar texts were treated at the time, and the way things actually played out at the time to get a better understanding of what it says. You can and should do all of those things well before you get to the judges’ personal policy preferences.
In this case ‘the right of the people’ is always used in a personal right setting–throughout the Consitution and throughout other contemporaneous documents.
Sebastian: But that isn’t the end of the story. You can examine the way the text was treated at the time, the way similar texts were treated at the time, and the way things actually played out at the time to get a better understanding of what it says. You can and should do all of those things well before you get to the judges’ personal policy preferences.
Because what people thought 200 years ago about firearms, personal possession of, is more important than what people think today about firearms, personal possession of?
Aren’t the sorts of considerations publius mentions relevant to incorporation under the current precedent even if they’re not relevant to interpretation of the Second Amendment itself? I realize that this case is about D.C., not a state, & that many people say the whole Bill of Rights should be incorporated under the privileges & immunities clause. But the “essential to a scheme of ordered liberty” standard is current law, no? And I think the 2nd Amendment fails with flying colors.
In other news, I don’t like the Supreme Court very much. I was at the argument yesterday & Lithwick’s synopsis is only too accurate.
but once you’ve passed step one, then it’s anyone’s game about how to go from there. like courts have done throughout history, i support an eclectic approach of precedent, policy, etc.
But this is where I disagree — it’s “anyone’s game” where to go from there if you adopt the particular philosophy that you’re advocating. For me, it’s not anyone’s game from there. If both outcomes are plausible readings of (today’s) plain-and-ordinary meaning of the text as understood today, (taking into account the context and purpose of the whole document, of course), I next look at the plain-and-ordinary meaning at time of passage. If that doesn’t resolve it, I attempt to ascertain and define any terms of art in the text according to their meanings at the time of passage. If that doesn’t resolve it, I examine the differences and similarities with other texts of similar stature or value,* and attempt to interpret this term consistent with those other texts. If that doesn’t resolve it, I attempt to identify the historical common-law right that is being encapsulated, and seek to ascertain how that right was treated prior to passage. In this limited circumstance, I might also look to how the common law right has developed because that may be relevant to how to apply the given right today. (That’s a difference between my approach and, e.g., Scalia’s.) If that doesn’t resolve it, I look at the circumstances of passage and how any concepts were treated in other, perhaps unrelated, texts at, around, or before the time of passage. If that doesn’t resolve it, I end my search by preferring to construe grants to the people** broadly and grants to the government narrowly.
Now, that may be an entirely foolish approach and it certainly isn’t yours. But it is not “anything goes”: There’s a process and a ranking that you can apply that keeps everyone in the same conversation, if not always on the same page. But that’s not an approach that I hear you to advocate.
(I recognize, of course, that the human impulse to reach the “right” result will exist regardless of which approach is chosen.)
von
*For the Constitution, this would be the Dec. of Ind., the Northwest Ordinance, and the Articles of Confederation. I may also consider the Confederate Articles of Confederation in my search of the common law to see what the South changed, assuming that they made these changes for a reason — and thus if they change X to Y for policy preference Z, I probably should construe X in such a way to get preference Z.
**In some circumstances outside of the 13-15 amendments and the Supremecy clause, I may also construe grants to the states broadly.
I’m surprised no one has directly discussed what (level of) government is being limited by the 2nd Amendment. Is that settled?
Jesurgislac, “Because what people thought 200 years ago about firearms, personal possession of, is more important than what people think today about firearms, personal possession of?”
No, because what people thought about whether or not ‘the right of the people’ meant about individual vs. collective rights may expose that the ambiguity is really a function of a modern misunderstanding about the language the law was written in rather than a true ambiguity in the language itself.
Publius, “but I think you are fighting strawmen to some extent. rhetoric aside, no one is saying “do anything you want on policy grounds.””
I’m not trying to fight a strawman. I’m trying to understand the argument in your post.
I’m not sure that even your later formulation is all that comforting. ‘Textual Plausibility’ is in the eye of the beholder. It is apparently plausible to McCain and Feingold (along with a majority of Representatives and Senators as well as the President at the time that the right to free speech and the press does not include raising independent issue ads (which if you recall were initally banned during a window just before elections). In the case in point, the collective rights approach isn’t a completely tortured reading but it isn’t how anyone reading it before 70 years ago woud have imagined reading it–which is a pretty strong argument for it being a wrong reading. (It also depends on over-emphasizing one reading of ‘militia’ while reading the routine use out of existance). And from a precedent point of view, even the alleged lichpin of collective rights jurisprudence in the Miller case stated that the militia was expected to bring their own weapons from home.
There are lots of things in the Constitution that were deliberately written ambiguously, in the expectation that courts would work out the details latter on a case-by-case basis.
In colonial times, most law was not statutory; it was common law based on judicial precedent. The idea that judges making policy is somehow wrong would have been regarded as bizarre by the founding fathers . . .
Von’s comment is a pretty good explanation of how I think Constitutional interpretation should work in cases of apparent ambiguity.
I would add that his outline also has the virtue of being how we tend to interpret statutes in cases of apparent ambiguity when there aren’t Constitutional issues which might superceed the legislative intent. It is also consonant with how we interpret contracts in many cases (though sometimes there are statutes which compel construction against a certain party–i.e. in the case of ambiguity in an insurance contract, the ambiguity is always supposed to be assumed to be in favor of the buyer and against the seller).
I don’t think having a free for all in the case of ambiguity makes sense. And if you want that to be the policy, it doesn’t make sense for judges to do it–free for all’s belong in the legislature. (Which may be in fact your position, but I’m voting against free-for-alls in Constitutional law.)
Part of the problem with your free-for-all-in-the-case-of-ambiguity concept is that lawyers are (unfortunately) largely about creating apparent ambiguity for the purpose of leveraging it in the favor of their clients. Making the next step after an apparent ambiguity “anything goes” seems really dangerous.
I think (hope?) you have in mind some implicit limits on that (for example I suspect you wouldn’t be ok with “there is ambiguity therefore I will flip a coin for the answer), but once you come unmoored from textualism I don’t see how you justify them without it all coming down to “policies I like”. And if it is going to be “policies I like” I would prefer that judges aren’t the ones making that decision. That isn’t their role. Their role is to enact the policies chosen by other branches unless subordinate law conflicts with a governing document.
The Constitution is not a common-law document. It incorporates certain elements of the common law, as it existed at the time of ratification. But that is the extent of the Constitution’s common-law nature.
I’m all for a strict interpretation. Anyone who would like to own a saber and a musket may do so.
“In colonial times, most law was not statutory; it was common law based on judicial precedent. The idea that judges making policy is somehow wrong would have been regarded as bizarre by the founding fathers . . . ”
Common law was not looked at as ‘making policy’. It is supposed to be about formalizing already existing practices. If you want progressive changes you should appeal to legislatures. Common law is supposed to be conservative. The beauty of the Constitutional system is that it allowed both for conservatism AND progressive needs to balance against each other without the need for revolution on the one side or gestapo crack-downs on the other. It created an orderly system of change–legislatures. It created a basic governing law to reign in legislatures, but allowed even that to change–amendments.
Common law as policy is rooted deeply in the natural law position–which is to say something that I’m pretty sure you don’t accept.
Andrew-
And you sir, are free to unplug your computer and send in all of your comments to this post by way of a hand-written letter vis-a-vis pny Express.
Still want to play that game?
Great post and great discussion. Thanks, publius.
I’d like to add just a couple of things.
As Mis En Place noted upthread, there actually is a well regulated militia in Switzerland, and members of that militia are issued a standard military firearm (a fully automatic rifle) which they keep at home. As Mis En Place also noted, that firearm is kept locked, the ammunition is kept sealed, and the weapon is not to be used for any purpose other than service in the militia.
Brett notes that the Swiss have gun laws above and beyond what is needed for a well regulated militia. That is most likely correct, and if those laws existed in the US, a plain text reading of the 2nd Amendment would not, I believe, find them unconstitutional.
My general impression is that folks who bristle at gun laws are less concerned about a well regulated militia, and more concerned about owning firearms for their personal protection. It’s not clear to me that owning a firearm for personal protection is protected by the 2nd Amendment. That doesn’t mean it’s a good thing, or a bad thing. It just means it does not appear, to me, to be within the scope of the amendment’s protection.
I disagree that a citizen militia on the Swiss model would be inappropriate for the US. It’s only inappropriate if the purpose of our military extends beyond national defense. For that purpose, I think it would work perfectly well.
Thanks –
And you sir, are free to unplug your computer and send in all of your comments to this post by way of a hand-written letter vis-a-vis pny Express.
Still want to play that game?
Sure, Feddie. I love games. Have since I was a kid. Which why I used satire to point out the absurdity of the ‘original intent’ -v- ‘living constitution’ controversy.
Publius, as a big-city boy, I sympathize with your policy arguments. And I agree with you that the text of the Second Amendment is murky. But I disagree with the rest of your post.
First, state-by-state can’t do enough to limit guns in dense urban areas. City dwellers in states still under rural control need these laws as much as New Yorkers do. Also, guns are very easy to smuggle across state lines. If you’re going to successfully control guns, you need federal laws.
Second, and more importantly, while I appreciate your frustration with policy arguments dressed up as procedural or historical arguments, and I agree that our current Court is all about politics (Bush v. Gore proved that point for our generation), I don’t think we should encourage that. We are stuck with Scalia, Thomas, and Kennedy making decisions based on how they think the world should be (and early indications as to Roberts and Alito are not promising). But if the best we can do is have them keep faking playing by the rules, let’s do that, and work on making the judiciary more rule-bound, not less. I think it can work: most judges seem at least try to solve cases by the rules, not by their policy preferences.
Ultimately, we want judges to use the sorts of tools Sebastian and Von discuss, not just to indulge their policy preferences. Not just because most of the current judiciary happens to disagree with me on many points, but also because, durn it, that’s our system, and it’s more fair than some kind of mandarin-style reign-by-judges.
It seems to me that when people argue that judges should make decisions based on policy (often joined with the argument that this is what judges really do so why not admit it), they are really expressing frustration with how slow and cumbersome legislative change is. The hidden wish is that the courts act as a benign dictator: quick, efficient, and on our side. But there is no such easy out. Even when it looks like there is (e.g., Roe v. Wade, Brown v. Board of Ed), it usually turns out to be the start of the fight, not the end.
It is so great to see you back in the law blogging business. Seeing you and Feddie going at it again warms the cockles of my heart. Obviously I disagree with you, and elaborate more over at my place.
In essence, the problem for me is the gap between your first and second step that you delineate at 12:05. There is a large gap between possible and plausible interpretations. If two readings are possible (Second Amendment, arguendo), and one has far greater support, then a Judge should side with the MORE PLAUSIBLE interpretation — the one that has the greater support — regardless of policy implications.
Only when both the possible interpretations AND THEIR SUPPORT are in equipoise can you reach your step two. I sincerely doubt that this circumstance – interpretation in the absence of any clear support or precedent – is likely to arise.
In this case ‘the right of the people’ is always used in a personal right setting–throughout the Consitution and throughout other contemporaneous documents.
Perhaps.
OTOH, why include the first dozen words of the 2A if the intent was a personal or individual right? It seems to me the Framers could have omitted those dozen words if that was indeed the purpose.
I’d also point out, via Garry Wills, Madison’s original draft of the 2A directly referred to both a “well-regulated militia” and “military service.”
During the ratification debates there was little discussion about an individual or personal right but there was much to do concerning the necessity of protecting state militias from the federal government.
It may be a mistake to frame the issue as one of either a “collective” or “individual” right. Perhaps it is a civic right.
There’s a problem that I have with Sebastian’s and Von’s arguments, which other people have touched upon, but not stated explicitly. Out of the clause “the right to bear arms,” they want to interpret the word “bear” exactly as the people of the time conceived it, but they don’t want to do the same with the word “arms.” What constitutes “arms” has changed dramatically in 200 years, and they’re fine with keeping that definition up to date. They are not willing to do the same with anything else.
J. Michael Neel-
There is an important difference, however, between a fixed principle (the right to bear arms), and the application of the principle in a modern context.
The notion that the founders would have thought that the type of arms that one could own would be fixed in time is silly. What they wanted to preserve was the right of individual gun ownership as a check on governmental tyranny.
You wouldn’t assert that all first amendment speech should be limited to hand-written documents, would you? Of course not. Because while the cherished principle of free speech is static and fixed in time, the application of that right changes over time.
In all this discussion over the fixity or fluidity of The Rules, let’s not lose sight of an important fact: even the strictest of strict constructionists get all excited about WHO gets to be a Supreme Court Justice. Evidently, both liberals and conservatives agree that The Rules are open to interpretation — or else Supreme Court appointments would be less controversial than they often are.
The Founders could have specified that Supreme Court Justices be selected by competitive examination, or by seniority, or by some other method. But they did not. They made it an explicitly POLITICAL thing. Whether that was wise or not, it seems to have been a tacit acknowledgement that different judges will reach different outcomes, however fixed and immutable The Rules may be.
— TP
You wouldn’t assert that all first amendment speech should be limited to hand-written documents, would you?
‘Course not. What is the biggest limitation on free speech? Stuff that can get people hurt. Fighting words. Shouting ‘Fire!’ in a crowded building. “Clear and present danger.”
Do you suppose the proliferation of firearms in the U.S. poses a ‘clear and present danger’?
Ah, yet another topic for my list
6. 2nd Amendment/Gun control
(I can’t find my comment on what was 5., so maybe I’m repeating myself here)
Does anyone know of a time, other than during frontier wars, in which militia action was in some way useful?
The best I can come up with was some racial violence near Cincinnati that I read about back in college, where a white militia tried to burn down a walled black community and a black militia barricaded themselves in for a while in self defense, until the white militia broke into an armory and stole some cannons and put stop to it.
The notion that the founders would have thought that the type of arms that one could own would be fixed in time is silly. What they wanted to preserve was the right of individual gun ownership as a check on governmental tyranny.
If the intent of the Framers was an individual right to do battle with a tyrannical government, doesn’t that suggest individuals have a right to ‘arms’ that include everything up to and including nuclear weapons?
Well, there was the Battle of Athens; You could regard that as the militia at work.
I think Jes’s take on gun control and the militia is a textbook example of the falacy of equivocation: Maintaining a militia requires legislation regarding firearms, gun control is legislation regarding firearms, ergo, maintaining a militia requires gun control. Of course, “gun control” as we know it today is radically different, one might even say diametricly opposed, to the sort of firearms regulation required to maintain a militia.
I will grant that in limiting cases, such as Switzerland, where the continued existence of the militia is a blatent military necessity, a militia can coexist with some degree of gun control, because that gun control will never be carried far enough to threaten the militia.
Here in the US, though, no such necessity exists, or even existed at the time the 2nd amendment was drafted, and there was a very real fear that the government would attempt to render a militia impossible by disarming the citizenry. And that is what the 2nd amendment was supposed to prevent.
So the situations here and in Switzerland are somewhat different.
The notion that the founders would have thought that the type of arms that one could own would be fixed in time is silly.
There is a problem with this, too. If you make the argument that the purpose of the 2nd Amendment is to produce an effective militia, particularly one that is meant to protect us from tyranny, then it must be armed at a level that would allow it to fight effectively against an actual military.
Most of the arguers in favor of the individual rights position on the 2nd Amendment want it to apply to modern weapons, but only up to a point. They draw a line at what arms the Amendment applies to at an arbitrary level.
Two hundred years ago, the militia included artillery. It wasn’t based upon what the average soldier carried; it applied to all arms. It’s just that there wasn’t a wide divergence in power from the least weapons to the greatest.
If you are arguing the 2nd Amendment as a matter of principle, rather than practical policy application, there isn’t a reason to stop with the right to possess small arms. As soon as you do so, you have forfeited the high ground of a purely principled position.
Tony, “even the strictest of strict constructionists get all excited about WHO gets to be a Supreme Court Justice. Evidently, both liberals and conservatives agree that The Rules are open to interpretation — or else Supreme Court appointments would be less controversial than they often are.”
I don’t think this argument gets you anywhere because the Supreme Court is important both when it follows the rules and when it doesn’t. You could have one group which has pledged to completely ignoring the rules and one that follows them. Opposing the ones who want to ignore the rules could be important *because* you believe strongly in the rules. Opposing the ones who don’t like the rules doesn’t somehow call into question your commitment to the rules.
Mis, “If the intent of the Framers was an individual right to do battle with a tyrannical government, doesn’t that suggest individuals have a right to ‘arms’ that include everything up to and including nuclear weapons?”
Probably not because even back then there was a distinction between ‘arms’ and ‘ordnance’. The first is something that a militia member would be expected to have around the house and bring when called for military service. The second (cannons and the like) were sometimes owned by individuals (so we can’t totally rule it out) but not under the normal understanding of ‘arms’. I would argue that arms includes things likely to be used and carried by your average soldier. Ordnance is more like artillery and bombs.
And btw, I think this is much closer to the area of real ambiguity (the collective/personal argument is pretty much wishful thinking on the gun control advocates part so far as I’m concerned). I would say that guns which can be easily carried are clearly covered. (And please remember that no right is completely unlimited, so regulation is possible it will just be under a more-like strict scrutiny review). Nuclear bombs, mines, etc. sound more like ordnance to me. Grenandes would probably be an interesting borderline case.
“Because while the cherished principle of free speech is static and fixed in time, the application of that right changes over time.”
OMG, living constitutionalist! I cast thee out!
Okay, that was obnoxious, but seriously: this sounds a lot like what Jack Balkin calls “text & principles” & what I’d call “purposive textualism”, and yet when we do it you call it “judicial tyranny”.
“Okay, that was obnoxious, but seriously: this sounds a lot like what Jack Balkin calls “text & principles” & what I’d call “purposive textualism”, and yet when we do it you call it “judicial tyranny”.”
I think a lot of it has to do with questions of fact vs. morals. On a question of fact, the court can take judicial notice of a change in facts.
So take for example a theoretical Constitutional right of minors not to have poisons sold to them. If the writers of the text believed that mercury was non-poisonous, but we later found out that it was in fact poisonous, the Court could take judicial notice of the discovery.
Most of ‘free speech’ that people want to protect on the internet really falls under “the press”. Most people don’t realize that because the news media has transformed the idea into “the PRESS” as if it were a special elite group of people who get Constitutional protection that other people don’t get. So if the Court wants to take judicial notice of the fact that press communications happen on the internet, they can do so.
Or to take hilzoy’s extension idea, ‘search’. It is a closer case than “the press” (which I think is almost a slam dunk). But if you look at the history of searches, it was not only about physical intrusion, but also about the privacy of content—see especially private letters wherever found. So the intrusion of private things to discover their contents, even if not a physical intrusion, would tend to be a search. This would include high-tech goggles, wiretapping, and key-logging a private computer.
The areas you are talking about aren’t much like that. Take gay rights for instance. There definitely isn’t a firm enumerated right on the subject. No normal extension of enumerated rights gets you there. So then you have to appeal to one of the broad rights amendments. The problem there is that they don’t seem intended to protect new rights, but rather ensure that the same old rights that everyone else had gets applied to people who were denied them (with a special view to former slaves, but it applies to everyone). You could try to appeal to a traditional right of completely unfettered sexual autonomy, but that right has never existed (see adultery laws or cousin marriage laws or anti-prostitution laws). So you have to shoe-horn new rights in, but it isn’t at all clear that new rights are supposed to be introduced into the system that way. I.e. it isn’t obvious that those amendments cover rights which haven’t become firmly embedded in the society. (I’m open to the idea that after a generation or two of the government acting as if there was a right, that it makes it in under those clauses but that clearly isn’t where we are with those rights).
A similar case is the death penalty: I agree that “cruel and unusual” is meant to change with the society over time. But the Court can’t be the vanguard on that issue. If such clauses are meant to reflect societal change—the Courts can’t enforce them until the society actually changes. Society actually uses the internet like a press. It doesn’t (unfortunately) totally accept gay people. If I want to make law on the second topic, I need to appeal to legislatures.
Sebastian: Take gay rights for instance. There definitely isn’t a firm enumerated right on the subject. No normal extension of enumerated rights gets you there.
Oh, for heaven’s sake. If the Second Amendment is intended to cover the people’s right to bear arms in a militia, and if the National Guard constitutes the “well-regulated militia” of the Second Amendment, then any denial of an LGB or T’s citizen’s right to serve is plainly unConstitutional, since it removes their right to bear arms in a well-regulated militia.
States have the right to decide marriage law – Tenth Amendment: the Constitution explicitly requires each state to recognise each other’s marriage law: so the recent proliferation of state laws declaring they’re not going to recognise a legal marriage or a civil union made in another state are all unConstitutional (the legal arguments are all on fours with the old interracial marriage freakouts, and those were declared unConstitutional 40 years ago) and the federal law allowing the government to dictate that a man can’t marry the partner of his choice because he’s the wrong gender, is certainly unConstitutional.
The problem is that most conservatives argue that gay rights aren’t Constitutional because in their view, in the good old days, LGBT led lives of misery, secrets, and silence, and they want that “Golden Age” back.
Just one more
2nd Amendment Reality Check
“Again, I disagree. While individuals rarely had artillery at home, the militia certainly had it. There were plenty of cannons kept in armories that were not under government control.”
I’m not clear with what you are disagreeing. The fact that private people held artillery (which they certainly did) doesn’t mean that there was no distinction between ‘arms’ and ‘ordnance’ (which there was in common parlance at the time). And ‘arms’ definitely has a Constitutional amendment, while ‘ordnance’ may not be covered in that.
Look how you are arguing—that because the 2nd amendment seems to have been made at a time when both arms and ordnance were in private hands, and that because arms were protected by the amendment, since we don’t like the idea of ordnance being protected, therefore arms aren’t protected.
That doesn’t follow. More likely, arms were Constitutionally protected, and ordnance was just permitted with no Constitutional ramifications either way. Or perhaps arms AND ordnance are Constitutionally protected. But getting from that to NEITHER being Constitutionally protected doesn’t look like good reading and/or history.
“If the Second Amendment is intended to cover the people’s right to bear arms in a militia”
But it’s not. People don’t have any right in this country to bear arms in a militia. That’s well established, and was even at the time the 2nd amendment was ratified.
Bearing arms in a militia is a legal duty, not a right.
The right is to bear arms outside a militia, so that if the government from negligence or worse motives discontinues the militia system, an armed populace will exist from which one can be speedily raised at necessity.
“Oh, for heaven’s sake. If the Second Amendment is intended to cover the people’s right to bear arms in a militia, and if the National Guard constitutes the “well-regulated militia” of the Second Amendment, then any denial of an LGB or T’s citizen’s right to serve is plainly unConstitutional, since it removes their right to bear arms in a well-regulated militia.”
I’m fully ok with the idea that the Constitution doesn’t allow the government to deny gays the right to bear arms, or free speech, or of the press, etc. They are citizens and are due all of the rights of citizenry.
In Switzerland, one is also required to train for 18-21 months, and then 3-4 weeks per year until age 26. Then comes a reserve obligation. If you want to go through that in order to be able to have an automatic rifle in your house, then knock yourself out.
Sebastian,
When you speak of “enumerated rights” you worry me. Persons have rights. Government has powers. We enumerate the POWERS we grant to our government. The Bill of Rights is an enumerated list of LIMITATIONS OF GOVERNMENT POWER, not a list of the “enumerated rights” of anybody.
To persons, everything not forbidden is permitted. To our government, everything not permitted is forbidden. Some judges would agree about that, some would not. What the Constitution “means” depends on which kind of judges interpret it.
You think some judges intepret “wrongly”. So do I. But I bet we differ on which judges those are. How do you propose to settle THAT dispute? If there were some algorithmic way to deduce from text and precedent what The Rules are, the Founders could have saved us all a lot of trouble and specified that Supreme Court Justices shall be chosen by lot.
— TP
“If you want to go through that in order to be able to have an automatic rifle in your house”
Having trouble comprehending the concept of a “right”? The founders approved of Switzerland’s militia system, but the Swiss don’t have a constitutionally guaranteed right to keep and bear arms. Their government lets them keep and bear, under carefully regulated terms, because it can’t, militarilly, afford not to have every available warm body armed, given it’s neighborhood and history.
seems like most of the people here should be able to recite this entire thread from memory by now.
Because what people thought 200 years ago about firearms, personal possession of, is more important than what people think today about firearms, personal possession of?
Yes, when it comes to what a provision of the Constitution means. The principle of constitutional government means you stick with provisions until amended. What Sebastian said at 11:32 a.m.
If the provision is so ridiculous, try to get it amended. That way, you will see what people think about it today. It’s clear from the comments here that there would be support for its repeal (though not from me).
Forget the “policy” argument re the judiciary;
what von and sebastian said.
It’s still amazing to me that people would prefer judges to make decisions that are left to the people.
So that’s why we need to remove the impediments to private ownership of thermonuclear weapons.
What Sebastian said re “ordinance.” Also, the militia didn’t own a navy.
Re: usefulness of 2nd A today:
I see the anachronism to a point. I’d like to think that it’s not that meaningful today, but I’m not so sure. You sure wouldn’t want to take away all the weapons and be sorry later. Plus, the experience in the Warsaw Ghetto and in Russia (not to mention Iraq) shows that an awful lot can be done with common weapons.
For all the gun control advocates, I read this article in Imprimis when it came out and found it interesting regarding gun control statistics and media reporting of gun crime and media coverage of guns in general.
Personally, I keep my .30-06 stored under my bed with the bolt hidden and the ammo in an entirely different location. Not much good to stop the burglar, but I’m ready for the militia call up! I’m debating between a .45 pistol (for bear protection while hiking) and a 9mm (personal and family defense) for my first pistol.
We need to attack absurd positions, not debate them. That we need guns to ensure our rights and protect us from the government is like saying we need to debate the flat earth society.
One could argue that the 2nd Amendment’s effectiveness can be measured by the fact that this opinion exists today.
Bearing arms in a militia is a legal duty, not a right.
Not according to a literal interpretation of the Second Amendment. Which I thought was something you were all for?
True, a well-regulated militia would not permit someone to serve/bear arms who was plainly not fit to serve – physically incapable, mentally incapable, morally incapable. Homophobic bigots argue that LGBT people are one or more of the above: but armies from the UK to Israel can show otherwise, as of course can the many LGBT soldiers in the US military who served in the closet and came out only on retirement.
The Swiss example seems appropriate as a vision of what the founders intended. There, a person is allowed to own ONE semi-automatic weapon which is kept at home, unloaded and locked. To carry a firearm in public, you have to satisfying the following requirements:
* The ammunition must be separated from the gun, no ammunition in a magazine.
* The transport has to be direct, ie:
o For courses or exercises hosted by marksmanship, hunting or military organizations,
o To an army warehouse and back,
o To and from a holder of a valid arms trade permit,
o To and from a specific event, e.g. gun shows.
http://en.wikipedia.org/wiki/Gun_politics_in_Switzerland
I’m perfectly OK with this, but its miles away from the NRA ideal in which anyone can own and carry around any number of firearms without restriction or registration. So lets have a well regulated militia-Swiss style!
Oh, SH, surely you know my answer on gay rights: the right is equal protection of the laws, enumerated in the 14th amendment.
You: but it doesn’t mention gay rights.
Me: It doesn’t mention race either, and yet we think it forbids racial discrimination.
You: But the original expectations & historical context shows that the clause was about forbidding discrimination against freed slaves.
Me: The original expectations were mixed as to de jure segregation, and yet you concede that it does prohibit segregation. The original expectation was that it allowed miscegenation laws, and yet you concede that Loving was correctly decided. The historical context says nothing about treating discrimination against a privileged white majority the same as discrimination against freed slaves, and yet you think affirmative action is unconstitutional. In those situations, and for the first amendment, and the second amendment, you recognize that the text & underlying principles can be legitimately applied beyond the original expected application. So why is doing the same thing here suddenly a tyrannical usurpation rather than a good faith interpretation that you don’t agree with?
I know you have a response to that too–and I apologize if I got some of your previous responses wrong. But look, we’ve been through this about 100 times.
“Not according to a literal interpretation of the Second Amendment. Which I thought was something you were all for?”
I am all for a literal reading of the Second amendment, which if you look it up, does NOT include the phrase, “the people’s right to bear arms in a militia”, but instead guarantees a right which is NOT so qualified.
“I know you have a response to that too–and I apologize if I got some of your previous responses wrong. But look, we’ve been through this about 100 times.”
Sure we have, and I know it is exasperating. And there we are.
But when someone here (in this case publius) expressly advocates an anything goes standard whenever ‘ambiguity’ exists seems to me worth arguing against.
“The historical context says nothing about treating discrimination against a privileged white majority the same as discrimination against freed slaves, and yet you think affirmative action is unconstitutional.”
This is the type of thing that worries me. The step from all citizens getting the equal protection of the laws to “some citizens get special protections of the laws” is a rather large one.
And for the record, affirmative action by private parties is fine. Affirmative action by the government violates the amendment.
“So why is doing the same thing here suddenly a tyrannical usurpation rather than a good faith interpretation that you don’t agree with?”
Because your ‘the same thing here’, isn’t.
It is the same thing that Brennan did with the death penalty. When you use extensions so far as to reach conclusions which are directly opposed to the text of the Constitution–that the death penalty is always illegal, or that racial discrimination is permitted (and some say mandated) by the 14th, you are going too far. You are going too far well before that, but definitely at that point.
Given the vagaries of grammar, that is unfortunately debatable.
Everything is debatable, but frequently one side in the debate is wrong. What Jes proposes is a constitutional right to bear arms in a militia. It is well established that nobody has a right to be in the militia. Being in the militia isn’t a right, it’s a duty, and the 2nd amendment didn’t change that.
What Jes really wants to to, of course, is to transmogrify the 2nd amendment’s right to keep and bear arms, into a ‘right’ to keep and bear them, for the government, when and only when the government wants you to.
It’s an elementary matter that a “right” has to be interpreted as something which can reasonably be characterized as a right. Jes is trying to turn the 2nd amendment right of the people into a restatement of the obvious: That the government is entitled to have it’s soldiers armed.
You have to be pretty desperate to avoid reading the 2nd amendment as meaning something meaningful, to think that reasonable.
Well, sidestepping the gay rights, affirmative action & capital punishment debates, “if the text is ambiguous, anything goes” can mean different things. If it means “if a clever advocate can come up with a colorable argument either way,” then yes, that’s too far. If it means, “after careful consideration of text & precedent, I the judge genuinely believe that the text does not answer this question & so I’m going to weigh the policy implications”, that’s a different story. But I would put it differently than publius. I would say not that “the text is ambiguous, so policy decides it,” so much as: the text & our precedents use terms that it is impossible to apply without sometimes making moral & policy judgment calls, and it’s better to be honest about the fact that we’re doing so.
Ah, this again. Seb:
“I think a lot of it has to do with questions of fact vs. morals. On a question of fact, the court can take judicial notice of a change in facts.
So take for example a theoretical Constitutional right of minors not to have poisons sold to them. If the writers of the text believed that mercury was non-poisonous, but we later found out that it was in fact poisonous, the Court could take judicial notice of the discovery. ”
I don’t think this is about facts v. morals at all. It’s about the meaning of a term vs. its extension (the things that term is rightly applied to.)
Thus, a “poison” (quickly opens Merriam/Webster) is”a substance that through its chemical action usually kills, injures, or impairs an organism”. That’s what the term “poison” means. If the people who drafted some law had referred to “poisons”, and it turned out that some substance they thought was innocuous (e.g., lead paint) was in fact a poison, then whatever that law said about “poisons” would apply to lead paint, with no change of meaning whatsoever.
Likewise, if the people who write some law use some moral term, and we come to believe that something they thought that term did not apply to is in fact covered by it, then we can, without change of meaning, use that term to refer to it. It is exactly like “poison”.
Thus, suppose some law bans “unions abhorrent to Nature”, and the people who draft that law believe that gay marriages are, in fact, such a union. Then suppose that we, having considered e.g. the gay penguins, etc., come to believe that they are in fact not abhorrent to nature. (Or maybe we come to think that nature is not capable of abhorrence.) Then we can conclude that gay marriage is not banned under that law, with no change in meaning.
To suppose that moral terms are different from other terms in this respect, I think you’d have to think that unlike all other terms, what a moral term X actually means is not, well, X, but “whatever the people who wrote the law/Constitution/whatever thought was an X.”
But why would one think that? If (to use my hypothetical example) some legislative body wanted to ban all the unions they took to be abhorrent to nature, they could just have done so explicitly. That the (imaginary) statute doesn’t ban “unions we, the present legislators, think are abhorrent to nature, but “unions abhorrent to nature” suggests that they were trying to ban the unions that actually are abhorrent to nature, whatever anyone might think about the matter.
To my mind, interpreting “unions abhorrent to nature” as if it meant “unions we, the present legislators, think are abhorrent to nature” is a flat misinterpretation, for exactly the same reasons that it would be a flat misinterpretation to say that “poisons” actually means “those substances that the people who wrote this law think, however wrongly, are substances that through their chemical action usually kill, injure, or impair an organism.” That is not what “poison” means.
Also, while a change in morals is not exactly the same thing as a change in facts, it is often based upon a change in facts rather than public morality just sort of arbitrarily swinging in the breeze.
It is unclear to me that this is one of these times, however.
Mind you, I lean more to the side of less control, but after this debate, I do not find it that unambiguous.
I shall bear in mind for future reference that you can get conservatives who normally argue that the Second Amendment means a right to bear arms backtracking and flailing a bit and arguing that there’s no “right to bear arms” …. simply by pointing out that a strict interpretation of the Second Amendment makes all that opposition to gays in the military unConstitutional. 😉
“Likewise, if the people who write some law use some moral term, and we come to believe that something they thought that term did not apply to is in fact covered by it, then we can, without change of meaning, use that term to refer to it. It is exactly like “poison”.”
I agree entirely. But the society changes and the court follows the change. That is why if the US accepted gay marriage for a generation and then tried to take it away, I think there could be a problem under the 14th amendment. But the court can’t lead in cases like that. In the poison case a new discovery can come to light and the court can take notice of it the moment it happens.
In the “the society has changed its morals” case, the Court can’t lead because it can’t legitimately act until the society has actually changed its morals.
(For example: my view of whether it’s ever morally justifiable for the United States to authorize torture is very much informed by the facts about what happened when we did authorize it. My view of whether a private right of gun ownership is necessary for a “scheme of ordered liberty” is informed by the factual existence of liberal democracies that ban gun ownership & remain liberal democracies, and the factual existence of tyrannical dictatorships where every family owns a Kalashnikov or an AK-47. etc.)
“My view of whether a private right of gun ownership is necessary for a “scheme of ordered liberty” is informed by the factual existence of liberal democracies that ban gun ownership & remain liberal democracies, and the factual existence of tyrannical dictatorships where every family owns a Kalashnikov or an AK-47. etc.”
But that isn’t an acceptable Constitutional argument. You don’t get to write off Constitutional rights because other successful countries do without them or with severely watered down versions of them–see for example free speech and the UK. Or for the matter the 4th amendment and the UK. All the screaming over the evils of the Patriot Act and it doesn’t even get us as far as things that are only moderately controversial in the UK. (DNA testing an entire town anyone?)
If you are going to take the Constitution seriously you have to let it protect all of the things it protects. I’m not saying you have to love it. And you can certainly amend it. But you can’t try to kill off the 2nd amendment outside of the amendment process without doing serious damage to the integrity of the whole project.
It is like Clinton trying to win the nomination by tearing the Democratic Party to shreds. You may personally win, but the whole system would have been in much better shape if you hadn’t.
The 2nd amendment doesn’t have to be your favorite. I’m not even sure I’d include something like it if I were personally making a constitution. I don’t own a gun as I live in one of the safer big cities in the US. But the constitutional project (and lots of rights I do like in it) absolutely depends on not treating parts you personally aren’t fond of as optional.
I shall bear in mind for future reference that you can get conservatives who normally argue that the Second Amendment means a right to bear arms backtracking and flailing a bit and arguing that there’s no “right to bear arms” …. simply by pointing out that a strict interpretation of the Second Amendment makes all that opposition to gays in the military unConstitutional.
Only if one limits the right to bear arms to serving in the military, which is obviously not the case; and doesn’t recognize the right to do so in private life, which you are unwilling to do. You’re playing a semantic game, but it’s really not getting you anywhere. There is a right to bear arms; there is — at least currently — no right to serve in the military. There’s no contradiction at all between those two things as written.
If I had my druthers, I’d scrap the second amendment and make clear that there exists a right to self-defense which includes the right to use lethal force when necessary, and includes the right to do so with a firearm. And I’d rather have it enacted via state constitutions, not at the federal level.
All this theory is interesting, but I rarely see a discussion of the reality. We’re approaching 300 million firearms in private hands in this country. Forget the fact that it is likely impossible – assume that the 2nd amendment gets repealed tomorrow – or that the Supremes decide it means that only National Guard troops are allowed to bear arms – now what?
cold dead hands
How do you propose to get those 300 million guns out of private hands? You make private ownership illegal and establish some kind of time period where guns must be turned in. You get some percentage, far less than half IMO. Then what? You say we really really mean it – a bunch of people are in violation of the law. You establish an amnesty period and send notices to every registered gun owner who has guns unaccounted for that they are in violation of the law. That might get you another few million. Then what? Are you going to send the cops door to door across the country as they are doing in DC now? Are you going to issue neighborhood level search warrants? Have the SWAT team bust through the doors? How many armed stand-offs will there be and what will be the policy in those cases? How many Ruby Ridge episodes would we see? Are you going to send the regular Army against the state of Texas? And all that is only in terms of registered guns that you have a record of. I’m a law abiding citizen and I’m scrupulous about gun regulations. But every time this discussion comes up it makes me want to go out and acquire a gun that I don’t have to register – just to be sure that the government does not have it on record. I’m sure that many people have done exactly that…
You can’t stuff the genie back into the bottle.
Seb: I can see a role for arguments from experience, though (again) when dealing with specifications of terms, not when dealing with their meanings.
For instance: as I understand it (and I’m doing this off the top of my head, so I could be all wrong,) the justification for the exclusionary rule is: if we let the police introduce evidence gained through unlawful searches, the ban on those searches would be meaningless. (At least, absent draconian punishments to the officers involved: maybe “sure, the evidence can be introduced, but by someone else, since you yourself will be shot as soon as you’ve finished giving evidence in the case” would work.)
Suppose that some other country came up with an ingenious scheme whereby evidence obtained in illegal searches could be introduced at trial, allowing more actually guilty people to be convicted on the basis of actual evidence, without providing an incentive for the police to engage in such searches, and also without doing something even more horrible (e.g., killing the cops, in my example above.) And suppose that there didn’t seem to be any good reason to think that that country was dissimilar from us in ways that would prevent their scheme from working here.
To me, the fact that such a thing turned out to work might be quite relevant to our courts. Aha, they might say: the whole reason we adopted the exclusionary rule was because we wanted to produce this effect: keeping the state from having an incentive to disregard Constitutional rights, so that those rights would be actually observed. We didn’t like excluding the evidence per se — criminals should be convicted, when there is evidence against them — but we accepted that as the price of safeguarding the rights in the Constitution. If you had come before us and said: here’s a merely hypothetical way in which you could, in theory, safeguard these rights, we’d say: sorry, hypotheticals aren’t good enough. But now that we see that this actually works in what looks like a relevantly similar country, we will give it a try.
Would that be wrong?
(Note: everything turns on the fact that this is not about e.g. the correct interpretation of ‘search’, but the correct way to devise a scheme that produces a given result, namely safeguarding a right. I would not extend it beyond such cases.)
Personally, I think original intent is what matters here, which is why liberal protestations against the second amendment ring hollow for me. It seems painfully obvious what the framers intended, and that intent should be honored. Therefore, any laws banning the ownership of flintlock pistols or flintlock rifles by the citizenry would clearly be unconstitutional…
You can’t stuff the genie back into the bottle.
On the morning Wednesday 13th March a man made his way into Dunblane Primary School: he was carrying multiple licensed guns and a lot of ammunition. His name was Thomas Hamilton.
He killed 16 children, aged five, and one teacher: he wounded 10 more children, aged 5, and three other teachers. I think one child escaped unwounded – her teacher had grabbed her and two or three other children and dived into a cupboard.
The next morning, the flag on Edinburgh Castle was at half-mast. (This isn’t supposed to happen except at times of official national mourning: but… sometimes it doesn’t have to be official to be real.)
It came out that Hamilton owned a lot of guns, and all of them licensed. The senior police officer ultimately responsible for licensing Thomas Hamilton’s guns resigned.
There was a genuine public groundswell of revulsion for private gun ownership after Dunblane. The government, which was much more sympathetic to the gun owners making noises about “emotional reactions” than to the emotional reactions of the bereaved parents, initially tried to downplay it: but it was one of the few instances I can think of in my lifetime where a widespread, grassroots, groundswell of opinion quite literally rose up and pushed the government into taking action.
So sometimes you can push the genie back into the bottle. Some of the way. But it does seem to have to be something peculiarly terrible that does it. 16 children dead out of a class of 27 was just that horrible.
Dunblane was in 1996. Sorry, I didn’t even realize I hadn’t included the year till I re-read the comment. It still feels very vivid to me. The 16 children who were killed would have been leaving school this year or next year, taking exams, preparing for university.
The 2nd amendment doesn’t have to be your favorite. I’m not even sure I’d include something like it if I were personally making a constitution.
I would be in favor of a Constitutional amendment which spelled out rights, priveledges and obligations in specific, obvious manner. I wouldn’t even have to agree with the text — just having something that isn’t ambiguous (and the fact that we have very smart people of good will on both sides of the debate right here indicates to me that it **is** ambiguous) would be a good start.
====
OCSteve, how is you description of guns different from illegal drugs? If difficulty of enforcement is a criteria, there are any number of laws that might be (but probably shouldn’t be) changed?
A few responses ….
Regarding JM Neal’s post at 2:53 on 3/26:
There’s a problem that I have with Sebastian’s and Von’s arguments, which other people have touched upon, but not stated explicitly. Out of the clause “the right to bear arms,” they want to interpret the word “bear” exactly as the people of the time conceived it, but they don’t want to do the same with the word “arms.”
First, I don’t think you can parse “bear” separately from “arms” in the manner that you do. Just like “freedom of speech” is a term of art (e.g., one doesn’t separately define “freedom” and “speech” to understand the right), so is the “right to bear arms.”
Second, although you’re right to assume that I now favor what is (wrongly, in my view) called an “individual rights” approach to the Second Amendment, I originally read it as a collective right. It was only after further thought and study that I concluded that it was really a civic right — to borrow Mis En Place‘s apt term — that includes an individual right. That is, the core right is to the people to be armed so that they may defend themselves against enemies, foreign and domestic, perhaps even including their state and federal governments (n.b. the Declaration of Independence here & it’s express recognition of a right of revolution against tyranny). This necessarily carries with it an individual right to possess arms unfettered to at least some degree from the regulations of any government. (The reference is, after all, to a right to bear arms and not a right to bear ordnance.)
Regarding Sebastian‘s arguments regarding Lawrence: I really should disagree with Lawrence, just as I probably should disagree with Griswold. But I have real difficulty following my philosophy on those two decisions. (Easier is to accept is that gay marriage should be achieve via legislative action; ridiculously easy to agree that Roe was wrongly decided.) Had I been on those panels, I would probably would have found some studiously duplicitous way to concur in the judgment without concuring in the reasoning.
Or, as I have phrased my particular strain of Republicanism to others: Wars, low taxes and gay marriage for everyone!
To persons, everything not forbidden is permitted. To our government, everything not permitted is forbidden. Some judges would agree about that, some would not. What the Constitution “means” depends on which kind of judges interpret it.
Interesting comment, TP. Although I probably disagree with you on any number of things, you’ll note that my comment above cleaves to the old Anglo-Saxon maxim: That which is not prohibited is permitted. (Constrast with the Civil (Roman) law version: nec si non obstatur propterea etiam permittitur, that an act is not prohibited, it does not follow that it is permitted — credited to Cicero.)
Now, an opportunity to disagree with Sebastian:
That is why if the US accepted gay marriage for a generation and then tried to take it away, I think there could be a problem under the 14th amendment.
What? I am very much in favor of gay marriage, but I don’t know that this follows. The US accepted segregation for several generations under the 14th, but that didn’t make it right.
Whoops. I think that I slipped from legal to moral analysis in my last clause:
“but that didn’t make it right” should be “but that didn’t make it a right”.
Considering the abeyance of the bulk of the Constitution, an expansive interpretation of the 2nd Amendment is necessary to accommodate the recourse to rebellion mentioned in the Universal Declaration of Human Rights.
The “ordered liberty” thing is in fact the current legal test for 14th amendment incorporation, right? I’m using that as an example of how factual information is relevant when you apply legal tests, nothing more.
“That is why if the US accepted gay marriage for a generation and then tried to take it away, I think there could be a problem under the 14th amendment.
What? I am very much in favor of gay marriage, but I don’t know that this follows.”
Because I think the 14th amendment includes the privileges and immunities of citizenship in a way that contemplates the idea of privileges and immunities of citizenship changing over time. If marriage both gay and straight were accepted in the society for some time as one of the privileges of citizenship (this contemplates a federal recognition probably) for some time, and then they tried to take it away just for gay people, it would probably run afoul of the clause.
(That is my initial not-thought-deeply-about-it take. The privileges and immunities clause is of course a dead letter in real Constitutional law, which is stupid.)
“The “ordered liberty” thing is in fact the current legal test for 14th amendment incorporation, right? I’m using that as an example of how factual information is relevant when you apply legal tests, nothing more.”
I don’t understand your point. The Heller case is about DC, which is controlled by the federal government. You don’t need to think about incorporation for that.
Furthermore the incorporation doctrine is such a mess that calling any part of it a ‘test’ isn’t really accurate. And again, you probably won’t like where those facts lead you if you are going to take that test seriously. 1st amendment apparently not that necessary. 4th amendment apparently not that necessary.
Are you arguing that search and seizure rules shouldn’t apply to the states? That states should be able to have libel laws that would chill the 1st amendment?
Once a marriage has been accepted as legal, deciding that marriages which are currently accepted as legal are no longer legal always causes problems.
The conservative campaigning to be Prime Minister of Spain in their recent elections, was running on a platform that included denying same-sex couples the legal ability to adopt as a couple: but although he was clearly hoping to attract the homophobic/Catholic vote, he did not offer to abolish same-sex marriage. Once allow couples to marry legally, trying to legally unmarry them against their will is problematic, to say the least.
Because I think the 14th amendment includes the privileges and immunities of citizenship in a way that contemplates the idea of privileges and immunities of citizenship changing over time.
Wouldn’t this apply to Roe v Wade as well? We have accepted abortion rights for a generation, so, regardless of the original Constitutionality of the decision, the priviledge to end a pregnancy cannot be taken away. (I know nothing about all this, so this is a serious question.)
Considering that at least 4 major elections since then have featured Roe as a major theme, I would say that it hasn’t been accepted. I would also say that some Roe questions could change on facts (viability outside of the womb at earlier ages can change the weight of the ‘burden on the woman’ portion of the issue).
It also depends on what you mean by ‘Roe’. Maximalist NARAL understanding or something a lot less.
Sebastian: I would also say that some Roe questions could change on facts (viability outside of the womb at earlier ages can change the weight of the ‘burden on the woman’ portion of the issue).
Could, but as we’re decades if not centuries off from developing a uterine replicator which would mean an unwanted fetus could be removed, implanted, and the replicator/contents handed over to the nearest “pro-life” protester to parent, this is the realm of science-fiction rather than serious legislative discussion. Until the development of a uterine replicator, a fetus’s theoretical viability outside the womb is irrelevant to a discussion of a woman’s right to terminate an unwanted pregnancy. As you know, because we discussed this to death last time it came up.
Considering that at least 4 major elections since then have featured Roe as a major theme, I would say that it hasn’t been accepted.
There are certainly some people who don’t accept that a woman should ever be able to safely terminate an unwanted pregnancy, but numerically they’re an extreme minority, even if conservative Presidents need them enough to placate them with global gag rules and the like.
You know, it’s late, I’m coming down with some kind of springtime flu, I’m halfway through a JB on the rocks, and I’m headed for bed. That may have some bearing on my thought process at the moment.
But I can’t help thinking that this whole debate comes down to the fact that Americans love them some guns.
Seriously, WTF is that about?
And so, to bed.
Thanks –
What part of “shall not be infringed” do you guys not understand??? Why are you guys so afraid of a few criminals with guns?? The current stats for the U.S. state we have about 14,000 gun deaths/year. Contrast that to the 6 million Jews that Hitler killed in 12 years or the millions of Russians that Lenin and Stalin killed. History bears out that we should be much more afraid of governments than common criminals, yet all of you are willing to throw the right that protects us from such tyranny under the bus!!!
Every time someone mentions rounding up 12 million illegal immigrants and sending them back to Mexico, the first thing that gets said (by both conservatives and liberals), is that it would be impossible with those kind of numbers. How, then, do you think that the government would go about rounding up 300 MILLION guns???!!!?? Sure, many of the law-abiding folks would give their guns up, but do you think the criminals would??
That’s the problem with all of your theories of gun control and registration. Do you really think that someone who is ok with raping/robbing/murdering gives a damn about a gun law??? Has the war on drugs stopped folks from getting cocaine and marijuana?? Will a war on guns stop criminals from getting guns???
The 2nd amendment protect my right to own a modern firearm just like the 1st amendment protects the internet and porn. You guys who think that it only protects a musket seem perfectly willing to warp the Constitution when it suits your own political agenda.
First, I don’t think you can parse “bear” separately from “arms” in the manner that you do. Just like “freedom of speech” is a term of art (e.g., one doesn’t separately define “freedom” and “speech” to understand the right), so is the “right to bear arms.”
Fine, but this was entirely tangential to my point. If you can modify “arms” to mean either more (in terms of completely different capabilities, even if the basic form is the same) or less (in terms restricting the form) than it did originally, I have no idea how you can come to a principled decision that the manner in which arms may be borne by right must stay in the same form as it did originally. Either you can change concepts in the amendment, or you can’t.
I would also like to see a reference that “arms” at the time meant strictly muskets, and not artillery. I certainly can’t find a modern definition that is so limited.
Von (and Trilobite) do you really believe adding another layer of rules (even if they are “interpretive” rules) will solve the problem of textual indeterminacy? Wouldn’t those “rules” also have to be interpreted?
For example, say “strict construction” was the new rule. Isn’t it easy to see how that is just as malleable as having no interpretive rule? (if it isn’t easy to see, let me know and I’ll come up with examples) And what about deciding precisely what strict construction entails and requires?
There really is no way around this. The only thing to do is to pick judges in a fair way so that those involved in disputes can accept their decisions. So far we have that (even though I’m not happy with many decisions!)
Publius in your response to Hilzoy way up thread you imply that the better thing (i.e. more democratic) to have done in Heller was to leave it to legislatures to decide. But this is the same kind of argument those who are against abortion make with regard to Roe. What is different here?
Nuance and pedantry seem to be the name of the game here. Your right to swing your arm ends when it hits another person. All of our rights are limited when they infringe on the safety of others. That is not surprising, new, or debatable.
So the issue at hand here, as far as I’m concerned, is whether or not our right to own a firearm is impinging on someone else’s right to live safely. The area of ambiguity is worth discussing, but whether or not we should all belong to a militia is surely not the point here.
Discussing what the Founders may have meant by ‘militia’ or ‘arms’, or why there is a comma in the clause, is pure obfuscation. If unfettered rights to possess a firearm result in a huge death toll on society, perhaps we should consider some boundaries on that right.
“Your right to swing your arm ends when it hits another person.”
“If unfettered rights to possess a firearm result in a huge death toll on society, perhaps we should consider some boundaries on that right.”
I think you’ve already identified the correct boundary: You get to swing your arms so long as you don’t hit another person. Acts with firearms which actually, or have a high probability even with normal care, of hurting someone improperly, can be regulated. Regulating acts which will only harm if the person makes a decision to harm, on the other hand, effectively create a preemptive presumption of guilt.
We don’t ban the word “fire” because somebody might falsely cry it out in a crowded theater. We don’t limit paper and ink purchases because somebody might use them to print libelous tracts to distribute. Why should we ban guns because one owner in a hundred or thousand might decide to commit a criminal act?
That’s what it means to acknowledge gun ownership as a right, not a privilege: You’ve got to leave gun owners alone when they, as individuals, aren’t hurting anyone.
Jes: So sometimes you can push the genie back into the bottle.
That was a tragedy Jes, there is no doubt. But what did the resulting ban actually accomplish? Gun crime in the UK went up 40% in the first two years of the ban.
Today it’s almost doubled what it was pre-ban. That’s not a surprise to anyone who acknowledges that criminals aren’t likely to respect a ban…
Jeff: how is you description of guns different from illegal drugs? If difficulty of enforcement is a criteria, there are any number of laws that might be (but probably shouldn’t be) changed?
I’m for legalizing most drugs. I think that the “war on drugs” is one of the most expensive, wasteful, and counterproductive fantasies this country ever embarked on.
But what did the resulting ban actually accomplish? Gun crime in the UK went up 40% in the first two years of the ban.
So a study commissioned by the Countryside Alliance’s Campaign for Shooting said, yes. Given that the Countryside Alliance set up their Campaign for Shooting (much better funded, though a much smaller group, because most of the wealthiest landowners in the UK were in it) to oppose the Snowdrop Movement, I am somehow unsurprised that the study they commissioned found that gun crime had gone up by a staggering figure.
If you are interested in the raw data, it’s available here.
It is worth noting, however, that the mean average of gun-related homicides per year (the Countryside Alliance’s commission carefully did not distinguish between homicides and other gun-related crimes, including theft ) in England and Wales between 1999 and 2007 is 71. The median average is similar: 70.5. The lowest figure is 50 (in 2005/06): the highest figure is 91 (in 2001/2).
That’s out of a population of about 55M. By contrast, in the US, in one year between 1990-1995 (CDC data) 957 children were killed by a firearm.
Homicide figures fluctuate “naturally”, if you will, year by year. A rise of 40% over 2 years isn’t particularly significant in predicting trends, especially with figures as low as ours. Changes in gun crime reporting account for fluctuations, too: you need to look at changes over 10 years, not 2.
Jes: Homicide figures fluctuate “naturally”, if you will, year by year. A rise of 40% over 2 years isn’t particularly significant in predicting trends, especially with figures as low as ours. Changes in gun crime reporting account for fluctuations, too: you need to look at changes over 10 years, not 2.
Fair enough. We are seeing a common trend though. Canada, the UK, Australia… Violent crime rates increase following bans/registries. Since the new laws, violent crime rates in these countries have increased greatly – to double that of the US.
Your own link shows all firearm offenses increasing from 12,805 in 1997/98 to 18,489 in 2006/07. That would be 44%…
Your own link shows all firearm offenses increasing from 12,805 in 1997/98 to 18,489 in 2006/07. That would be 44%…
Yes. There have been distinct changes in how firearm offenses are reported.
This is one of the mostly-unacknowledged problems with tabulating any and all crime figures except homicide. Pretty much everyone is in agreement on how to define a homicide: someone has been killed. That definition is pretty constant over continents and decades.
There is no such common agreement, either in time or space, on how to define, or how to report, other crimes.
Post-Dunblane, following criminalization of possession of handguns, a “gun-related offense” would include being caught owning a handgun, and could apply to anyone who hadn’t taken advantage of the several amnesties to hand now-illegal weapons into the police.
You see the problem? Added factor: the police are now more stringent about registering whether a crime is gun-related, and the public are more likely to report possession of a gun as part of their report of the crime.
Which is why I suggested you look at the homicide figures: raw data that is pretty much unaffected over time by changing standards of crime reporting.
Not to mention that handguns were very rare in the UK even before 1996, and so it’s difficult to see why any violent criminal would be deterred by the 0.01% chance that his victim might have, securely locked in a safe at home, a .22 target pistol.
Carry licences were still rarer – IIRC a private citizen could almost never get a licence to carry a handgun, except for those (off duty UDR men, professional bodyguards) at particular risk of armed attack.
“Von (and Trilobite) do you really believe adding another layer of rules (even if they are “interpretive” rules) will solve the problem of textual indeterminacy?”
I’m not von, but this isn’t a ‘new layer of rules’. What von outlined is how textual interpretation is already done in non-Constitutional law. It is also how Constitutional law was traditionally justified.
Also ‘solve the problem of textual indeterminacy’ compared to what exactly? I’m constantly amazed by how many anti-textualists or living constitutionalists or whatever you want to call them think the problem is solved by appealing to precedent and judicial decisions. In reality, those tend to be every bit as murky as the actual text. So if the alternative is hard-to-interpret judicial decisions, I don’t see why we should privilege the judicial decisions instead of the actual text.
Jes: Post-Dunblane, following criminalization of possession of handguns, a “gun-related offense” would include being caught owning a handgun, and could apply to anyone who hadn’t taken advantage of the several amnesties to hand now-illegal weapons into the police.
Ah. I hadn’t considered that. I agree you would need to discount those cases. Still, I’d want to look at more than just homicide – I’d want to count any violent crime where a gun was involved.
Still, I’d want to look at more than just homicide – I’d want to count any violent crime where a gun was involved.
Definitions of “violent crime where a gun was involved” change, though: that’s why looking at gun homicide rates provides you with a more accurate picture when all you have is the police records of reported crime (which, AFAIK, was what the Countryside Alliance based their report on). Because, as I said: definition of a gun-related homicide was the same in 1990 as in 2000, the same as in the US as in the UK: but the definition of “violent crime where a gun was involved” isn’t the same, so basing statistical analysis on that will give you a confused figure.
Actually, you’d want to look at victimization surveys, no matter how you defined the crime, because, let’s face it, US crime stats are dodgey. There was quite a stink about that a few years ago.
Make that “UK” crime stats. Though, come to think of it, wouldn’t surprise me if US crime stats were dodgey, too.
(That is my initial not-thought-deeply-about-it take. The privileges and immunities clause is of course a dead letter in real Constitutional law, which is stupid.)
I agree with that aspect, of course, and also agree that the P&I clause probably should allow some change in concept. But I am very, very, very hesitant in this area — and, again, point to segregation as an example of what can go wrong.
Von (and Trilobite) do you really believe adding another layer of rules (even if they are “interpretive” rules) will solve the problem of textual indeterminacy? Wouldn’t those “rules” also have to be interpreted?
A-Train, my view is that we can never “solve” the problem of indeterminacy. We can only create a framework that makes it easier to debate (and predict) how an indeterminate test will be determined.
(And the structure I set forth above is a lot more detailed than simply saying “strict constructionism,” which I agree is a vague term.)
I’m not really sure why segregation is such a strong argument against the P&I clause itslef. People who wanted segregation with the intensity that it was desired by the South at the time are going to pervert whatever nearby tool is handy to get their way. I would never use the KKK to argue against social organizations in general, for example.
This is an area where I mostly agree with katherine: the Court took a pretty obvious turn against the text very early on and that has polluted the discussion since then.
A huge part of the current problem with 14th amendment jurisprudence is how people try to stuff things in the ‘due process’ clause that no clear reading can reach. The two clauses were supposed to work together to guarantee that citizens got equal government treatment.
Umm, it’s late in the discussion for this, but it’s important to remember that the Second Amendment is part of the Bill of Rights. It’s important because the Bill of Rights came after the Constitution and defers to it.
The Constitution contains a definition of militia, and it’s not a bunch of guys with squirrel guns parading down main street.
“Militia” is defined as a body organized, armed and disciplined by the Congress with officers and training provided by the states (Article 1, Section 8), under command of the President of the United States when called up Article 2, Section 2.
(Article 1, Section 8: The Congress shall have Power: …….To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;)
The “People”, as individuals, have no constitutional authority to organize, arm, discipline, govern, appoint the officers of, or train the militia. The Constitution has the first, defining word on the subject, whether people like what it says or not.
The 2nd Amendment is not a free-standing document.
Seb, point noted.
Umm, it’s late in the discussion for this, but it’s important to remember that the Second Amendment is part of the Bill of Rights. It’s important because the Bill of Rights came after the Constitution and defers to it.
The opposite is true: One must prefer the amendments over the original text. An amendment that defers to the text it amends is not much of an amendment at all.
Clearly the 2nd amendment does not offer a new definition of “militia”, so we must take the amendment’s use of the term to refer to the militia as defined in the Constitution it amends. But, yes, to the extent an amendment contradicts the earlier text, it must prevail, since the very purpose of an amendment is to change the existing text.
So the literal meaning of Second Amendment and Constitutionally-defined militia is that it’s unConstitutional to bar Americans from serving in a well-regulated military – ie, not on the reasonable grounds of past criminal convictions or physical or mental unfitness, but on such arbitrary, bigoted grounds as gender, sexual orientation, race, gender identity, religion, etc.
No Jesurgislac. The 2nd amendment speaks only to the right of the people to bear arms side of the equation. It didn’t make a generalized comment on every possible facet of social/gender/sexuality/race/religion policy.
Some of those were dealt with in other amendments.
Every clause is not the kitchen sink for every possible right.
“to bar Americans from serving in a well-regulated military”
No, you keep going back to that, but it doesn’t say, “right (of the people) to keep and bear arms in a well regulated milita”, it just says “right to keep and bear arms”. You’re confusing what you want it to mean, with what it actually says.
Thanks, Sebastian. I’m not Von either, but when I referred upthread to judges playing by the rules, I did mean the existing rules – i.e., the interpretative methods that have evolved over hundreds of years of common law, and more broadly the commitment to fair and impartial judging.
The Supreme Court is and always has been political. Congress is fighting harder about judicial selections these last 20 years or so than it used to, which has brought the political nature of selections into sharp relief, but Presidents have always packed the Court with their friends, and Justices have always been led to some extent by their prejudices. That’s not going to change, no matter what we do.
However, even the Supreme Court has to try to justify its policy decisions in judicial terms, which limits the force of the Justices’ prejudices. The more we as a polity commit to rule of law, the less even the Justices will feel comfortable making blatantly bigoted rulings like Bush v. Gore. I hope.
That is why, despite his occasional betrayal of his own principles, I think Scalia has generally been a force for good on the Court. He has articulated and made mainstream a modest, minimalist, mode of textual interpretation. Other judges have to at least confront the text more squarely than they used to bother with, thanks to Scalia. Little though I like the immediate results in many cases, it does tend to put policy issues back where they belong — in front of the legislature.
And I think it is possible to return to a less-politicized judiciary in the lower courts, which have a lot of power especially given how few cases the Supreme Court accepts cert on these days.
I’ll give you that I made a poor argument on defering. It doesn’t change the fact that the Constitution defines “Militia” in the context that it’s used in the Constitution.
The opposite is true: One must prefer the amendments over the original text.
You miss zak822’s point, which is not that amendments don’t change the text, but that the meaning of words used in the amendment can be ascertained by (among other things) reference to the original text. Thus, if the original text uses the term “X” and the amendment adds an additional provision about “X”, it’s a fair inference that the “X” used in the amendment is the same “X” the original text talks about.
That’s true. In as much as the 2nd amendment guarantees the right to keep and bear arms to the people, not the militia, it’s perfectly appropriate to look to the Constitution’s main body to determine who constitute the people.
Violent crime rates increase following bans/registries.
I’m almost positive this isn’t correct. It was John Lott’s central thesis in More Guns, Less Crime, which was (AFAIK) demolished by Tim Lambert et al. a few years back. I don’t recall the precise details, though, so it’s possible I missed something.
Thanks Brett and Rea — I did miss zak822’s point.
“It was John Lott’s central thesis in More Guns, Less Crime, which was (AFAIK) demolished by Tim Lambert et al. a few years back. I don’t recall the precise details, though, so it’s possible I missed something.”
I think Anarch is correct, but the Lambert finding was that there was pretty much no correlation whatsoever, which doesn’t help the gun control advocates either.
That’s true. In as much as the 2nd amendment guarantees the right to keep and bear arms to the people, not the militia, it’s perfectly appropriate to look to the Constitution’s main body to determine who constitute the people.
How? It doesn’t say “the right of an individual to bear arms” — it doesn’t mention “the people” at all. It does reference militias, in the pesky clause that is the result of 18th Century style. If “well-ordered militias” are not a significant part of the 2nd, why are they mentioned at all?
“it doesn’t mention “the people” at all.”
Are you high on something, or just selectively blind? In either case, I advise you to look up the Second amendment, and once you’ve come down, read it. You will find that it damned well DOES say “the people”, right after “right of”, and before “to keep and bear arms”.
To make my comment simple, use URL to my blog post, quoting excerpts from your post.
http://magesoapbox.blogspot.com/2008/03/constitution-second-amendment.html
Brett, the 2nd mentions “people” right after it references the necessity for a well-regulated militia. You sound like you want to leave out the “militia” part of the 2nd.
Just for clarity in discussion, and because it’s short, I’m going to include it here:
“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.”
And the Constitution defines militia as a body armed by Congress, with officers provided by the states.
I think Anarch is correct, but the Lambert finding was that there was pretty much no correlation whatsoever, which doesn’t help the gun control advocates either.
That’s pretty much my recollection too, but I seem to remember there was a caveat. Can’t recall what, though.
Actually it’s: “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.”
Capitalization can meaning, too, just as placement of a comma does. A democrat is not necessarkly a Democrat, a state is not necessarily a State, and so on.
“Capitalization can meaning, too” should be “Capitalization can change meaning, too….”
“”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.”
And the Constitution defines militia as a body armed by Congress, with officers provided by the states.”
Right, and right there in black and white, clear, unambiguous words, it declares this to be a right of the People. NOT the militia.
There is a simple interpretation of the 2nd amendment, which the Supreme court took in Miller, which makes sense of the entire amendment in context.
1. It’s a right, not a privilege.
2. It’s a right of the people, not the militia.
3. It’s a right to weapons suitable for militia use.
The aim of the 2nd amendment was to deal with a situation where the government itself, either through neglect or malice, (A well regulated militia might be necessary for the security of a free state, but not all states want their people to be free!) discontinues the militia system.
If only members of the militia may have militia arms, you’re screwed, the government can abolish the militia, abolish gun ownership, and render the populace defenseless. Good bye free state.
If the people, as individuals, one by one, have the right to militia weapons, on the other hand, even if the government discontinues the militia, if events demand one, one can be raised very quickly, from the available pool of people already armed and familiar with their weapons.
And so a private right secures that necessary militia, where a ‘collective’ one subject to the governments’ whim does not.
See? I’m not ignoring any part of the 2nd amendment, it’s all there, and all makes sense. And best of all, MY interpretation of the 2nd amendment doesn’t require me to ignore everything that was written about the amendment before the 1920s…
I think Anarch is correct, but the Lambert finding was that there was pretty much no correlation whatsoever, which doesn’t help the gun control advocates either.
Yeah, in a few quick minutes digging I realize it was Lott I had in mind, and while I don’t agree he was totally discredited, there are doubts. Jes made valid points about how the statistics change about the same time as the laws. I guess all I would stick by is that there is no significant decline.
Brett: Right, and right there in black and white, clear, unambiguous words, it declares this to be a right of the People. NOT the militia.
And why your resistance to the idea that this means the right of the People to bear arms in a well-regulated militia is what is guaranteed by the Second Amendment?
If the people, as individuals, one by one, have the right to militia weapons, on the other hand, even if the government discontinues the militia, if events demand one, one can be raised very quickly, from the available pool of people already armed and familiar with their weapons.
The word “militia” simply means “a military unit”. The notion that all you need to turn civilians into a well-regulated military unit is for everyone to be able to own whatever guns they like and practice shooting with them, is pretty much just bloody nonsense. A well-regulated military unit is one that’s trained and disciplined, with officers who have a recognised chain of command. You cannot “very quickly” put together a disciplined military unit of this kind just out of gun club members.
And the notion that the Second Amendment was provided so that the people of the US would be able to rebel against the government of the US by taking up arms against the government? Is really absolutely terrific nonsense.
Last one.
A solid majority of the U.S. public, 73%, believes the Second Amendment to the Constitution guarantees the rights of Americans to own guns. Twenty percent believe the amendment only guarantees the rights of state militia members to own guns.
And why your resistance to the idea that this means the right of the People to bear arms in a well-regulated militia is what is guaranteed by the Second Amendment?
Because that is not the historical meaning of the amendment. Simple. However much you wish it to be, it is not.
And the notion that the Second Amendment was provided so that the people of the US would be able to rebel against the government of the US by taking up arms against the government? Is really absolutely terrific nonsense.
Yeah, it’s not as if we had just, 13 years previous, fought a war against the English colonial government by doing exactly that. So yeah, absolutely absurd to imagine that that’s what they were thinking.
“Right, and right there in black and white, clear, unambiguous words, it declares this to be a right of the People. NOT the militia.”
“Unambiguous.”
That’s simply not true.
“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.”
That is not only ambiguous, it doesn’t even make grammatical sense in modern English. That’s whyit’s ambiguous. There’s no standard or agreed way to interpret which clause is dependent on which, given the odd comma and word choices.
Argue for your interpretation all you like, but an argument that there’s no ambiguity doesn’t pass the laugh test.
“And why your resistance to the idea that this means the right of the People to bear arms in a well-regulated militia is what is guaranteed by the Second Amendment?”
Because that’s not what it says.
Because nobody appears to have thought it meant that during roughly the first 140 years of this country’s history.
Because what you’re proposing is nothing more than a bit of sophistry created during the 20th century by people who didn’t want to admit that the policy they wanted was unconstitutional.
That’s why.
“There’s no standard or agreed way to interpret which clause is dependent on which, given the odd comma and word choices.”
Hell, by your reasoning, nobody could today understand anything Shakespeare wrote; He didn’t use, after all, modern word choices, grammar, or punctuation.
The sheer desperation to not understand these words never ceases to amaze me.
I would like to welcome you to read an article I wrote up this past week just on this topic: http://www.theconstitutionalist.us/index.php/editorial/understanding/the-second-amendment.html
Dialogs like this are vital to the furthering of our understanding, and correct application, of the Constitution and its amendments. However, it appears that there is quite a bit of discussion based on personal bias, rather than on historical citations or sources.
I am by no means a legal or historical scholar, and am learning more on the founding fathers every day. However, I do take great care in trying to understand, as best possible, the underlying principles, and historical contexts. Anything else is ignorance.
Regards,
Mike Bronner
Brett: Because nobody appears to have thought it meant that during roughly the first 140 years of this country’s history.
Looking at this timeline (which may simply not be complete) the only example of the Second Amendment being used for the personal ownership of guns pre-NRA seems to be legislation in 1837 in Georgia.
For centuries, owning a gun for your own use seems to have been simply taken for granted as something anyone could do if they wanted to and could afford to buy a gun and of course the powder and shot for it. (In rural areas of peaceful countries, a gun to kill “critters” or take out to go hunting for food is taken for granted as a farming tool.)
The Second Amendment, for all your sheer desperation to avoid acknowledging this, clearly is related to the need to establish a well-regulated militia, a volunteer army, that would be “called forth to execute the Laws of the Union, suppress Insurrections and repel Invasions”. This was first established by the Militia Act of 1792, and the Militia Act of 1862 further provided that yes, Americans of “African descent” were included in the militia.
It is a perfectly logical development of the basic civil rights position established in the Second Amendment – that it is a civil right and obligation for Americans to bear arms in a well-regulated militia – to say that this right and obligation ought not to be denied to LGBT Americans, just as the 1862 Militia Act regulated that this right and obligation ought not to be denied to black Americans.
That the NRA have attempted very successfully to turn away from the “well-regulated militia” words in the Second Amendment, clearly applying to the militia established by the Constitution, and all the historical background of the citizen military in the US, to make the Second Amendment a pointless “we have the right to own guns because the Bill of Rights says we do, so there!” is extremely profitable to gun manufacturers. Follow the money, Brett: I’m cynical enough to think that’s always a good rule.
“clearly is related to the need to establish a well-regulated militia”
And I’ve already explained how it’s related: To guarantee a pool of armed and skilled marksmen, from which a militia could be raised even if the government discontinued the militia. My explanation has the virtue of agreeing with what contemporary sources had to say.
Your version, where it’s a right to carry a gun if you join the army, is nothing but some 20th century sophistry designed to render the amendment completely moot.
Brett, if the government discontinue the militia, you don’t have a militia any more.
What you have is a bunch of people with guns who used to be in the militia.
I’d be among the first to say that if the US was invaded and occupied, even if there was no militia because the government had fallen and the foreign occupation had disbanded it, or if it was unsafe for members of the milita to wear uniforms and publicly declare themselves, Americans would still have the basic right to fight back against the foreign invader, and that a decent interpretation of the Geneva Conventions would acknowledge that.
Your flailing ignores a basic, clear, historical timeline, based on what the text of the Constitution and the Bill of Rights actually say.
The state militia are established in the Constitution: the Bill of Rights establish that “the People” have a right to bear arms in the well-regulated militia.
Individual ownership of guns was a right that was as largely and simply accepted well into the 20th century as an individual’s right to use cocaine or marijuana. (Aside from some Southern states which didn’t like the idea of black Americans getting to own guns now they weren’t slaves any more.)
In the 20th century, as guns got more lethal and cheaper, it began to be accepted, everywhere, that gun control and regulation were necessary for the safety of the general population: just as it began to be accepted, everywhere, that you can’t just let food production or addictive drug use go unregulated, as a matter of public health and safety.
The use of the Second Amendment to prevent government regulation cutting into gun manufacturer’s profits is much more a product of the 20th century than is upholding the right of all Americans to bear arms in a well-regulated militia.
It is odd to think, Brett, but in some times and some countries and by some people even now, military service is regarded as a right and an obligation – even a privilege – and denying that right and obligation based on bigotry is something that ought to be opposed.
I’m a pacifist, but even I agree: if you are going to have military service, the right to serve ought not to be arbitrarily denied based on a volunteer’s race or religion or gender or gender identity or sexual orientation. I think, looking at the text of the Constitution and the Bill of Rights, and the historical background of the Framers, that’s a valid, historically grounded, interpretation of the Amendment.
And it’s slightly sickening to think that if an LGBT soldier took their case to court and challenged their being sacked from the military on the grounds that they have a Constitutional right to serve*, the NRA would be the first in line to oppose on the grounds that the Second Amendment only applies to the personal ownership of firearms for the sake of it, and doesn’t in any way mean that the People of the United States ought to regard military service as a privilege of citizenship.
*Presuming that there’s no intrinsic reason why they shouldn’t – I mean exclusions on the grounds of bigotry, not mental or physical incapacity
It has been both fascinating and amazing watching people simply ignore the plain language of the Constitution. The militia is, for Constitutional purposes, armed by the Congress, not the gun shop down the street. It has officers and training provided by the states. The “militia” is not an unorganized mass waiting to defend us against the government–the government arms the militia, again according to the Constitution. Congress was never going to arm a body to attack it, and the states were never going to provide officers to a body that would depose the state government. The argument is ludicrious.
The point of this is that people ignore what they don’t like in the Constitution, and they will not be swayed by facts. The Constitution says what it says. People can only make it say something else by selectively ignoring the nasty bits they don’t like.
That’s dishonest.
Forgot to add that all this means there is no Constitutional right to individual gun ownership.
“Forgot to add that all this means there is no Constitutional right to individual gun ownership.”
Lol, you had best add that because otherwise it sounds like you are arguing for the other side.
But more seriously, where do you get this? “the government arms the militia, again according to the Constitution.”
It doesn’t say that and that isn’t what actually happened. What actually happened is that the government expected people to bring their weapons from home.
That is a fact, and it is a fact that makes your whole argument fall apart.
“military service is regarded as a right and an obligation – even a privilege – and denying that right and obligation based on bigotry is something that ought to be opposed.”
I know of no country, (Perhaps you can relieve my ignorance.) where you can walk into a recruiting station, and demand your right to military service, even if the government decides that it’s already got enough soliders.
That’s certainly not THIS country, where the idea that you have a right to serve in the military whether or not the government wants you is starkly insane.
You’re trying, desperately, to turn a right into something no sane person would use that word to describe. And you’re failing miserably.
zak822, the term you, and many others, use when referencing the Constitution and its amendments “constitutional right” is a complete misnomer, a fallacy. Rights are NOT established by the Constitution, merely reiterated. Rights are inherent to every individual (and ONLY individuals). The state has no rights, the federal government has no rights, and companies and corporations have NO RIGHTS.
So many times people get this language confused with privileges, which is what the people bestow on artificial entities, like corporations and governments. We, the People, have rights that are inherent and don’t need explicit definition. We have every right to anything, as long as it doesn’t infringe on the property of others, or their rights.
That being said, every human being has rights. However, most choose to give up a majority of their rights in exchange for “social” governmental policies.
Let this be my last comment on this thread:
The Constitution and the Bill of Rights are over 200 years old, written for another age, by people whose philosophical and ethical assumptions are not widely shared today. This implies that they would have wrote a document which is in many respects not a good match for today’s society, and in some cases chose to write what we’d regard as outrageous.
Anybody who approaches the Constitution with a determination that they will NOT, no matter what it takes, find anything in it they object to, is approaching the Constitution in bad faith. The Constitution DOES mean, really, truly does, things that are bad policy or objectionable in other ways.
Yes, it really does mean those things, even if you object to them, even if you find them offensive or stupid. And the proper response when you find them to mean something bad, is to change the text. Because only in that way to we retain a constitution.
If you simply resort to doing violence to the document’s meaning any time you don’t like it, who’s to say somebody else won’t dislike things you approve of? And all your complaints about the violence THEY do will ring hollow.
Don’t like the 2nd amendment? Try to get it repealed, rather than lying about what it means. If you’re right about how awful it is, you’ll find people agreeing with you, and it should be possible to do.
And in the end we’ll still have a constitution that bind the government even when the government doesn’t like it.
Sophistry of the sort we see in this thread is corrosive of the law. In the end it can only lead to rule by might alone, because it will destroy the law’s legitimacy. Please, think twice before traveling further down that road. You WON’T like what you find at it’s end.
Brett: I know of no country, (Perhaps you can relieve my ignorance.) where you can walk into a recruiting station, and demand your right to military service, even if the government decides that it’s already got enough soldiers.
Good point, if fairly irrelevant to the discussion. I know of no country, though perhaps you can relieve my ignorance, where the government is turning people away because it’s already got too many soldiers.
That’s certainly not THIS country, where the idea that you have a right to serve in the military whether or not the government wants you is starkly insane.
I do find it strange that, though a pacifist, I can understand and feel for people who do want to serve and who see this as a privilege and obligation of citizenship, better than you evidently can.
I don’t find it starkly insane, to say the least: while as a pacifist I disagree with the military expression, the idea of service to your country as both privilege and obligation not to be arbitrarily denied is something that I very strongly support.
Sebastian, you asked “But more seriously, where do you get this? “the government arms the militia, again according to the Constitution.”
See my initial post, where I quote the Constitution: “Article 1, Section 8: The Congress shall have Power: …….To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
See?
Mike, good point. Thanks.
Brett, you are the only practioner of sophistry on this thread. The Constitution is clear in Article I, Section 8, where it defines what constitutes a “militia” for Constitutional purposes. That term is referenced again in the 2nd Amendment-no alternate meaning is offered in that amendment thus there is no reason to assume that the Framers meant something other than what they said in the original document.
You don’t like the right to bear arms being tied to the “militia” and have gone through many gyrations to alter the meaning of what the Constitution says. The right to bear arms is not an individual right, it is inextricably tied to “A well regulated Militia”. And the Constitution defines the term “militia” for us, at least in the context of the Constitution. It is not any of the many other definitions offered in this thread. All are valid, just not in the context of understanding what the founding fathers meant.
Whew.
zak822, I would like to offer some additional context to the Second Amendment and the term “militia”.
We must remember that the passages of the original Constitution (the Constitution w/o amendments) were written at a different time. The Constitution was drafted Sep-1787 and ratified by Jun-21-1788.
This original version did not include the Second Amendment, thus it is not applicable to state that Article I, Section 8 applies the definition of the term “militia” in context to the Second Amendment.
The Bill of Rights was introduced in 1789 and ratified by 1791 as the first ten amendments. We do have a very clear and specific description of what “militia” means in the Militia Act of 1792, which was passed in two parts by May-8-1792. It is in much closer proximity to the Second Amendment, and was ratified by the many of the same men who also ratified the Second Amendment.
Therefore, it is logical to define “militia” through the meaning of the Militia Act of 1792, rather than through A.I,S.8 of the Constitution.
Well, Zak, if you’re going to impune me like that, I might as well respond:
Where the hell did I talk about the definition of “militia”? I’ve got no reason to care one way or the other about how that word is defined. Why should I, when we’re discussing a right of the PEOPLE, rather than the militia?
Brett, you keep saying it’s a right of the people, when the 2nd Amendment assigns the right to bear arms to a well-regulated militia. And defines what the term means.
Thus, sophistry. Sorry if you feel impugned. I try to avoid ad hominum attacks.
Mike, I disagree. If the founding fathers had wanted the term “militia” to be understood to have a meaning other than what they initially provided, I think they would have re-defined the term when they wrote subsequent Constitutional documents. 1787 is not all that far from 1792.
btw, I’m still using the term “right” because that’s how the 2nd Amendment refers to it.
This has been a very good thread. Sorry to sign off on it, but there’s a rumor that I’m actually supposed to work for my paycheck.
My thanks to everyone who took time to reply to my posts.
A couple of observations.
First, there is, I think, a useful distinction to be made between a militia and a professional standing army.
Militias are made up of citizens who do not make their living as soldiers. Members are regular citizens, who are expected to participate in regular military training in case their service is needed.
Members of a citizen militia typically provided their own weapons and a reasonable supply of ammunition and powder. The Militia Act cited upthread by Mike Bronner specifically requires them to provide their own musket or rifle, along with a basic level of powder and shot. Larger pieces, such as cannon, and an additional supply of powder and ammunition were commonly held in local powder houses.
There is pretty long precedent for the idea that a professional army under the control of the executive is a danger to the liberty of the governed population. The idea is not without merit.
The need for a citizen militia to provide a counterbalance for whatever professional army the national government might raise was a common topic of discussion at the time the constitution was written. The debate appears to have centered not on whether a citizen militia was necessary or desirable for that purpose, but whether an explicit guarantee of the right to bear arms was needed or not to support it.
Last but not least, it’s worth noting that the language of the amendment as presented to the states for ratification was precisely this:
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 meaning of this version is, I think, fairly unambiguous. If you look at any of the draft versions that preceded the final one, likewise.
The question of whether the government may limit ownership of arms to what is strictly needed for participation in the militia is a reasonable one.
The question of whether federal, state, or city governments can place reasonable limits on personal gun ownership, and on what those limits are, is also a reasonable one.
The question of whether, in the modern period, a citizen militia armed with, at best, semi-automatic firearms presents any meaningful curb against a professional national army is, likewise, a good one.
But, IMO, the original intent of the 2nd amendment is pretty clearly that the right of individual citizens to own firearms could not be infringed upon, so that they could participate in the national defense of the country, and, if necessary, provide a curb against an excessively powerful national government.
The founders, for damned good reason, were suspicious of an excessively powerful national executive, were suspicious of standing professional armies, and were suspicious of any attempts to disarm normal citizens. A number of the early conflicts in the Revolutionary War were, in fact, triggered specifically by attempts on the part of the British professional army to disarm colonists by removing powder and other arms from armories and powder houses. I think any reading of what the actual intent of the 2nd Amendment is has to occur in that context.
And, as Brett has mentioned, if it doesn’t work for us anymore, the proper remedy is to amend the Constitution.
Thanks –
zak822, I have to respectfully side with Brett on this. For the following reason: rights are not applicable to any institution or artificial entity (like companies, or governmental entities). Stating that a militia has a right is an oxymoron. Militias may only have privileges. That makes the attribution of rights to a militia a fallacy.
“Brett, you keep saying it’s a right of the people, when the 2nd Amendment assigns the right to bear arms to a well-regulated militia. And defines what the term means.”
Is Zak posting from an alternate universe, where the 2nd amendment has a completely different text? Because I just don’t see how you get “assigns the right to bear arms to a well regulated militia” out of “right of the people”. Let alone “defines what the term means.”
Oh, well, I suppose it’s just another example of what Kopel has called, “gun-aversive dyslexia”
Brett, you don’t have to be rude about it. And I think you are for the most part correct in substance on this issue.
The text is: 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.
Whatever you think about the first two clauses (it may be explanatory or it may limit the third clause in some undefined way) the third clause is a right of the people (to bear arms) which is not supposed to be infringed.
It isn’t the right of the militia. The militia clause may alter that right somewhat (I tend to think it is more explanatory than limiting but that is a different argument) but in any case the right is of the people.
Is Zak posting from an alternate universe, where the 2nd amendment has a completely different text?
Ah, I see the problem! Yes, Brett: Zak is posting from the alternate universe where the Constitution includes a couple of lines that say the Powers of Congress include “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
and where the Second Amendment reads “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.”
You’re in the universe where those lines don’t exist in the Constitution and where the Second Amendment says only “The right of the people to keep and bear Arms shall not be infringed.”
How curious! I wonder how this happened? It appears I am in the same universe as Zak, since Google brings the same Constitution and Bill of Rights to me as Zak is reading.
Yes, actually I do have to be rude; Lack of physical proximity prevents me from beating Zak about the head with a rubber chicken.
Look, reasoned discourse requires adherence to certain rules, some of which are so basic that we usually don’t have to articulate them. One of those is that when you claim black is white, and somebody shoves a piece of coal in your face, you don’t shield your eyes from the “glare”, and proclaim yourself vindicated.
Zak announces that the 2nd amendment allocates this right to the militia, and then quotes an amendment which says, “right of the People”. If he’s willing to take THAT as evidence he’s right, there is no possiblity of reasoning with him, and no reason for me to aid him in pretending that he’s engaged in reason.
Brett: Look, reasoned discourse requires adherence to certain rules, some of which are so basic that we usually don’t have to articulate them. One of those is that when you claim black is white, and somebody shoves a piece of coal in your face, you don’t
accuse them of living in an alternate universe and threaten to beat them about the head with a rubber chicken.
If you can articulate this rule, perhaps you ought to try living by it? You are unwilling to acknowledge that the Second Amendment refers to a well-regulated militia and that the Constitution makes clear what the Framers were referring to by “militia”.
You don’t have to agree with Zak. You just shouldn’t get mad because he’s referring to parts of the text of the Constitution/Bill of Rights you prefer to ignore.
“You are unwilling to acknowledge that the Second Amendment refers to a well-regulated militia and that the Constitution makes clear what the Framers were referring to by “militia”.”
No, the Second amendment clearly does refer to a well regulated militia in the preface, even as it refers to the people when assigning the right. Neither is the other. And the Constitution does indeed define the militia, which is not terribly relevant, since it’s the people who have the right.
Right. Of. The. People. No amount of rationalization will turn that into a right of some other group, or something that isn’t really a right.
I have been arguing the 2nd amendment, in one forum or another, for some three decades. It’s my experience that ‘collective right’ people are rather like flat Earthers. (Who I’ve also debated.)
Every once in a long while you’ll encounter a flat Earther who is merely profoundly ignorant. You point out to them the evidence that the Earth is round, (It’s fairly blatant once you know what you’re looking for.) and they wander off for a while, and rethink their position.
Like Lawrence Tribe, who spent years as a famous constitutional scholar declaring the individual rights position nonsense. And blew off anybody who told him he was wrong. Finally got tired enough of it that he decided to buckle down and write the definitive refutation… only to be compelled by the force of reason to admit he’d been wrong, when he finally bothered to looked at the evidence.
But reason has no force to compel the unreasonable, and most flat Earthers you encounter are not ignorant, they are profoundly irrational, capable of rationalizing away or simply refusing to understand even the simplest evidence. You point out distant ships drop below the horizon, and they call it refraction, you point out the Earth’s shadow on the moon, and they say it proves the Earth is a disk. And so on, and so forth. NOTHING moves them, because they start with the immovable assumption that the Earth is flat, and everything must give way to it.
“Collective” rights’ people are the same way: You point out that it says “right of the people”, and that every where else the Constitution says “right of the people” it means an individual right. You point out that nobody even suggested that the right was ‘collective’ until the 1920s. You quote contemporaries of the founders, such as Tenche Coxe. And none of it moves them.
Because you start with the inalterable premise that it Americans can’t have a constitutional right to own guns, and everything else must give way in the face of that one inalterable constant.
When you shove that piece of coal in the face of a black is white advocate, and they declare themselves vindicated, reason has reached it’s end. You either walk away, or fall to blows.
You know, some blogs know how to handle unterminated html…
If chickens had guns, people would need a bigger militia to make soup.
So, is the 2nd Amendment an ‘in the eye of the beholder’ kind of thing? Like one of those optical illusion drawings, where your preconceived assumptions determine which way you see it, and then the cognitive dissonance thing kicks in, and then no matter how persuasive the evidence, that disconfirmed expectancy thing takes over your brain?
Either way, here’s ANOTHER REALITY CHECK to ponder while we figure out who’s on the right side of the angels, and who’s optically deluded,
If chickens had guns, people would need a bigger militia to make soup.
What if rubber chickens had rubber guns?
“What if rubber chickens had rubber guns?”
I’d order the lamb.
Aye, thar’s the rub. It would take longer to remove the wishbone of contention.
The chef would need to confiscate the rubber gun before rubbing them out.
If a rubber hen carried a rubber gun, rubber roosters would be less likely to rubber thigh.
I hope you’re keeping abreast.
If rubber chickens with rubber guns came home to roost, civility would rule and fewer people would be saying “Pluck you!” to Obama’s minister.
And there has to be a joke involving “Cockadoodledoo”, but I’ve got company coming over in five minutes, so I’ll leave you to it.
That’s what you get for egging me on.
Aarrgghhh!
We don’t really care why the chicken crossed the road. We just want to know if the chicken is on our side of the road or not. The chicken is either with us or it is against us. There is no middle ground here.
In vaudeville, don’t you know, the rubber chickens carried rubber starter guns.
Ahhh.
Gold at last.
I wondered where Thullen was, was just thinking ‘What this thread needs, is some Thullen!’
And behold, what do I see before me? ’Tis he!
With a flourish he lays the golden perfectly formed orb at our feet and flees with a full feathered flutter.
“Either way, here’s ANOTHER REALITY CHECK to ponder while we figure out who’s on the right side of the angels, and who’s optically deluded,”
What’s your “reality check” got to do with anything? Proof that a constitutional right to own guns would be imprudent would only be evidence that it didn’t exist if you’d already established that it was impossible for the Constitution to mean anything imprudent.
Since it’s not only possible, but actually the case, that the Constitution’s actual meaning can be imprudent as a matter of policy, your ‘reality check’ is irrelevant as to determining what it means.
Now, if we were discussing whether or not to repeal the 2nd amendment, it might be somewhat relevant…
Why did the chicken cross the road?
Publius: It’s a modern age – chickens aren’t what they used to be.
Magistra: Chickens are better than they used to be because the government regulates the roads.
Jesurgislac: Chickens have a right to free national health care. Also, the 2000 election in Florida was stolen, stolen, I say!
Bruce: The Founding Fathers were afraid of a mob of chickens, so chickens have to cross the road as individuals.
Zak: If you read the Constitution, chickens can only cross roads as part of a well-regulated militia.
Brett: How dare you deny chickens WITH GUNS the right to cross the road WITH GUNS and rebel against the government WITH GUNS. Also, GUNS. LOTS AND LOTS OF GUNS. Chickens with guns!
John Thullen: I lay golden eggs.
But, I figure everyone can use the eggs.
We can all use a few eggs. Nourishing, and after a week or so they are primed (sic) for use in constitutional debates.
But beware the feathered militia. Rubber feathers, rubber bullets, which are more vicious than you’d think. Probably pretty viscous too. Like a hard-boiled egg.
Unlike Thullen who doesn’t have a hard-boiled bone in his body.
So beware chicken militias, especially if you hang out at the KFC; they’re on the march to overthrow a tyrannical regime.