by publius
Ok – let’s talk Heller. The question in Heller was not “individual” versus “collective” right, but whether the individual right must relate in some way to militia service. The Court said no, in a 5-4 party-line vote. I’m not crazy about the result, but I don’t care that much about guns. The reasoning, however, is far more troubling. Scalia’s opinion is blatant results-oriented analysis dressed up as rigid historical analysis. The idea that this result is compelled by the history is, frankly, absurd.
There are a million things about Heller on the Internets, so I’m limiting myself to this one point – the Heller opinion is an indictment of originalism. In particular, it shows the gaping weaknesses of a methodology that says our constitutional rights should turn on the ability of non-historian judges and law clerks to sift through cherry-picked snippets of early American history. Stuart kings should be less relevant than the realities of 21st century urban violence on this particular issue.
To begin, let me emphasize that history shouldn’t be irrelevant to constitutional analysis. It can be a valuable tool when the historical record is fairly clear. For instance, let’s say Congress decided to put images of our troops on quarters (25 cent pieces), and someone sued saying the Constitution prohibits “quartering” of troops. History there clearly illustrates that the text doesn’t refer to coins. Similarly, the “domestic tranquility” clause isn’t a basis for a federal domestic abuse statute. So yes, history can be relevant and even dispositive.
But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations. At this point, courts lack the institutional competence to decide which side’s cherry-picked history citations are more accurate. Judges aren’t historians. They haven’t been trained that way. They have no idea whether the subset of materials being presented is representative and sufficient and so on. Thus, when it’s close, courts need to move on to other interpretative methods.
In Heller, the opinion itself illustrates how unclear the record is. Both sides present historical examples that, taken alone, support their point well. But the evidence doesn’t compel a conclusion either way – particularly from institutionally incompetent judges. It can retroactively justify the decision, but it’s not determining the outcome.
Even if you’re not persuaded by Stevens’ dissent, he at least notes several powerful challenges to Scalia’s historical analysis. Just off the top of my head – (1) the original draft of the Second Amendment was more military-related; (2) several state constitutions explicitly mention self-defense, unlike the federal one. And there are many others. Again, I don’t want to get into a historical debate because it’s silly. The point is that Stevens provided several examples that, at minimum, complicate Scalia’s overly-rosy historical record (which of course neatly held up to a 5-4 vote).
But moving beyond Heller, the extensive use of history in complicated situations has at least two other major problems: (1) it’s anti-democratic; and (2) it’s completely divorced from real-world considerations. More on each below the fold:
History and Transparency
As noted above, the originalist reasoning in Heller makes the scope of the law depend upon conclusions about history. Thus, our constitutional rights will be defined by amateur historians’ ability to cherry-pick the historical record.
Aside from the epistemological problems, it’s worth noting how utterly non-transparent and undemocratic this methodology is. In the Middle Ages, priests kept power by using a language (Latin) that only the educated elite could understand. Similarly, the Court’s tedious examination of dueling history books makes the opinion unreadable, and prevents the larger public from having a meaningful debate about it.
I mean, this is a problem with law opinions more generally. But debates about text and structure and policy and institutional allocation of power are least potentially accessible to the public.
Hell, I teach law and I can’t even get through the tangled 157-page mess that came down this morning. More to the point, it’s impossible for me to realistically assess the historical validity of these claims. To have fully informed decisions on close historical questions like these from the 1790s and earlier would require you to take a few years off and work on a history Ph.D. Thus, the dueling history opinions are not so much wrong, as they are unverifiable either way. I’m honestly not competent to assess them.
It shouldn’t be that complicated. If it is, we’re doing something wrong. Heller was an indulgence of amateur historians pretending to interpret important constitutional rights on the basis of the historical record. The opinion is completely inaccessible to the American public.
Policy
Another problem with the originalist methodology in Heller is that it ignores modern policy. I mean, don’t get me wrong – I care very deeply about what Antonin Scalia thinks of the Stuart kings. And he’s very clearly qualified to express opinions about them. But violence levels in DC strike me as a bit more relevant to the question at hand.
That’s not to say that courts should impose their own policy, but only that they should take modern policy into account on questions where the text and history are indeterminate. For instance, here, it seems worthwhile to note the difference between modern urban conditions and the Glorious Revolution.
If nothing else, the policy concerns could convince the Court that they’re not competent to make these decisions. Thus, maybe policy considerations would persuade them to allocate authority to legislatures and review them under a very deferential standard. (Again, that’s one benefit of process theory for liberals – it’s internally consistent and pro-democratic. This post, for instance, is fully consistent with my opposition to both Kennedy and the Exxon case, both of which contemplate enormous judicial power.)
We got no such thing here though – no real modern debate of any kind. We also got no sense at all of what lower courts should do in the inevitable wave of litigation to come. But we did hear detailed discussions of the Stuart kings. And that’s really what’s important – you know, what Scalia’s clerks thought of the Stuart kings.
UPDATE: Professors Levinson and Balkin both have interesting posts up that touch on some of the same issues. Professor Solum has a roundup of commentary.
Great post. It also seems suspicious here that the segment of the court most hostile to the “rights revolution” has just expanded it significantly, and in ways that override at least a century of well-established jurisprudence. In that way, it reminds a little of Bush v. Gore, if not so obviously absurd. Of course, this time that irony can be seen as cutting both ways, making this case low hanging fruit for the victorious 5. But that’s just your point again–“originalism” here is really just a mask for power and interest.
Although I dislike the decision and would prefer some democratic deference to states and localities, the pragmatist in me wonders if liberal alarm is overwrought, just like conservatives bedwetting over Miranda or Kelo. The practical question will ultimately be determined by the effects of this decision, not its reasoning. Sure, that reasoning can always spiral out of hand in later cases. But if cities like DC get considerably more violent, wouldn’t we expect future courts to moderate this finding?
Thus, our constitutional rights will be defined by amateur historians’ ability to cherry-pick the historical record.
…
Isn’t this the description of a Justice in every decision, whether medical, scientific, or anything else? Somehow I see Rowe as being far more egregious an example of justices working outside their realm than one dealing mostly with decisions, laws, and definitions.
One Publius says:
But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations.
An earlier Publius says:
To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.
I’ll stick with number two. Well done Justice Scalia.
I think that the real problem here is that American politicians lack the political courage to do what the Founders expected: amend the Constitution to keep up with the times. Indeed, the Founders fully expected the Constitution to be thrown out and re-written at regular intervals, with amendments providing temporary patchwork corrections. But in fact, we have retained the original Constitution for more than 200 years, and we have amended it very little.
A variety of issues have arisen that require fundamental clarification. Gun control is one of them. When the Second Amendment was written, guns were a necessary part of frontier life, to hunt game as well as to provide protection from Indians and criminals in an environment with very few police. Moreover, guns weren’t very destructive back then: the muskets and pistols available were single-shot, required about one minute to reload, and were both expensive and inaccurate. Things have changed. Nobody feeds themselves by hunting; there aren’t any marauding Indians; we have adequate police forces everywhere; and a teenager can purchase with his allowance money a weapon that would enable him to single-handedly wipe out the colonials at Bunker Hill. It would seem then that applying the historical interpretation of the Second Amendment is absurd. What we need is an amendment to the Constitution that recognizes these changes. I’m not averse to an amendment that explicitly guarantees an individual right to own handguns; I just want to see the issue hammered out by society and formulated in law. Relying on the courts to pick every last nit and comma is political cowardice certain to lead to bad results.
all this is obscuring the real question for the day:
is there a bigger dick in the galaxy than david addington?
“Again, I don’t want to get into a historical debate because it’s silly.”
It isn’t. You can’t claim that Scalia is cherry picking unless you know that his answer is wrong. If you don’t want to get into the historical debate, you can’t know that it is wrong.
Part of the reason why there hasn’t been much litigation on the 2nd amendment is because it is so darn obvious that the collective rights idea is wrong. (Obvious enough that literally no one even thought of it until about 60 years ago.) No other right in the Constitution gets the treatment that the 2nd does.
Is it easier than investigating penumbras? Yes. Is it easier to understand than Kennedy fabricating a moral consensus out of thin air? Yes. I completely disagree with you about interpreting the text. If that isn’t accessible, neither is the free-form stuff that living constitutionalists want to do. Ask someone who has never heard of Roe v. Wade to justify a right to abortion from the Constitution. Then see if they can come up with the trimester system. You think textualist analysis is hard? Try that.
Scalia’s understanding of the text is EXACTLY what the lay reader of the Constitution has thought about the 2nd amendment for essentially 200 years. When you poll Americans about an individual right you get more than 70% of them thinking that the text gives one.
Scalia’s opinion is exhaustive only because it has to cut through 45 years of psuedo-intellectual masturbation on the topic.
Have you read any of Volokh’s work on the history of the amendment? Because it is comprehensive and completely devestating to the idea that there wasn’t a strong individual right.
“If nothing else, the policy concerns could convince the Court that they’re not competent to make these decisions. Thus, maybe policy considerations would persuade them to allocate authority to legislatures and review them under a very deferential standard.”
Whoa. You defend the result of Roe right? You think that the Court isn’t competent to touch on criminal policy but that it can set medical policy? And that it gets to do so for a non-explicit right but has to back off on an explicit right? How does that work?
And where do you get off worrying that an examination of history is anti-democratic. Again, hello abortion rulings? Where did your democratic concerns go there? Hello death penalty ruling. Where are your democratic concerns there now?
“The opinion is completely inaccessible to the American public.”
The 2nd amendment however isn’t. And Scalia’s opinion is exactly in line with what any casual reader of the 2nd amendment who hadn’t already heard the modern anti-gun line would expect.
When the Second Amendment was written, guns were a necessary part of frontier life, to hunt game as well as to provide protection from Indians and criminals in an environment with very few police.
No, when the second amendment was written, guns were seen as necessary to kill British soldiers, or anyone else who ignored the rattlesnake on the flag.
It wasn’t about hunting, and it wasn’t about law enforcement.
I’ve grown very disillusioned with the gun rights advocates, I’m disappointed in the court ruling, and I think a large proportion of gun owners are simply nutty. I wouldn’t allow a gun in my house, I would try to avoid going to someone else’s house if I knew they had one.
But weak arguments don’t do your side any good. The purpose of a militia is not to go hunting. The purpose of a right to bear arms is not to scare off burglars.
now_what, I don’t understand your reasoning. You assert that:
when the second amendment was written, guns were seen as necessary to kill British soldiers
But when the Second Amendment was written, the war with Britain had been over for six years, and there weren’t any British soldiers to kill. And there’s no need for us to speculate on the unwritten intentions of the Founders here; the fact is that guns WERE used for hunting, and they WERE used for defense against Indians on the frontier. These factors were not explicit in the Second Amendment, and I do not claim them to be. But they were most definitely part of the historical context in which the Second Amendment was written.
Besides, I’m not a gun rights advocate. I think that we should have limitations on gun ownership. I’m trying to approach the problem with intellectual integrity.
But when the Second Amendment was written, the war with Britain had been over for six years, and there weren’t any British soldiers to kill.
There weren’t any British soldiers left to kill in America, and there was a reason for that. They could come back of course.
I’ve said this before and will again: the very heart of the “widespread gun ownership checks tyranny” argument has been tested and failed completely.
For twenty years or more, political discourse in a whole lot of online forums was swamped by people telling the rest of us how the US was getting ever more tyrannical, and that the day would come when on some flimsy pretext the government would abandon habeaus corpus, engage in unlimited surveillance of everyone it felt like spying on, arrest people on arbitrary grounds and then abuse them any way the captors felt like, and so on.
It turns out they were right about that part.
They also told the rest of us that when this happened, they would rise up en masse. They would free unjustly held prisoners, put terror into the hearts of agents of tyranny, maybe even overthrow the tyrant him/herself. (As the ’90s went on, the hypothetical tyrant was increasingly likely to be portrayed as a woman.) And did they? Did they hell.
There are no martyrs from the RKBA crowd. Their organizations sometimes join in efforts mostly initiated and staffed by others, but apart from objections to a handful of specific proposed restrictions on gun sales and such, one hears of no RKBA leadership on any of the rest. To the contrary, one hears a great deal of cheerleading for warmaking abroad and tyranny at home as long as all the right people get it, and one hears silence. Where are those freed prisoners? Nowhere. Where are those terrified agents? Nowhere. It was all the purest bloviation.
It’s really very rare for such ambitious claims about what one will do oneself and what one’s allies will do in a moment of profound crisis. But Bush/Cheney gave us all the chance. And all of you going on about how guns keep the republic safe and free are completely full of it. All the things you warned us about came to pass, and where are you? Right here with the bulk of us, and well behind some – there are individual posters here who as single people have done more actual good for American liberty than half the membership of the NRA and such groups.
It’s liberal lawyers, academics, journalists, and the like who are actually pressing the government, pretty much, and liberals at large funding them, while conservatives and libertarians (with way, way too few exceptions) either cheer and keep voting for the tyranny or sigh and shake a finger and then keep voting for it. The RKBA claims about guns’ role in society are demonstrably false for America at the beginning of the 21st century, and no amount of dithering over 18th century will change that. The Second Amendment as constituted is useless not because of then, but because of now, because of you its champions.
PS: It will of course be a glad thing if the bloviators ever do get serious about fighting tyranny, because tyranny is really bad and needs all the opposition it can get. But I’m not holding my breath waiting – it seems like we are instead well into the phase where all the loyal cheering section for the tyrant busily tries to pretend they didn’t say things. I fully expect lawsuits against Google, the Internet Way-Back Machine, and the like from right-wing legally minded folks who wish their embarrassing words better hidden.
But hey, always glad to see clues, if and when they break out.
sebastian,
i am assuming that you are not really familiar with the material you are discussing. but first, a logical error:
“You can’t claim that Scalia is cherry picking unless you know that his answer is wrong. If you don’t want to get into the historical debate, you can’t know that it is wrong. ”
First, you can know that there is cherry picking going on even if you believe the answer is right. Second, “i don’t want to get into the historical debate” means that it’s not a productive discussion to have when the author is looking to make another point.
More importantly, you seem to hew to a fairly tortured understanding of the understanding of this right through the 20th century. It is actually the “individual rights” critique which is the new kid on the block, not the collective rights critique. It is the scholarship of sandy levinson, et al. that moved this debate from the fringes of the NRA to mainstream moderate acceptability.
I think that you can make a good case that the framers understood the right to belong to individuals, unconstrained by the purpose of arming a militia. What I don’t think you can do is argue that the Supreme Court has been off the reservation all these years in not seeing it that way, since I’d guess that not one judge on the BURGER court would have voted with Scalia today.
You seem to think that you have several “boo-ya” moments, most notably when you force some analogically shite comparison to Roe but again, you’re prone to inferring widespread opinion about a case from caricatures of that opinion, rather than the source material. Most law scholars will tell you that Roe was wrongly decided (I bet publius would). The issue there is stare decisis.
And you simply fail to grasp on a very fundamental level, the meaning of publius’s “undemocratic” quip. He’s not saying that the result is undemocratic (holster your rehearsed roe diatribes). he’s saying that the method of cherry picking and complicating history is anti democratic because it makes the meaning of contested issues inaccessable to a public now incapable of having a debate about it. I’m not saying I agree or disagree with it, but you seem simply to misunderstand the point.
all in all, this was the right decision, with very weak opinions on both sides. i would have preferred to see roberts or alito right this one. like boudemienne, it’s a tough question. it’s a shame that nobody can acknowledge the tension in the predicate material and accept that the evidence is not stacked decisively in favor of one outcome.
To be fair, Bruce, it’s also hard to see how “gun ownership” ever could fight tyranny of the Bush/Cheney kind. What could the NRA members do with their guns in response to the rigged elections or warrantless wiretapping or the denial of habeas corpus? For all I know, Glenn Greenwald owns a rifle: but he didn’t fight warrantless wiretapping with it. The NRA bloviating about how these weapons would fight tyranny was nonsense from the start – it belonged to The A-Team fantasies rather than the real world. People want to own guns because they like to own guns, not because private gun ownership has any point or use for the vast majority of people in urban areas.
Jes: To be fair, Bruce, it’s also hard to see how “gun ownership” ever could fight tyranny of the Bush/Cheney kind. Quite true. But honestly, if you go back and look at pro-RKBA rants of the ’80s and especially the ’90s, you find a significant number of people writing about a scenario with a lot of the features we actually have. It’s just all being done by people who profess in public to believe in God, often go to church, hate teh gay but of course make exceptions for their relatives, claim to respect business, and absolutely aren’t letting in the UN’s blue-helmeted thugs. They spent a generation telling the rest of us how set they were for it. It’s more of a failure on their terms than yours or mine.
(Quite separate from that stuff, there is a class of people I belong to who do get some use out of firearm ownership when they’re properly trained: disabled people, especially poor ones. Too many disabled Americans live in areas where adequate police response just doesn’t exist, and a trained firearm owner can repel a burglar or other intruder with a competent display and no shooting. I know something like half a dozen people who’ve done this, who really lack other means of self-defense. But then none of them are opposed to licensing that calls for the periodic display of competence to the authorities, either, partly because they all enjoy the exercise of target shooting – it’s good upper-body exercise, among other things. But that has precisely zero to do with the RKBA fantasy.)
Originalism says we must surrender our ability to make decision to the people who were living 50, 100, 200 years ago. This is the incorrect premise of originalism that renders it an obstacle to good jurisprudence. This post, while excellent, actually doesn’t go far enough; even if the historical record is clear, that is no excuse for letting people who never saw a slum or a handgun make decisions about how handguns should be handled in slums.
“the Heller opinion is an indictment of originalism.”
No, it isn’t. It’s an indictment of Scalia. You don’t get on the Supreme court if you’re a consistent originalist, you simply don’t. Neither major party has any desire to be limited to only those powers an originalist reading of the Constitution would give them. The only difference is that, for political reasons, Republicans have to make noises about wanting originalists. But they never nominate actual originalists to the Court.
Scalia wanted to uphold the 2nd amendment, but could not uphold an originalist second amendment, because that would, unambiguously, involve a right to military arms. And Scalia simply does not overturn long established laws, like the NFA.
So Scalia had to craft a faux originalist opinion, with originalist elements, but rejecting a genuinely originalist conclusion. But he didn’t craft it because an originalist opinion was impossible, he crafted it because he didn’t want to uphold the right the 2nd amendment really embodies.
It does not prove something is impossible, when somebody sets out to do something different.
Scalia’s opinion is blatant results-oriented analysis dressed up as rigid historical analysis. The idea that this result is compelled by the history is, frankly, absurd.
You’re probably right – the legal stuff is over my head. However, the historical analysis in the dissent appears to lack some rigidity as well – as in out and out mistakes.
…at p.2 of the Stevens dissent he refers to NFA and US v. Miller: “Upholding a conviction under that Act, this Court held that…”
Same mistake the 9th Circus made years ago and had to issue a new opinion, since Miller was never convicted — commentators noted this was pretty suggestive the court hadn’t bothered to read Miller before citing it.
Other factual errors are cited as well. (via Insty). IANAL, but it seems to me that if you are going to base your dissent on a historical case you might want to at least get the outcome of that case correct.
Scalia’s understanding of the text is EXACTLY what the lay reader of the Constitution has thought about the 2nd amendment for essentially 200 years. When you poll Americans about an individual right you get more than 70% of them thinking that the text gives one.
i like this new talking point the right is using. it makes me smile deep inside. poll data from 1815 ? awsm. i bet the data’s accurate, plentiful and reliable.
so, those 70%, what did they think the first 13 words of the amendment were saying ? or did they simply ignore them (as Brett tried to claim, yesterday) ? crosstabs, baby, yeah.
Chris Crawford: “I’m not averse to an amendment that explicitly guarantees an individual right to own handguns; I just want to see the issue hammered out by society and formulated in law. Relying on the courts to pick every last nit and comma is political cowardice certain to lead to bad results.”
It’s not exactly cowardice to don’t pick fights you can’t possibly win. There are institutional reasons for this – a system set up to make passing or changing any laws, let alone the constitution, far more difficult than blocking laws.
This is bad. It’s a fundamental misfeature of the constitution, simply speaking. It has resulted in leaving far too much to high court judges, who have by necessity built a gigantic system of interpretation of it, a veritable Talmud. So, far too much crucial decisions about what kind of society we should have is left to the “priests”, out of reach for voters.
yeah seb – i’m going to have to agree with kovarsky on several points. i’m not sure how anti-roe tirades are relevant to the point about amateurs dealing with an extensive, complicated and mambiguous historical record.
and look, eugene volokh is a very smart guy – smarter than I am to be sure. but he’s not a constitutional historian – his undergrad degree is in computer science. i’m sure he’s read a lot and all, but that’s not really what we need here.
again, the point isn’t so much that one side is wrong or right but that the record has a million data points that are contradictory. you only don’t think so if you cherry pick or reduce the sample.
Totally OT, but shouldn’t a female writer be called “Publia” instead of ” Publius”? OR did my high school Latin teacher get it wrong about Latin genders? Just had to get that off my chest 🙂
“poll data from 1815 ?”
We don’t have polling data from 1815, but we do have an essentially complete lack of any evidence that ANYBODY thought the 2nd amendment was anything besides a guarantee of an individual right, back then. And plenty of evidence that people thought it an individual right.
The notion that it wasn’t an individual right was essentially a 20th century creation of people trying to work around the 2nd. There was no reason for anybody to resort to such a rationalization prior to a movement for federal gun control; With the 2nd amendment not applying to state efforts, people who wanted gun control had no reason to lie about it, it didn’t get in their way at the state level.
The problem with Scalia’s ruling seems to me that he wants to have things both ways. He wants to proclaim that there is an individual right to bear arms but he wants all the restrictions on firearms to remain in place. But thats seems impossible.
Why, exactly,should I be allowed to possess a semi-automatic 9 mm for self defense, but not a fully automatic AK 47, a short barreled shotgun, or even a SAW ( .50 caliber heavy machine gun). If I have the right to keep and BEAR arms, shouldn’t I be allowed to carry my weapon in public, concealed or unconcealed?
If the right to keep and bear arms is like to right to vote, then shouldn’t we do away with any attempt to restrict that right with onerous licensing and registration requirements and special taxes?
Scalia just airily comments that nothing in this decision should be taken to affect the current restrictions, as if this is a purely abstract debate about labels, but it is hard to see why he thinks Heller should have no effect on current statutory restrictions.
“but it is hard to see why he thinks Heller should have no effect on current statutory restrictions.”
There’s no logic behind it except the minor matter of counting to five. We don’t have five Justices willing to overturn existing federal gun laws. Except possibly the Lautenberg amendment, that’s a constitutional obscenity on multiple fronts.
We don’t have polling data from 1815
then why don’t you guys stop talking about it like you do ?
but we do have an essentially complete lack of any evidence that ANYBODY thought the 2nd amendment was anything besides a guarantee of an individual right, back then.
and again, you have nothing on what they thought those first 13 words meant ?
And plenty of evidence that people thought it an individual right.
it’s certainly more useful to interpret it that way, if your life is one where a gun is a near-necessity. that doesn’t mean people they sat down and studied the text of the amendment and came to your preferred conclusion.
I think it’s pretty difficult to argue that 18th and 19th century Constitutional scholars didn’t “sit down and study the text of the amendment”. We’ve got George Tucker and Judge Storey, contemporaries and near contemporaries of the authors and ratifiers, who agree with us.
I think it’s pretty difficult to argue that 18th and 19th century Constitutional scholars didn’t “sit down and study the text of the amendment”
18th and 19th century Constitutional scholars? wow! that’s a big shift. i thought we were talking about everyday people and how they understood it. certainly that’s what you were insisting yesterday, and what Sebastian is talking about, above.
Look, Cleek, we’ve got extensive evidence for people, ranging from constitutional scholars to ordinary folks, thinking it’s an individual right, and zip in the way of evidence ANYBODY thought it was something else, prior to the early 20th century.
Your guys on the Court couldn’t even get Miller right, apparently didn’t read enough of the case to realize Miller was never convicted. Pathetic.
No, no, no, no, no, no, no.
We have to look at the history to understand what rights they were protecting, just as we have to look at the history to understand what the law is.* It’s of no relevance if you or I are not competent to judge some particular historical debate or another — I’m not a gun guy either — it’s the job of the advocates to present their best honest case, and of the judges to choose. Lose that, and we become what the wingers say we are.
Now I think Justice Scalia is an intellectually dishonest hack, and have thought so since I started reading his opinions in earnest 20 years ago. So I’m more than prepared to believe that he’s engaged in his usual practice here. That’s no indictment, though, of trying to measure the rights based on the historical context (always keeping in mind Chief Justice Marshall’s admonition that we’re not to expect a level of detail in constitutions that we would find in statutes or regulations).
* Like most lawyers, I’ve had my share of examples of the need for this. Is a claim that a contingent fee was excessive jury triable? Is there any merit to the claim that Congress exceeded its powers under article I when it created the federal thrift system? Can Congress cut off habeas corpus for civilians held in an offshore prison, completely under the control of the United States? Is attempted bribery of a witness admissible, and is a ruling that it isn’t reversible error? Is the espousal by the US government of a citizen’s claims against a foreign sovereign a compensable taking under the Fifth Amendment? Can a federal court dismiss a claim for money damages because an identical claim is pending in the courts of another country? Can a victim of terrorism get an award of punitive damages against Iran’s Ministry of Intelligence, and was the law on this question changed in October 1998 (when Congress passed a statute including waiver authority, which the President exercised)? All of these and more require presentations on the history, and as an advocate, one cherrypicks at one’s peril.
Just two nits:
A) Hunting rifles had little or no military utility before the invention of the Mine system in the late 1850s (just in tie to make the US Civil War hellish). In the American Revolutionary war, pace the myth, the colonials won (a) with French sea power, and (b) fighting according to 18th Century European convention, in standard infantry formations, robotically loading and firing together. The idea of the heroic frontier Natty Bumpo defeating the “redcoats” has at least two flaws:
– A fair share of the actual frontier folk took the Loyalist side; see the history of the King’s Royal Regiment of New York.
– The Hessians the British hired included a goodly share of Jeagers; military forest rangers, with weapons and tactics for arboreal combat which simply worked better (rifle with sword mounts, for one thing) than anything the revolutionaries had.
B) Frontier settlers needed guns to protect them from Indians the way people making unauthorized bank withdrawals today need guns to protect themselves from guards, tellers, and police officers.
Look, Cleek, we’ve got extensive evidence for people, ranging from constitutional scholars to ordinary folks
cite?
note that you’ve set the bar at “majority”.
You want originalism?
From the English Bill of Rights, 1689:
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law
http://www.yale.edu/lawweb/avalon/england.htm
Is it not likely that “the right of the people to keep and bear arms” which must not be infringed” (note that the language indicates a pre-exisiting right) is the right guaranteed by the earlier English Bill of Rights (with allowance for the American rejection of an established protestant church)?
And doesn’t both the “well-regulated” language in the American Bill and the “suitable to their conditions and as allowed by law” language from the English Bill indicate rather plainly that the government can regulate the heck out of weapons?
Look, Cleek, we’ve got extensive evidence for people, ranging from constitutional scholars to ordinary folks, thinking it’s an individual right, and zip in the way of evidence ANYBODY thought it was something else, prior to the early 20th century.
Yes, Brett, but historically, I think you’ll find that’s because until the early 20th century no one saw any need to regulate firearms. I know the UK’s first legislation regulating ownership of firearms became law in 1903. Legislation came in after guns and ammo became cheap and widely available and it became clear that regulation was needed.
There’s zero evidence that the Second Amendment was meant to apply to anything other than the provision of a well-regulated militia, just like it says in the text: it seems unlikely in the extreme that it ever occurred to the authors of the Bill of Rights that there would ever be a need to regulate individual possession of firearms, since that need arrived with cheap and mass-produced firarms which did not exist in the 1790s.
Hell, we provide any evidence at all, and you’re out of luck, because you’ve got none for contrary views in that time frame.
I’d suggest you read some of the amicus briefs on the winning side, this was covered extensively. http://dcguncase.com/blog/case-filings/
Spragge, I agree that French naval power was essential, but I also don’t think one can or should ignore the impact of the victories at Bennington and Kings Mountain on the campaigns of which they were part.
I just re-read Miller. The fact that is was up on dismissal of the indictment rather than conviction has nothing to do with the holding, and an error on this point is the kind of meaningless nitpicking that people who don’t understand how law works get all caught up in. I haven’t read the cases cited in n.3 — only the Story commentary, which isn’t as supportive of people just buying any old gun they want as some of the advocates would have it.
the “well-regulated” language in the American Bill
you can interpret “well-regulated” in the same way you’d interpret “regularity” in reference to your bowels: working smoothly and reliably.
what’s working smoothly and regularly, though? the Militia, of course.
but all that stuff is in the vestigial first 13 words, which i’ve been told we can just ignore. Madison had a thing for whimsical non sequiturs, i’m told.
“I think you’ll find that’s because until the early 20th century no one saw any need to regulate firearms”
I think you’ll find that the first real gun control laws in America came shortly after the Civil war, as an effort to keep newly freed slaves defenseless against the Klan.
Nobody tried to regulate them at the federal level until the 20th century.
REA, here’s what Story had to say about that: But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.
Hell, we provide any evidence at all, and you’re out of luck, because you’ve got none for contrary views in that time frame.
again, the bar is “majority”, and “as understood by the common man”. none of this “scholar” nonsense.
I’d suggest you read some of the amicus briefs on the winning side, this was covered extensively. http://dcguncase.com/blog/case-filings/
any in particular? i’m not interested in sifting through NRA propaganda to find your evidence for you.
cleek: you can interpret “well-regulated” in the same way you’d interpret “regularity” in reference to your bowels: working smoothly and reliably.
And cleek wins the thread.
Charley, he was pointing out that the British were attacking the right, and contrasting them to us.
So lawyers don’t have sufficient ability to do history as it relates to a legal text, and so shouldn’t try, but do have the sociological and political training to assess how the meaning behind the text means in the present day?
This doesn’t make a lot of sense. Is your argument is that constitutional issues should largely be fought out through the legislative process?
adding, re: Brett’s research:
and, really, what i’m looking for is evidence that:
a) people really understood 2A to mean what you want it to mean.
and
b) that they actually read it and understood the text to mean what you want it to mean.
i’m not talking about what people want to believe, or what they’ve been told. after all, a majority of Americans can believe something they don’t understand or haven’t studied, no problem.
the first real gun control laws in America came shortly after the Civil war, as an effort to keep newly freed slaves defenseless against the Klan.
It was also not uncommon in the so-called Wild West, for the sheriff (e.g., Wyatt Earpe) to insist that anyone coming into town check ther guns in at the sheriff’s office.
That’s how I understand it, too, Brett. I still think Story puts sufficient emphasis on the militia aspect of the provision to make the holding in Miller a valid conclusion. I agree with you, though, that if the right is not as understood in Miller, then there’s no realistic limit on the hardware involved. I don’t think there’s a valid case to make from this amendment about an individual’s right to protect his/her home from a burglar.
Outstanding comments by Bruce Baugh, though the RKBA movement does have its martyrs: McVeigh, Weaver, and Koresh.
I keep seeing Bret Bellmore’s claim the Second Amendment has always been a guarantee of an individual right. But this flies in the face of several historical facts. First, the original draft of the Second Amendment indicated the military nature. Second, the only known dissent was a minority dissent in the Pennsylvania ratification convention seeking a guarantee to hunt game.
Slightly OT: My gut feeling yesterday was that this would take the issue off the table as far as the election goes. But I’m seeing more sentiments like this today:
5-4. Let that sink in, folks. Even though it was expected, it’s now official. Ponder it for a moment.
If the Democrats had appointed just one more Justice to the U.S. Supreme Court, there would be no individual right to possess firearms in the United States of America.
Kind of misses the point that Stevens was appointed by Ford and Souter by Bush41, but there’s no sense letting that get in the way of a good meme. Expect that as the new election issue I guess. The next president will likely have the opportunity to appoint a couple of new Justices and if it’s Obama the second amendment will be overturned by judicial fiat.
You want to trade gun-checking for the right of the law to pistol-whip as needed?
The Supreme Court hasn’t been on or off any reservation all these years. It hadn’t ruled on it. If you are relying on Miller to say that it did, you need to reread the case.
“And you simply fail to grasp on a very fundamental level, the meaning of publius’s “undemocratic” quip. He’s not saying that the result is undemocratic (holster your rehearsed roe diatribes). he’s saying that the method of cherry picking and complicating history is anti democratic because it makes the meaning of contested issues inaccessable to a public now incapable of having a debate about it. I’m not saying I agree or disagree with it, but you seem simply to misunderstand the point.”
My statement about his undemocratic thesis has nothing to do with results and everything to with his point about allegedly making contested issues inaccessible to the public. Scalia’s arguments are at least as accessible as any of those of his liberal rivals and of any living constitutional proposal I’ve heard of. Publius claims that textual and historical analysis is less accessible than what the other judges do, and that seems very unlikely.
That is exactly why I raised Roe. You say that the ‘real’ debate about Roe is stare decisis. That is rather thick legal principle that is at least as difficult for a layman to digest as the idea that people used guns on a regular basis in the US. And of course being faithful to previous rulings has nothing to do with it when it was originally passed off by the Supreme Court. And that decision was at least as difficult for a layman to understand as any of Scalia’s arguments in Heller. Further, it was at least as far from the Court’s basic competence in areas of medicine as Scalia’s is in history.
Same with the emerging moral consensus arguments in Kennedy. Your average layman would have a large difficulty understanding how that moral consensus could possibly exist when more than a majority of Americans appear to disagree with Kennedy.
Both of those are directly on point with what publius seems to be saying.
“and look, eugene volokh is a very smart guy – smarter than I am to be sure. but he’s not a constitutional historian – his undergrad degree is in computer science.”
That is incredibly crappy and dismissive. Volokh’s graduate degree was in law. He is a law professor. He clerked for the 9th Circuit and then the Supreme Court. He is the author of quite a few law review articles directly on this point including the history of the 2nd amendment. He is in fact a constitutional historian on this point.
He’s just a smart comp-sci geek? Meh.
the second amendment will be overturned by judicial fiat.
as if he could find judges who could and would do that and who could also get through the nomination process. i got a sneaking suspicion the GOP is about to rediscover it’s love for the adversarial form of “advise and consent”.
A few brief comments, before I go do this thing we call “work”:
It’s an indictment of Scalia
I agree with Brett! We’re talking about guns! bring my smelling salts.
publius, in your post you refer to: the Court’s tedious examination of dueling history books
Did they actually talk about the history of duelling? — which is not IMHO irrelevant to the history of right to bear arms, not at all.
Otherwise — what Bruce Baugh said, except that I personally do not know disabled people who’ve used guns for self-defense. But then, most of the disabled people I know are women.
Did they address incorporation? I assume not because D.C. is federal–but, if not, isn’t that a huge question mark for state & local gun laws in other jurisdiction? I’m ambivalent on the interpretation of the Second Amendment; the text is ambiguous & the purpose (preventing reliance on tyrannical standing armies anymore) simply cannot be accomplished anymore–I maintain that suing military contractors does more to guard against the abuses the founders feared than gun ownership. OTOH, the text is ambiguous, and neither the “right to join the militia” nor the “right to private ownership” is entirely satisfactory, and I’m sympathetic to idea that you should err on interpreting the bill of rights broadly.
But, as far as the current 14th Amendment incorporation tests, I think the right to own guns fails the “fundamental to ordered liberty” test with flying colors. I know Thomas prefers to rely on the privileges & immunities clause instead; it’s a decent textual argument but you have to overturn over 100 years of precedednt to get there & I have no idea which other justices are on board.
Very even-handed treatment by Sandy Levinson here (via Insty).
A good point on the individual right question:
Whatever might have been the case in 1787 with regard the linkage of guns to service in militias—and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge—there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship. One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so. Thus, in effect, they could not be citizens.
bring my smelling salts.
Second that!
Katherine, there’s a vague footnote about incorporation, so it’s left for another day.
Is your argument is that constitutional issues should largely be fought out through the legislative process?
von, I think you’ll find plenty of this in publius’ oeuvre.
For myself, I have no problem with it, except that the judiciary gets the last at bat, since it is the province and duty of the judicial department to say what the law is. Emphatically.
Katherine,
These are the only two points re: incorporation that I found in the main opinion:
Footnote from the controlling opinion that may indicate that the 2nd is not incorporated against the states:
With respect to Cruikshank’s continuing validity on incorporation,
a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by
our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252,265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.
But this was interesting later in the opinion because it seems to say the Bill of Rights as a whole will be:
For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law
Volokh’s graduate degree was in law. He is a law professor. He clerked for the 9th Circuit and then the Supreme Court. He is the author of quite a few law review articles directly on this point including the history of the 2nd amendment. He is in fact a constitutional historian on this point.
Not to mention that he was the first cite in the ruling and his law review articles were cited three times in total.
this was interesting later in the opinion because it seems to say the Bill of Rights as a whole will be
So, we’re going to require 12-person juries in civil cases and require grand jury indictments to commence state law criminal prosecutions?
Rea,
I guess that is why it is dicta: the sentence seems to say the Bill of Rights as a whole.
Scalia’s opinion is better than Stevens’, but it’s simply too broad and gets bogged down in history that should be irrelevant. There’s a ton of dicta in it. Some, particularly of the “this doesn’t overturn the apple cart of federal gun control laws” variety, might be justified. Most is not.
Scalia is most persuasive in holding that the Second Amendment includes some individual right to gun ownership, apart from participation in a militia. Stevens’ rejoinders on this point are seldom responsive and, where they are, are not persuasive. (The points that Publius mentions are, at best, ambiguous and could be read to support an individual right.)
The Supreme Court has made three other recent rulings and there is a clear pattern: siding with the millionaires on campaign finance, siding with Enron agasint the rate payers of Snohomish County and siding with Exxon against the fishermen. That’s your conservative Court at work. That’s their values, their interpetation of the Constitution, thier understanding tof the purpose of goeverment , their beleif about who the law is supposed to protect.
One more Justice and they’ll go after Miranda, Griswold, anti-discrimination laws and environmental regulations.
Then we can have a states where corporations can commit crimes with impunity but pharmacists can’t sell birth control pills to married couples. Ricky Santorum’s vision of the Utopia.
The stuff about originalism and undoing liberal activism is all eyewash.
von, I think you’ll find plenty of this in publius’ oeuvre.
For myself, I have no problem with it, except that the judiciary gets the last at bat, since it is the province and duty of the judicial department to say what the law is. Emphatically.
To twist a phrase, isn’t that an exception that makes the rule?
My personal view is that Judges need to decide less. There is a legitimate role for strong judicial intervention to defend the privileges and immunities of minority groups from the assaults of a democratic majority. But too frequently the Court wades into disputes with policy judgments that are untethered to a specific right.
My use of the term “minority groups” is imprecise, because in some circumstances that “minority” may be composed of a single member (e.g., the person accused of a crime). But “individual rights” doesn’t quite capture it either.
My younger brother was conceived because my parents, who lived in pre-Griswold new Jersey, had to drive to NYC to get condoms. My brother is a wonderful person and the whole family is glad he exists but that isn’t the point. Tthe piojnt is that their is a right ot privacy–a right that the Scalis’s of this world want to take away.
Von writes that the purpose of the Constitution is to protect the minority from the assualts of the majority. I agree. I am going to phrase thigs a bit differently” I think the purpose is to prevent the majority from passing bad laws that unfarly or unjustly assault the explicitly listed or implicit rights of the minority. And that’s exactly where the self=proclaimed orginalists or the self proclaimed conservatisves who want to roll back “liberal activism” have a different philosophy. Their philosophy is to side with power at every opportunity. Then they pretend that they aren’t siding with power by rationaliZing that the Constitution doesn’t give them a basis for protecting the minority. Screw the fishermen. Screw Shohomish county rate payers. The hell with married couples who want to limit their family size. So what is a company has been paying a female employee less than a man for years. Not the responsiblity of conservative judges to do anything about any of that.
Is it easier than investigating penumbras? . . .
Scalia’s opinion is exhaustive only because it has to cut through 45 years of psuedo-intellectual masturbation on the topic
Adding the above to the list of things I wish I had written. Go Seb.
i’m not sure how anti-roe tirades are relevant to the point about amateurs dealing with an extensive, complicated and mambiguous historical record.
and look, eugene volokh is a very smart guy – smarter than I am to be sure. but he’s not a constitutional historian – his undergrad degree is in computer science. i’m sure he’s read a lot and all, but that’s not really what we need here.
This hits on a personal pet peeve-the notion that one has to be “smart” to discuss or argue about constitutional law. A “We the Smart People” line of reasoning. How about the presumption that the ordinary meaning should prevail?
It shouldn’t be that complicated. If it is, we’re doing something wrong.
Amen.
But violence levels in DC strike me as a bit more relevant to the question at hand.
to the legislature.
I think that the real problem here is that American politicians lack the political courage to do what the Founders expected: amend the Constitution to keep up with the times.
But why when it’s so much easier to win elections to get the justice you like and Bork the nominated justice you don’t like? The amendment process is so . . . tedious. And darn democratic. Easier to bypass all those ignorant red staters.
Nobody feeds themselves by hunting;
Have you ever tried to see how fast you can eat a 1900 lb. bull moose? Even with four kids that took a while for us.
And my 30-06 was a WWI infantry rifle no less, perfect for use as both a hunting rifle and a tyranny-busting militia primary weapon.
To paraphrase publius’ point, with which I agree, the problem with “originalism” is the phoniness of pretending that history lessons are the single and determinative method for resolving these questions.
Yes, the history is very useful in trying to understand what should be done, and should be given a high priority, but when it comes up ambiguous, then it is time to admit that some other logic is being used to decide the question. Scalia’s conceit and deceit is to pretend that history is in fact the sole and final arbiter. And this is where I also constantly cross swords with Sebastian — the pretense that this is all that is necessary and proper for judicial decision making.
It is as if Scalia was sitting there, carefully piling up historical motes on a scale, and surprise!, it just so happens that the tidbits weigh more heavily in favor of individual rights to gun ownership, and therefore the proper decision is revealed to us. That is pure bunk and Scalia is full of it to pretend that is how he makes his mind up on how to rule.
In this case, the history does, I think, suggest a policy that supports a finding of an individual right. That is persuasive, but it is stupid to pretend that the proper analysis depends solely on guesses on what people 200 years ago would have done if faced with the problem today. The analogy is to the 4th amendment and electronic surveillance cases — is it an improper search? History tells us next to nothing on how to decide this (except for nonsensical long digressions into eavesdropping cases), except to suggest a policy. But the core of the reasoning extending the 4th amendment to such “searches” is a modern policy choice, and it is nonsensical to claim that such judicial decision making is some form of improper activism.
However, publius, I would drop the point about Scalia’s methodology carrying an undemocratic taint. The whole friggin’ institution of the Supreme Court is seriously undemocratic — probably something not clearly anticipated in 1789 when they created a three part government with an overarching body of law called the constitution. Marbury v. Madison makes sense, but it results in lifetime appointees being the final arbiter on the core legal principles governing our country. The doctrine of restraint developed in the Supreme Court because of the awareness of this built in flaw and the undemocratic nature of this power — it is a real politik doctrine the demonstrates the extent to which the whole process of constitutional interpretation is not some form of received wisdom based on history lessons.
As a non-lawyer trained as a historian, I see questions in the amendment of whether it offers an individual right, and I think it does, but it clearly modifies that right by mentioning the basis of a well-regulated militia. Of greater importance to originalists, I would think, is what it provides a right to. It does not mention pistols or guns. It says “arms.” Arms were rifles, shotguns, and muskets in the 18th Century. Guns were artillery. Pistols were called small arms. Has anyone seen a militia inventory or supply list which included pistols as arms? I doubt it. The Court has invented a new right out of reverence for cowboys, gangsters, and the national lobbying firm for firearm manufacturers and handgun sellers also known as the NRA.
“but he’s not a constitutional historian – his undergrad degree is in computer science.”
Yeah, but he’s got a graduate degree, too; You might look up the subject, it will explain why he got cited in the opinion.
IOW, yeah, he IS a constitutional historian. Who happens to know some computer science…
This hits on a personal pet peeve-the notion that one has to be “smart” to discuss or argue about constitutional law. A “We the Smart People” line of reasoning. How about the presumption that the ordinary meaning should prevail?
You’re continuing to distort publius’ argument in much the same way that Seb has done. publius never said that Volokh wasn’t smart; in fact, he said quite the opposite. But he also said that Volokh wasn’t a historian and had not been trained as a historian. Most smart people are not historians; there’s no shame in that. But I think we should be wary of accepting complicated historical arguments from people with zero training in history, just like we should be wary of accepting complicated medical arguments from people with, well, zero training in medicine. Don’t you agree?
I’m afraid I don’t understand the basis of your pet peeve though. Constitutional law is a field that requires some specialized knowledge and practice, just like the rest of the law is and just like most professions are. There is nothing wrong with that: most interesting subjects in life are hard and are not amenable to the average person unless they’re willing to spend several years studying. Being “smart” is much less important than not being “ignorant”; I don’t know what it would take to make the average person smart, but I have some idea of how to remove ignorance, and doing so takes more time and energy than most people are willing to expend.
“And this is where I also constantly cross swords with Sebastian — the pretense that this is all that is necessary and proper for judicial decision making.”
Ok, and I’m not sure you disagree with this based on the rest of your comment, but cutting out the originalism undercuts the argument that we need to respect the Supreme Court’s opinon on the Constitution. Marbury v. Madison is about restraining the legislature from transgressing against the boundaries set by the Constitution. We are supposed to respect the Supreme Court in that because it keeps dragging people back to the Constitution itself.
If the Court gets to engage in the novel and exciting world of ‘progressing’, there really isn’t any need for us to privilege its idea of progress over the legislatures. The only claim that the Court had over the legislature was that the Constitution’s text was a higher law than anything the legislature made. That is a fundamentally conservative role for the court (essentially the legislature makes changes, the administration implements them, and the Supreme Court keeps them from making changes that are beyond the Constitution). Take away that function, and why should care what 5 members of the court say?
The problem with legal realism is that it undercuts the reason we should bother listening to the Court.
If it is really true the the Court is just 9 politicians voting their conscience on policy issues, I don’t see why we need the Court. We can have legislatures vote their consciences on policy issues, and they can be voted out of office when they make mistakes.
To me this comes down to a fundamental disrespect of the amendment process. If you think that gun rights are inappropriate in the modern world, make an amendment. If you think that there is a moral consensus that the death penalty can’t be used for child rapists, it should be easy to get an amendment. If not, maybe this isn’t a great area for ‘progressiveness’ from the Court.
What really baffles me is that so many people on the left seem to want super-strict looks at abortion laws which don’t even appear anywhere near the Constitution (which is not say definitevly that they aren’t protected, that is a different fight) and an easy-breezy approach toward rights that explictly appear. Whatever you think about the 9th amendment, it surely doesn’t suggest that the unlisted rights should be protected MORE than the listed rights.
“But he also said that Volokh wasn’t a historian and had not been trained as a historian.”
He is in fact a constitutional legal scholar published in the appropriate journals on the topic of the history of the 2nd amendment. He is also a professor of law, and clerked for the Supreme Court. Which makes the “computer science” dismissal kind of cheesy. And if you read his published-in-the-appropriate-journals articles you will find that he has a very comprehensive understanding of the history.
What exactly is the process to become a certified historian?
Is it like passing a bar exam?
OK, so Sandy Levinson says:
“Whatever might have been the case in 1787 with regard the linkage of guns to service in militias—and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge—there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship.”
Note, however, that he has chucked “originalism” out the window and appealed to a “mid-19th century” consensus. I wonder exactly what constitutional standing such temporal cherry-picking holds. Let’s just ignore the two periods that actually matter: a) the ratification debates, where the “individual” right was never even discussed, and b) modern precedent, where the right has been read as “collective” for at least 75+ years. Think of all the other doctrines we’d get by such an interpretive method: white supremacy (even abolitionists accepted it!), bans on women lawyers, etc. Levinson’s analysis is even worse than Scalia’s.
But he also said that Volokh wasn’t a historian and had not been trained as a historian.
you’re right, Turbulence, and I should have been more clear and less glib. I am using “smart” in that sense (you’re not a historian therefore . . .). I specifically don’t think you need to be a historian to interpret the 2nd A. Even if Volokh didn’t have any legal training he would be qualified to comment on the 2nd A.
I look at a lot of the legal reasoning employed in constitutional law as being a version of the emperor’s new clothes. A justice opines and says “look, see how pretty?” I say there is often not a lot there. Too complicated for sophistication’s sake. These opinions were way too long on both sides as they typically are.
This is why I am in favor of non-lawyers getting appointed to the bench. Not all, but some would be welcome. Good, common-sense people and smart, just not “too smart” that they mistake the beauty of their prose and diction for actual legal reasoning.
One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so.
Now that’s originalism you can believe in!
Sebastian: What really baffles me is that so many people on the left seem to want super-strict looks at abortion laws
Does it really baffle you that so many people – on left and on right – care so much about basic human rights for women?
Thanks for the insight into how you think of women, Sebastian. Not.
Eugene Volokh is of course a constitutional legal scholar published in the appropriate journals on the topic of the history of the 2nd amendment. He is also a professor of law, and clerked for the Supreme Court. who is jim-dandy with torture as long as it’s all very earnest, and who’s willing to indulge in some very outre speculations about the emotional lives of gay people without actually bothering to check. He’s the sort of empathy-dead rationalizer who makes the regime of tyranny look good. Not someone I would be particularly glad to have on my side, or to trust to be doing anything but his usual schtick, which is rationalizing whatever the right authority wants to do.
Yes, it’s true, none of that bears on the historical and otherwise technical details of this case. But after a lifetime of being hectored by conservatives about how character matters, I’ve come to agree. If my argument has to be made by bad people, I take that as a clue that some rethinking is in order, and if I see bad people consistently being advanced as authorities, I take the causes they’re put forward for less seriously.
He is in fact a constitutional legal scholar
No one has questioned this. But note that “historian” is not the same thing as a “constitutional scholar”.
…published in the appropriate journals on the topic of the history of the 2nd amendment.
All of the journal articles written by him listed at wikipedia are for law reviews. Now, law reviews are excellent places for law professors to publish articles on the law, but they’re not places that have particularly exacting standards for historical analysis. As I understand it, law reviews tend to be edited by people who specialize in law rather than in history or medicine.
If you’re aware of any relevant articles he’s published in, say, the Journal of American History or some other widely respected academic arena where results are scrutinized by professional historians, I would greatly appreciate a mention.
He is also a professor of law, and clerked for the Supreme Court. Which makes the “computer science” dismissal kind of cheesy.
I think if you’re determined to read publius’ comment as a slight against Volokh, then yes, his comment was very insulting. However, a more charitable reader might instead conclude that publius’ point was simply that an undergraduate education in computer science doesn’t typically prepare one well for practicing the techniques of professional historians.
And if you read his published-in-the-appropriate-journals articles you will find that he has a very comprehensive understanding of the history.
I’m sure he understands a tremendous amount. But understanding a great many facts isn’t the same thing as having the practice and judgment to produce fair assessments of the historical record, as opposed to a long string of cherry picked facts. I might not worry if Volokh regularly published his 2A historical work in reputable historians’ journals where it would have to pass peer review and would be subject to peer critiques.
Taney’s reasoning, however, probably can be used to prevent the 2nd from being incorporated by the 14th amendment. I suspect a strong argument can be made that the legislature and States did not ratify the 14th amendment with the intent of arming blacks. In fact, I don’t think there is an originalist argument for incorporating the 2nd amendment. Anybody have one?
What exactly is the process to become a certified historian?
Is it like passing a bar exam?
I don’t know…what exactly is the process to become a certified computer scientist?
There is no certification authority that I know of. Instead, there are a number of features that contribute to the assessment that someone is a computer scientist. Getting a degree in computer science helps, but is neither necessary or sufficient. Ditto for membership in professional societies. Publishing or doing widely recognized work in the field counts for an awful lot. The bottom line is that even though I can’t give you a neat 1-sentence criteria for being a computer scientist, the concept is real and in practice, people can determine whether someone is a computer scientist with no trouble. I imagine the same holds true for professional historians.
You can certainly tell whether someone belongs to either of the major historical associations in the US, has published articles in the historical journals or books in the historical categories of academic presses, and like that. It is of course entirely possible to be an excellent scholar without such credential-making features – if the late Barbara Tuchman were to offer testimony on the subject of one of her books, I’d listen, just as I would to William Langeweische or Ezra Klein on subjects they’ve studied. But “historian” isn’t that hard a target to identify.
I am using “smart” in that sense (you’re not a historian therefore . . .). I specifically don’t think you need to be a historian to interpret the 2nd A.
I suppose you don’t “need” to be anything to interpret the 2A; everyone has an opinion after all. However, if you want to convince people that you’re random opinion is correct, then it helps
Volokh bases his arguments on a particular reading of history. That reading may be correct or it might not be (I have no opinion), but since he is making an argument that depends on us trusting his ability to study history, it seems that his training and skill in doing so is highly relevant.
Even if Volokh didn’t have any legal training he would be qualified to comment on the 2nd A.
I’m not sure I understand you here…are you saying that Volokh is a really smart guy and that therefore, we should listen to him even without a law degree? I might buy that if Volokh didn’t make arguments that hinged on the correctness of complex historical analysis. Or are you saying that anyone (not just Volokh) should be able to interpret the 2A?
I look at a lot of the legal reasoning employed in constitutional law as being a version of the emperor’s new clothes. A justice opines and says “look, see how pretty?” I say there is often not a lot there. Too complicated for sophistication’s sake. These opinions were way too long on both sides as they typically are.
I agree with you here. I think we as a society are relying on the constitution far too much to resolve basic social questions that it was never intended to speak to. Unlike some conservatives here, I don’t think that’s due to laziness or moral inferiority; we have a very challenging amendment process that tends to reward spoilers.
This is why I am in favor of non-lawyers getting appointed to the bench. Not all, but some would be welcome. Good, common-sense people and smart, just not “too smart” that they mistake the beauty of their prose and diction for actual legal reasoning.
This is a very interesting idea. I’d be worried about such justices developing an inferiority complex about their lack of legal training and thus being susceptible to courtroom manipulation, but that problem could probably be worked out.
The reason I wondered if the dueling histories involved histories of dueling is that I have no doubt — as someone who has studied that history — that the Founders in general thought: citizens have a right to bear arms. It was a mark of invidious distinction to limit the bearing of arms to the aristocracy, and we as Englishmen are proud such was never our custom. [n.b.: not necessarily historically true, but they would have *said* it was.]
But also: women cannot and should not bear arms. Women cannot and should not be full citizens.
There is IMHO a connection between the well-known Swiss insistence that every male be in the Army, and the fact that Swiss women didn’t get the vote until *1972*.
If you’re going to go dragging in the original intentions of the Founders, then you have to acknowledge that for them the Right to Bear Arms was woven tightly into the idea of Male Citizenship and Male Honor. *Everyone* is cherry-picking, pulling out the parts of the Founders’ original intention that you-all feel comfortable with — but not all the other baggage it was wrapped up with. And IMHO still is.
“However, a more charitable reader might instead conclude that publius’ point was simply that an undergraduate education in computer science doesn’t typically prepare one well for practicing the techniques of professional historians.”
Which would have been a more plausible reading if he hadn’t skipped over Volokh’s more relevant experience as someone with expertise in the history of developments in Constitutional 2nd Amendment law. Publius could have said something anywhere near “Being an expert in the history and development of laws implicating the 2nd amendment isn’t sufficient because I think only people with history degrees count”. but in reality he dismissed him because he had an undergraduate degree in computer science and completely failed to mention any of the other qualifications.
And considering that the gun control historian Michael Bellesiles won the very most prestigious history prize available for his completely fraudulent work, and the major researcher on the other side, Lott, was also discredited, I’m not sure I’d be using an appeal to authority of historians.
But in any case, I believe that publius is saying that historical arguments are harder to understand than legal ones. That strikes me as an assertion that is very difficult to support. People understand at least in broad terms how historians work and what their work involves. That is much less true of lawyers
The Supreme Court has made three other recent rulings and there is a clear pattern: siding with the millionaires on campaign finance, siding with Enron agasint the rate payers of Snohomish County and siding with Exxon against the fishermen. That’s your conservative Court at work.
I have maintained for some time that Roe v. Wade was a red herring, and the Democrats missed the important point entirely while questioning nominees for the Supreme Court: some persons are more equal than others, and these guys believe the giant corporations (and/or those who have become wealthy by way of giant corporations) are a lot more equal than you and I. The recent ruling on age discrimination surprised me greatly.
Which would have been a more plausible reading if he hadn’t skipped over Volokh’s more relevant experience as someone with expertise in the history of developments in Constitutional 2nd Amendment law.
This expertise of which you speak: does it involve ever publishing in respected journals edited or read by historians? Or, would it be fair to say that the only people who review Volokh’s work on this issue are lawyers or law school students who generally are not professional historians?
I think publius can assume that we already know that Volokh is an accomplished law professor. But talking about his writing articles for law reviews doesn’t seem to tell us anything about his abilities as a historian.
…but in reality he dismissed him because he had an undergraduate degree in computer science…
I don’t see how one can come to this conclusion absent an ability to read publius’ mind. While you’re in there, could you take note of his credit card number and email it to me?
And considering that the gun control historian Michael Bellesiles won the very most prestigious history prize available for his completely fraudulent work, and the major researcher on the other side, Lott, was also discredited, I’m not sure I’d be using an appeal to authority of historians.
Considering how badly Dershowitz was busted for plagiarism, I’m not sure I’d be using an appeal to authority of law professors.
Now, if you’d like to make an actual argument that historians are more unreliable than law professors or other classes of academics, I’d be very very interested in hearing it. But citing two anecdotes is not an argument; it is not even the beginning of an argument. It might qualify as an allusion to an argument that one might make, but nothing more.
I personally think that some non-trivial number of academics, including law professors, are seriously crooked in their scholarship, just like some doctors or engineers or scientists are. Universities and academic organizations often fail to adequately investigate and sanction their members, but the same can be said of medical boards.
I believe that publius is saying that historical arguments are harder to understand than legal ones.
I don’t think he’s saying that at all, but only he can tell us. I read his comment as saying that making historical assessments is a skill for which one must train and practice, and that doing so involves a set of shared techniques and norms that help comprise the profession of historians. That doesn’t mean that historical analysis is “harder” than legal analysis, but rather that it requires a different skill set. In the same manner, a neurosurgeon may be unable to do his own taxes, but that doesn’t mean he’s an idiot or that neurosurgery is easy compared to what the average tax accountant deals with; it means they’re two different fields and being good at one does not automatically require that you be good with the other.
In fact, I don’t think there is an originalist argument for incorporating the 2nd amendment. Anybody have one?
Pages 42-44 of the decision discuss the plain understanding at the time of passing the 14th Amendment that it was paramount that blacks be allowed to keep and bear arms.
no, there’s nothing inherently harder about history. what’s difficult here is the magnitude of the historical record. i have no doubt that volokh would have been a good historian. but the truth is that he has no historical training at either the undergrad or graduate level.
Does that disqualify him from talking about the 2nd Amendment? Of course not. But it does mean that we should take his historical analyses with a grain of salt when that analysis is necessarily a massive undertaking with fragmentary evidence.
the fact that the court cited him shows nothing — my point is that the Court would be better off looking at things other than papers of amateur historians.
There have probably been better times and places for dr ngo to chime in, but this particular time and place would be highly appropriate. In my humble opinion, which heeds neither law nor (outside of OW’s brief stint) history.
I’ve now read the opinion and most of the dissents. My take:
1) Publius, great post, I am going to try to remember that takedown of originalist historiography.
2) To the extent I can judge it, I think Scalia has slightly the better of the argument with Stevens as to the history, but only slightly. So I agree, it’s so close that a good Court would have gone beyond originalism. Frankly, the dueling citations simply show that people in the 18th Century didn’t use words any more precisely & consistently than they do now. Duh.
3) Scalia wants a self-defense right, not just a right to keep arms for militia use. But for a person who worships text, his purely textual reasoning is bizarre. The preamble tells us why the right was codified, but that doesn’t tell us anything about what the right is? HUH? I bet he would have given an F to one of his students who came up with that one, back when he was a professor.
4) Related point: Scalia really struggles with Miller. He ends up saying that yes, under Miller, only militia-appropriate weapons are allowed, a conclusion that totally fails to match his reasoning about the preamble. Ignoring that, he plows onward: militia weapons means any weapons that an ordinary citizen might turn up with at a mustering call, so it doesn’t include “bad” weapons like sawn-off shotguns, but does include “good” weapons like handguns (which he practically drools over). This is, bluntly, silly. The reason we don’t have semiautomatics or even Sten guns commonly in private hands is that we outlawed them, not that they’re naturally criminal weapons. Have sawn-off shotguns never been used for hunting? This whole line of reasoning is painfully result-oriented.
5) And speaking of result-oriented, I have literally never seen such a complete failure to guide lower courts, and this from a Justice who rants at every opportunity about the need for clear, bright-line rules. He expressly refuses to say whether to use strict scrutiny, rejects Breyer’s sound strict scrutiny analysis on the specious grounds that Breyer wasn’t really using strict scrutiny, and proposes no standard at all. Handguns are good because everyone likes them in New Jersey, so poor blacks in the District have to put up with them; but it’s okay to keep firearms out of the courthouse, because g-d forbid his decision should put people like him in jeopardy. Sure, whatever.
Ironically, starting with the proposition that the right is equivalent to the English Right that operated against the King but not against the Parliament, Scalia has ended with a situation in which only Justice Scalia, but not any legislature, can know which restrictions are within the scope of the right. Guns Justice Scalia likes are fine, others are not. Don’t bother with reasoning, just check his Amazon account. If only we could arrange to make his son the arbiter after his death, the reversal would be complete.
re Michael Cain’s comment at 3pm,
Michael, agreed, except that the Democrats didn’t “miss the point,” they evaded it. They are not basically a liberal or progressive party, they don’t want an anti-monopolist or pro-little-guy Court, and they don’t want to raise those issues.
Or are you saying that anyone (not just Volokh) should be able to interpret the 2A?
Yes! Just like we did before the founding; public discourse and discussion, just like here at ObWi.
There is absolutely no reason preventing us from having meaningful conversations with our fellow citizens-lawyer, laborer or even those liberal actor types-about the text of the Constitution. I think a free copy should be handed out along with the Declaration of Independence at every 4th of July parade and it both should be required reading from a young age. I read the Declaration each 4th of July to my kids. They get a little bored when I get to the grievances against King George and typically threaten a revolution of their own, but you get the point.
As an attorney, I learned early on that my clients were far more informed about their case in most areas that I was. The only “edge” I had was in the area of the “mystical properties” of “the law.” Many, many attorneys mistake their knowledge of those “mystical properties” and assume they know virtually everything. I, on the other hand, believe there is a legal and practical answer to every issue I deal with and the practical often controls. So my clients are typically more involved in the conversation because I genuinely feel they have at least as much to offer as I in getting to the proper course of action.
I feel similarly about the Constitution. We ALL have something to offer and Constitutional Law should not be reserved to the esoteric and “educated.” It takes away from its very nature as a document of the People to restrict interpretation and discussion to those elite few savvy enough to dissect with equal ease O’Connor’s tripartite “analysis,” penumbras emanating from the Bill of Rights or the Lemon v. Kurtzman test. We are dismissive of the wisdom of our common fellow citizen to our peril.
I think a free copy should be handed out along with the Declaration of Independence at every 4th of July parade and it both should be required reading from a young age.
Why? I think people should have some understanding of how their government works, but I’d worry that a program like you describe would encourage people, especially children, to treat the founding documents with excessive reverence. The constitution has some good features and bad features, but I don’t think we can be good citizens if we worshipfully assume that it is a glorious and spectacular thing. A balanced analysis includes a great deal of historical context and critiques, and I don’t see any easy way to shoehorn that into giving out copies every 4th of July and requiring that all children read them each year.
Right now, the average person can tell me a great deal about the pros and cons of their cell phone plan compared to various competitors. I don’t think they could do nearly so good a job comparing the constitution to its peer competitors, and I’m skeptical that what you propose would help.
Also, I think it might be a little unfair to expect children to read the constitution without some extremely large disclaimers lest they think it closely represents their society. For example, your fourth amendment rights don’t mean all that much thanks to the glorious war against some people who use some drugs. Civil forfeiture has turned parts of the fifth amendment into a cruel joke.
I read the Declaration each 4th of July to my kids. They get a little bored when I get to the grievances against King George and typically threaten a revolution of their own, but you get the point.
Maybe I’m heartless, but why would you do this? I mean, the DoI has no legal standing in our government, right? As far as manifestos of insurgent revolutionary groups trying to overthrow their government, it is pretty good but…
Also, do your kids use the occasion to ask you really annoying questions? Like “does that mean that people who live in DC are entitled to overthrow the government”? Or maybe “Is anyone entitled to overthrow the government if they feel sufficiently aggrieved?” or even “would our government be any less legitimate if the DoI never existed?”. I ask in all sincerity since I’m pretty sure that if I ever have kids and try to read them the DoI, they will ask me questions like that. If they don’t come up with those questions on their own, their mother will no doubt suggest them.
the fact that the court cited him shows nothing
it shows me that i can assume Scalia sounds like a right-wing blogger sometimes because his staff is picking things off of right-wing blogs.
In fact, I don’t think there is an originalist argument for incorporating the 2nd amendment. Anybody have one?
As noted, one of the express purposes of the 14th Amendment was to allow former slaves to bear arms and protect themselves against violence from the white majority. Malcolm X was not so radical; his views were functionally indistinguishable from the views of the Republicans of the 1860s and 70s: “Racists know only one language, and it is doing the black man in this country an injustice to expect him to talk the language of peace to people who don’t know peaceful language. In order to get any kind of point across our people must speak whatever language the racist speaks. The government can’t protect us. The government has not protected us. It is time for us to do whatever is necessary by any means necessary to protect ourselves.” (http://www.law.harvard.edu/students/orgs/forum/X64.html)
The fact that the 14th amendment was passed in part based on the view that the 2d amendment protected an individual right of self defense, is, of course, relevant to what it means. It is also relevant tha tthe 2d was understood as a personal right by individuals on both sides of the Civil War, as evidenced by one of the rationales for Dred Scott.
Now, of course, the actual history is far more complicated than the simplistic historical analyses provided in either Scalia’s or Stevens’ opinions. But that’s understandable. A historian is not called to reach a conclusion regarding what the law means. A judge is. And history, even simplified, can be a useful guide.
Turbulence:
Now your just being turbulent. But, yes, my kids ask me questions about the DoI and no, I don’t find them annoying. The questions you wrote aren’t annoying.
And if you knew how many law students take conlaw without having previously read ANY part of either document you might think differently. And how little the actual text comes up in class. Talk about taking your eye off the ball. I always thought each provision should be written on the board while we discussed a case because a casual listener would otherwise have no idea what the heck we were talking about.
And I said young age. Not necessarily little kids. But at least by junior high.
And just to annoy parents, I’m printing off a bunch of copies and handing it out this 4th of July. So there.
The DoI is vital, Turbulence, to understand context and background of the Constitution — particularly the Bill of Rights. Unlike James Dean, the founders were rebelling for very specific reasons. The DoI provides those reasons and helps clarify what makes a government legitimate. In a country born of revolution, based for the first time exclusively on the natural rights of the people rather than the divine right of kings, the right (and threat) of another revolt always remains.
Aside from the DoI, the Articles of Confederation and, to a lesser extent, the NW Ordinance are also valuable to understanding the Constitution (IMHO). It’s also valuable to look at the Confederate Constitution: the differences are illuminating (at least as of the 1860s).
The 13th, 14th, and 15th Amendment are also crucial to examine. Those Amendments were intended to be, and are, radical.
The DoI is vital, Turbulence, to understand context and background of the Constitution — particularly the Bill of Rights. Unlike James Dean, the founders were rebelling for very specific reasons. The DoI provides those reasons and helps clarify what makes a government legitimate.
If only Dick Cheney, David Addington, and John Yoo had read the DoI.
The DoI is vital, Turbulence, to understand context and background of the Constitution — particularly the Bill of Rights.
I agree, but then again it is hardly sufficient: there are lots of bits of context and background needed to understand the constitution, and it seems like regular mandated readings of the DoI are not a particularly good way to engender that context and background. That material could more profitably be provided by supplementary readings that summarized the DoI along with the rest of the relevant history. Interested readers can always read the DoI on their own time; it is not like we’re going to ban the document.
Unlike James Dean, the founders were rebelling for very specific reasons. The DoI provides those reasons and helps clarify what makes a government legitimate.
It is a rare movement indeed that honestly explains its motives in in its manifesto. Oftentimes, important motives are glossed over because they are not universally agreed to or because they make the insurgents sound bad. That means that such documents must be read carefully with a critical eye, and I don’t think mandating that young students read the DoI annually is conducive to such readings.
In a country born of revolution, based for the first time exclusively on the natural rights of the people rather than the divine right of kings, the right (and threat) of another revolt always remains.
I don’t know how to make sense of this statement in practical terms. If you say you have a right and I disagree, which of us is correct? You may declare that you have all manner of rights, but what matters is your practical ability to ensure their free exercise. Oftentimes, a national consensus suffices, but in some cases force of arms will do just as well. In that case, the “right” to rebel is irrelevant: what matters is your ability to execute a rebellion without getting killed.
Consequently, if you have the ability to overthrow the government, you may do so regardless of what rights you think you have. No matter what, the government will declare you to be a traitor and a criminal with no such rights. Also, this truism remains true in all countries, not just those that are “born of revolution” or “based exclusively on the rights of [some small fraction of] the people”.
In a practical sense, I don’t think the current US government is under any threat at all. The issue isn’t one of rights but of capabilities: there does not seem to be a way to overthrow the government by force. That doesn’t bother me too much, but it seems ridiculous to pretend that the US government avoids tyranny lest it be overthrown by an armed citizenry.
Aside from the DoI, the Articles of Confederation and, to a lesser extent, the NW Ordinance are also valuable to understanding the Constitution (IMHO). It’s also valuable to look at the Confederate Constitution: the differences are illuminating (at least as of the 1860s).
Indeed, those all sound like worthy subjects of study, so why don’t we mandate that students must read all of them every year? Might I suggest that while reading assorted historical documents can be beneficial, imposing mandates that particular documents be read by particular people at particular times every year is far less useful than requiring that students be able to demonstrate certain knowledge and allowing the educational market to impose that knowledge in whatever ways it sees fit?
Oddly enough, I’m going to have to come down on the side of the conservatives here, for the most part. It seems inarguable that prior to the 20th century, the right to bear arms was simply understood on its face to mean anyone could have a gun and the government couldn’t say they can’t. It’s practically a fixed piece in America’s iconic freedoms, and that didn’t begin and won’t end with conservatism or originalism.
Moreover, whatever your qualifications as a teacher and scholar of law, I think your arguments on this point go too far. I’m pretty sure I get the point you’re driving at, but the arguments you’re making don’t support it for the most part. Particularly baffling is your dismissal of the “amateur history” work the Justices are doing. It sounds as if you’re issuing a wholesale condemnation of using history–or presumably any other complex subject in which the Justices are not experts–in adjudicating cases. That’s how I read it, and that seems to be how most of the other responses here read it as well. The problem is that you’re wrong on this in a way so obvious I can’t fathom how someone with your intellect and education missed it. Are we to now truly expect our judges to be cross-trained experts in medicine, IT, biology, nuclear physics, or any other complex field of expertise in order to make a competent ruling? Are we to disallow any reliance on historical facts when ruling on a case simply because the Justices do not have a history degree? Absurd.
Now, with that said, I do agree on the core point–originalism is bunk. Results-oriented jurisprudence whose philosophical foundation rests on a fallacy: that judges are not only capable of entirely separating their legal reasoning from their moral and political beliefs, but that they are expected to do so while interpreting the original meaning or intent of a 200-year-old document and applying it to a contemporary case.
I will say this without reservation: it is fundamentally impossible for a sane human being to completely compartmentalize themselves like that. The way a person thinks and reasons their way through problems is inextricably intertwined with their worldview. While most people are capable of taking a step back and viewing a problem with increased objectivity, and doing so is an essential part of fairly judging a case, the fantasy here is that it’s possible to entirely divorce one’s first principles and thinking patterns from the actual act of thinking through a complex issue that requires interpretation.
The big lie that conservatives have perpetrated in this regard for years is that their originalists are ruling based on what the Constitution actually says, while those liberal judicial activists are just making stuff up to fit their policies. The truth is that when it comes to places where the text is ambiguous, both schools of thought interpret the text in a way that comports with their worldview and allow political considerations to filter their decisions. The difference is that originalists don’t admit it, and cloak their creative interpretations in a veneer of legitimacy crafted purely from an appeal to authority fallacy.
The fact that the 14th amendment was passed in part based on the view that the 2d amendment protected an individual right of self defense, is, of course, relevant to what it means. It is also relevant tha tthe 2d was understood as a personal right by individuals on both sides of the Civil War, as evidenced by one of the rationales for Dred Scott.
In that case, I want to reiterate what was asked upthread: if one is employing originalist analysis, who cares what the interpretation of the Second Amendment was in the 19th century? It may be germane to the Fourteenth Amendment, but surely not the Second.
“In that case, I want to reiterate what was asked upthread: if one is employing originalist analysis, who cares what the interpretation of the Second Amendment was in the 19th century? It may be germane to the Fourteenth Amendment, but surely not the Second.”
Because it is evidence of the unbroken-until-the-20th century understanding that the right to bear arms was an indvidual right.
Because it is evidence of the unbroken-until-the-20th century understanding that the right to bear arms was an indvidual right.
Perhaps, but how is that originalist?
Because it is evidence of the unbroken-until-the-20th century understanding that the right to bear arms was an indvidual right.
If there is sufficient evidence to demonstrate the understanding of the second amendment at the time it was ratified, then what possible benefit could be gained by analyzing the understanding of the amendment decades later? If that evidence is insufficient, why should we believe that data from decades later tells us anything about public understanding at the time of ratification?
“If that evidence is insufficient, why should we believe that data from decades later tells us anything about public understanding at the time of ratification?”
Because social changes of that magnitude normally don’t occur without touching the historical record somewhere. So if there is good evidence of a particular meaning in the 1800s, and there is no evidence of a big change, there can be a strong presumption that such understanding is similar to the original understanding.
Alternatively, we could simply assume that if there is insufficient historical evidence about public understanding at the time of ratification, we cannot factor public understanding at the time of ratification into our analysis. The alternative of substituting public understanding decades later and declaring by fiat that no significant changes in public understanding occurred during the intervening decades seems…unsound.
The 14th Amendment crowd intent matters because the 14th amendment changed the meaning and application of the Bill of Rights. If the intent of the 14th amendment was to provide 2nd amendment individual rights and apply that to the states, it really would not matter what the original intent was: the 14th Amendment changes it.
It seems to me that if you are interested in what it means, the generation that last amended the Constitution in a related way has a broad impact in the current meaning of any portion of the Constitution.
“The alternative of substituting public understanding decades later and declaring by fiat that no significant changes in public understanding occurred during the intervening decades seems…unsound.”
To you. To laymen and historians it seems normal.
To you.
Yes, yes it does, which is why I wrote it.
To laymen and historians it seems normal.
Perhaps. I was unaware that all, or even many laymen or historians had chosen you as their representative and empowered you to speak on their behalf. Were you able to read their minds as successfully as you did publius’?
Perhaps you could provide some evidence for the belief that “laymen and historians” hold the beliefs you ascribe to them? Something more than “because Sebastian says so”.
It’s interesting if you look at the timing of the Constitutional Amendments. Nothing really changed until after the Civil War, when Amendments were made to stick it to the South.
Then nothing changed until we were a full generation into the age of oil. The surpluses generated by the internal combustion engine allowed for feel good Amendments. These feel good Amendments have driven social spending from 0% to 70% of the federal budget, rising rapidly and unsustainably.
This is superimposed against the passing of peak oil and an absence of national leadership. Which is why we should feel grateful for the 2nd Amendment and Justice Scalia’s work.
Bob: Nothing really changed until after the Civil War, when Amendments were made to stick it to the South.
*sneers*
“I suspect a strong argument can be made that the legislature and States did not ratify the 14th amendment with the intent of arming blacks.”
The degree of abysmal ignorance concerning the adoption of the 14th amendment necessary to assert this is awe inspiring. Simply awe inspiring. You’d have to actively AVOID learning anything about the 14th amendment’s history to come to this conclusion. I mean it, this is deep into “Flunked high school civics” territory.
For remedial reading I suggest Halbrooks’s Freedmen, the Fourteenth, and the right to bear arms. I’m not going to loan you my copy, but you ought to be able to get one by inter-library loan if your local branch doesn’t have it.
Brett, if you could make your point without wallowing in ad homs, it would be a nice change of pace. In fact, your first paragraph adds absolutely nothing to this discussion.
It’s an observation: I don’t see how anyone gets through high school history and civics without at least a minimal knowledge about the relationship between the 14th amendment and the desire to arm blacks against the Klan.
There are some very questionable aspects about how the 14th was ratified, but there’s not much question that the people who ratified it knew what it was for. So did the Court that saw to it that it didn’t accomplish that aim…
It seems inarguable that prior to the 20th century, the right to bear arms was simply understood on its face to mean anyone could have a gun and the government couldn’t say they can’t
Well, I’m arguing against that.
I’m arguing that it was taken to mean that every *white male* could have a gun. It wasn’t usually articulated so clearly, because it was generally understood that everyone who was anyone was a white male. For blacks and women to be generally armed was literally unthinkable.
The ostensible purpose of the RTBA, for the Founders down the line to Brett, is for self-defense and for a check on government power — and they are not distinct functions, one is thought to flow out of the other. Free men who can defend themselves and their property (including their women) will naturally resist and if necessary overthrow tyranny — that’s the theory, that’s what the Founders thought they had seen in the Revolution.
But as Bruce Baugh pointed out, the RTBA is an empirical failure as a check on tyranny. *It doesn’t work*. I’m arguing that it also doesn’t work for personal security: men with guns are not safer, nor are “their” women.
It is possible that if the RTBA were restricted to women, it *would* make people — regardless of chromosome count — safer. But that’s even more implausible than Golda Meier’s suggestion that the solution for a rape epidemic should be a curfew for men, not for women..
It’s an observation: I don’t see how anyone gets through high school history and civics without at least a minimal knowledge about the relationship between the 14th amendment and the desire to arm blacks against the Klan.
Brett, it may help to consider that:
1. there are some people here who are not Americans or who did not attend a civics class in an American school
2. even people who did may have done so a very long time ago (or a short time ago) and may not recall every aspect of those classes
3. in many places, civic and American history classes are not particularly good, and may not have covered such details
4. even if it is legitimate to expect every human being on Earth to know all about the 14th amendment in practice, insulting people and calling them ignorant is unlikely to further the conversation or convince them of anything; this is one of those ways where you can win the battle but lose the war
You’ve obviously spent a lot of time reading and thinking about these issues and I commend you for that. Not everyone else has, and life would be easier for everyone if you recognized that. At this point in my life, I have trouble for faulting people for assuming that the US government might never have been interested in arming or protecting African Americans, but YMMV.
It’s an observation:
If you are this honest concerning your own rhetoric, it’s no wonder you think you need a gun…
To be fair to Brett, assuming he is right, I suppose I should be aware of this clear delineation of the history.
I am after all, a graduate of public education, and an attorney, and a proponent of the 2nd amendment.
I don’t recall any of my classes talking about this (or the second amendment at all).
Since I am interested in the 2nd amendment, (and in fact wrote a paper about the 2nd amendment as a law student that was relatively pro) I don’t think it is something that is clearly obvious to everyone.
But if it is, than I am sorry for wasting everyone’s time, because if Brett is right that the 14th Amendment was clearly pro individual rights and abrogating states rights specific to the 2nd aendment as he proclaims, there really is not any issue here.
The enactors intent of the 14th would trump the enactors of the 2nd. We have no reason to look at the Founders, but simply at the signators of the 14th, because it is their understanding that matters.
That is the beauty of amendment: We don’t care what was meant before: we ony care about what was meant by the last amender.
Sebastian:
That is a fundamentally conservative role for the court (essentially the legislature makes changes, the administration implements them, and the Supreme Court keeps them from making changes that are beyond the Constitution).
Under your reasoning, the court would not be empowered to rule on new matters, such as my example that electronic eavesdropping was an unconstitutional “search,” and the constitutional law could progress to that point only by amendment. While that is one possible view on the role of courts, their power was not viewed as that limited at the time of the adoption of the constitution nor in the history of the American version of the common law. And state supreme courts have been evolving the common law based on their views of proper policy for generations without a claim that doing so was illegitimate. The entire body of law regarding product liability is 100% the creation of judges, as are countless other areas of humdrum civil law. I assume you despise that also with the same vigor that you condemn “activist” US Supreme Court judges who are doing the same basic thing within the confines of the language of the document — a document written sometimes with vague generalities and with awareness of the long traditions of judges fleshing it out based on the general concepts expressed. What you view as illegitimate was something that the framers expected to happen since that had been their life experience with the judiciary.
What would Justice Marshall have done in Marbury v. Madison hemmed in with your view — wait for an amendment to give the Court the express power to declare laws unconstitutional?
In other words, your view on the alleged proper role of courts has not existed at any point in time in the history of the courts. For hundreds of years now, we have got by just fine with a more expansive view of the proper role of judicial interpretation.
liberal japonicus: … it’s no wonder you think you need a gun…
…wins the thread.
“Under your reasoning, the court would not be empowered to rule on new matters, such as my example that electronic eavesdropping was an unconstitutional “search,” and the constitutional law could progress to that point only by amendment.”
No that isn’t correct, and we’ve had that discussion at least six or seven times around here so please just look around.
I apologize. That was unneeded. It has been discussed many times, but you probably weren’t there for it. Hilzoy’s example is outlawing poison. If you don’t find out that ‘X’ is a poison until later, and everyone thought it wasn’t at the time of passage of the law, X is still outlawed when you find out it is a poison.
“The entire body of law regarding product liability is 100% the creation of judges, as are countless other areas of humdrum civil law.”
Except they don’t get to overrule legislatures to do that, which makes it fundamentally very different.
“What you view as illegitimate was something that the framers expected to happen since that had been their life experience with the judiciary.”
You are making a fundamental mistake about the common law as understood at the time. Common law was always framed as a consolidation of old traditions and an extension of natural law. Common law was largely an attempt to hem in judges by forcing them to follow precedent. I’m relatively certain that you don’t want to return to the idea of natural God-given law.
Furthermore this turns the idea of having a Constitution on its head. Judges are supposed to be ruled by the Constitution, not the reverse.
“I am after all, a graduate of public education, and an attorney, and a proponent of the 2nd amendment.
I don’t recall any of my classes talking about this (or the second amendment at all).”
I suppose it’s at least possible that I had a really weird and obsessed high school civics teacher, who went into unusual detail about Reconstruction. I suppose I shouldn’t assume my own life experience is universal.
Ok, sorry, you may have come by the ignorance honestly. In which case you might actually be willing to read that book. It’s pretty good…
“Hilzoy’s example is outlawing poison. If you don’t find out that ‘X’ is a poison until later, and everyone thought it wasn’t at the time of passage of the law, X is still outlawed when you find out it is a poison.”
Yeah, but if you outlaw Sucralose on the mistaken belief that it’s carcinogenic, if it’s later proven that it isn’t, that doesn’t repeal the law. We don’t deduce from the 2nd amendment that Americans have a right to own arms which is not to be infringed. It comes right out and says it.
“Because Sucralose is carcinogenic, it shall be banned.” and “IF Sucralose is carcinogenic, it shall be banned.” are two entirely distinct directives, with quite different consequences should you stumble across information suggesting that Sucralose is, in fact, not a carcinogen. The 2nd amendment follows the former model, not the latter.
Sebastian: Common law was largely an attempt to hem in judges
Bwah! Common law is law that is created by judges. Good grief, Sebastian, I know that the right wing don’t like and don’t trust judges/the judiciary, mainly (as far as I can see) because judges have an independent system of ethics to follow that transcends the political loyalties that right-wingers hold paramount, but this is an absurd claim.
Brett: We don’t deduce from the 2nd amendment that Americans have a right to own arms which is not to be infringed. It comes right out and says it.in a well-regulated militia. At no point in the 2nd Amendment does it claim that Americans have a right to personally own arms. That’s your deduction from text: “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.”
Curses! Italics begone!
“No, Brett: the Second Amendment says that Americans have a right to keep and to bear arms in a well-regulated militia.”
No, it simply doesn’t. The necessity of a well regulated militia is given as the reason that the right of the people to keep and bear arms shall not be infringed. But if you take the trouble to read the historical sources and contemporary commentary on the amendment, it’s quite clear the reasoning was thus: If the people have the right to own and practice with suitable weapons, a pool of armed citizens will exist from which a militia may be raised, even if the government discontinues the militia system.
The founders were concerned with the possibility that a later government might decide to do without the militia. After all, just because a militia is necessary for a free state to be secure, doesn’t mean that the government will always WANT our freedom to be secure!
Because of this concern, they wanted to make sure that under no pretext could the government disarm the population from which a militia was to be raised.
If the right to keep and bear arms were limited to the militia, then the amendment would accomplish nothing, because as soon as the government decided not to have a militia, the right would be possessed by nobody. It would turn the amendment into a declaration that everyone the government WANTED to be armed had a right to be armed.
That’s nonsensical, rights are by definition declarations that in some context the government does NOT get it’s way. If you interpret them in such a way that they don’t even potentially obstruct the government from getting it’s way about something, you’re interpreting them wrong.
I can understand why people who don’t like this right want it to be interpreted in such a way as to render it completely without effect. But that doesn’t make doing that reasonable.
The degree of abysmal ignorance concerning the adoption of the 14th amendment necessary to assert this is awe inspiring. Simply awe inspiring. You’d have to actively AVOID learning anything about the 14th amendment’s history to come to this conclusion. I mean it, this is deep into “Flunked high school civics” territory.
I took four years of history in high school, including electives called American Government and 20th Century America, for a total of six HS history classes. I received A’s in all of those classes.
I also took several college history courses including one on the history of blacks in America and one on Constitutional law and history. I got A’s in those as well.
I can assure you that the topic, “The 14th Amendment was intended — even in part — to arm blacks against the Klan” was never even suggested. Not once.
I suppose it’s at least possible that I had a really weird and obsessed high school civics teacher, who went into unusual detail about Reconstruction. I suppose I shouldn’t assume my own life experience is universal.
Gawrsh, Mickey, do ya think?
Brett: If the people have the right to own and practice with suitable weapons, a pool of armed citizens will exist from which a militia may be raised, even if the government discontinues the militia system.
Ah, we’re back to that ahistorical fantasy of yours now, are we? You’re thinking of the KKK when you refer to the “pool of armed citizens” from which a “non-governmental militia” – that is, a group of white men with guns – could be raised. Useful, wasn’t it – if you’re a KKK supporter.
I point out that the 14th amendment was supposed to safeguard the right, among others, of the Freemen to be armed, so they could defend themselves against the Klan, and this leads you to believe that I’m a KKK supporter?
I’d call this psychotic, except there isn’t even that much internal logic to it.
As I wake this morning, I wonder if the discussion of common law hasn’t muddled things quite a bit. Constitutional law is a type of statutory interpretation, not the kind of found, judge-made common law that people above seem to be talking about (and which has its roots firmly in natural law theory).
Brett:
I believe Jes’ point is that *in practice* the KKK was how that “pool of armed citizens” idea worked out. Pools of armed citizens turn out to be no good at all for resisting actual government oppression, but they can be quite effective for local ethnic cleansing.
I also don’t see an originalist argument for the 14th amendment to mean the 2nd amendment is incorporated against the States, even assuming the intent to arm blacks (which if true is the worst construction of an amendment possible, since it says nothing of the sort).
There is certainly not a “clear meaning of the words” argument for it. I think a clear meaning of the words is that whatever the rules, they apply to all men regardless of color. I think it is hard to argue that the 14th Amendment clearly requires incorporating the bill of rights against the states.
Doctor Science is correct, Brett.
But you’re right to suppose that given your much-vaunted historical knowledge, I’d be quite amazed that you didn’t know the KKK is the “pool of armed Freemen” whose existence you were lauding, and who were making claims they were armed to protect “traditional freedoms”. If you say you’re ignorant of this, of course I believe you: but it does suggest your historical knowledge is shaky to non-existent.
jrudkis: I think a clear meaning of the words is that whatever the rules, they apply to all men regardless of color.
That’s certainly not an originalist interpretation. Nor an interpretation that could be accepted in the 21st century.
“I also don’t see an originalist argument for the 14th amendment to mean the 2nd amendment is incorporated against the States, even assuming the intent to arm blacks (which if true is the worst construction of an amendment possible, since it says nothing of the sort).”
Not really, the right to bear arms is almost certainly one of the privileges and immunities of citizenship. But the Supreme Court’s evisceration of that clause is a whole ‘nother story.
Sebastian,
I don’t see a Right as either a privilege or immunity. Both are things that can be given and taken away, whereas the whole point of Rights it that they are preexisting and ongoing.
And certainly if the intent was to make the bill of rights apply to all levels of government, it would be much clearer to say exactly that.
And I truly find it unlikely that the States would sign up to give away such sweeping power knowingly.
Then you’ve got a lot of state constitutions to explain, Jr, since most of them include some form of RKBA clause.
Although it should be noted that there’s not a lot to explain in the case of Southern states ratifying the Civil war amendments; That was about as democratic as an election in Zimbabwe. It’s amazing what occupying armies can get out of legislatures.
Brett,
Exactly, the States had their own bill of rights precisely because the Federal one did not apply to them, and they never intended it to.
Until they ratified the 14th amendment…
Which is read much more sweepingly than the states intended. My state, for example, protects gun rights, but we have no interest in giving Rhode Island and California a vote on whether we can change our mind. In much the same way I would not want to cede control over free speech to the UN even if the UN and the USA both want free speech, because I see no value in giving that control to a larger organization.
So, I am all in favor of the 14th, and incorporation, but I don’t think there is an originalist argument that based on this amendment, the Federal 2nd amendment applies to the states.
There is an argument, but it is one that relies on the tortured jurisprudence that led us to today.
So, essentially, I agree with the majority decision, but I don’t think we will find the same majority decide that the 14th amendment incorporates it.
It’s a good thing there was a gun-control ruling this week. Everybody knows how to act in response to that: some serve up their fantasies, others offer information that will be ignored, and it all goes merrily along. It’s cerrtainly less effort than, say, having war supporters confront just how badly their chosen crusade is going, dealing with the reality that the Republican candidate this time actually is less qualified to be president than Bush in key ways, or yet another confirmation that occupation brutality creates terrorists.
“My state, for example, protects gun rights, but we have no interest in giving Rhode Island and California a vote on whether we can change our mind.”
I think you’ve got this backwards: Just as no man supports a law against rape or murder, thinking, “I might some time want to rape or murder, and support this law so that I might be thwarted.”, the states did not ratify the 14th amendment to prevent themselves from violating basic liberties.
They did it to bar each other from violating them. Just as man enact laws to control each other, none thinking they themselves might do the evil they propose to ban.
And, yes, there has been some seriously tortured jurisprudence concerning the 14th amendment, starting with the Reconstruction era Court’s deliberate decision to “interpret” the 14th amendment so as to deny it any effect. And the Court’s later, awkward and partial undoing of that bad faith, warped by the need to not admit that they got it wrong in the beginning.
Incorporation of the 2nd amendment would be another step towards making of the 14th amendment what it was always meant to be: A guarantee that the state governments could not violate the rights the federal government had already been bound to respect.
Brett,
That might make sense if there was a Federal Murder Statute. There is not, because the states want that authority.
The States are perfectly capable of protecting their citizens, but they were not necessarily capable of treating citizens equally. The 14th Amendment mandates that citizens are treated equally,
and in the context of guns it means that if a white guy can own a handgun, so can a black guy. It does not mandate that the state allow handguns.
In the unfortunate absence of dr ngo (as noted earlier), here are my thoughts as one of the other historians who read the blog regularly (with the proviso that I’m not American and don’t study US history). If you come across a historian who tells you ‘people in the eighteenth century thought X’ then they’re either a) simplifying things greatly for a general audience, b) using this as a professional shorthand or c) being ridiculous. Thinking a bit about how we know what we know about history will explain why.
Most basically, what we know about what people thought in the past is from the written texts that survive. So we don’t know about the opinions of people who couldn’t write or who didn’t choose to write things down that we want to know or whose writings weren’t regarded as useful enough to get kept rather than thrown away/burnt etc. Right away, that rules out knowing what a vast percentage of people in any historical period actually thought. (Oh, of course, we can rely on what other people say they thought, but that’s hearsay and the lawyers wouldn’t like it).
So you are already down to the limited pool of people who write things down that we want to know. Then you have all the problems of the gaps between what they think and what we read. In most historical periods (and often even today), people have been worried that they might get into trouble for writing down things that those in authority or those around them might disapprove of. So there’s a lot of self-censorship of unpopular opinions.
But even suppose you have a situation where you are able to write freely on a topic, there’s still a problem. When I write a blog post, there’s a gap between what I think and what I write down because it’s very hard for anyone to articulate precisely what they mean. And when you read my post, you may have a different understanding of some key words (do I understand by ‘human’ exactly the same class of beings as you do, what do I mean by ‘democracy’, etc, etc). This difficulty is increased if we’re communicating talking within different cultural frameworks (e.g. US understanding of ‘liberalism’ versus British). And so, whoever you are, you are likely to end with an imperfect understanding of what I write, which in turn is an imperfect representation of what I mean. The misunderstandings just mount up cumulatively. That’s one of the sensible reasons that ‘mind reading’ is discouraged on Obsidian Wings (though it inevitably happens).
Now on a blog like this, we can clarify with follow-ups, and if a point is really important, people could give very precise definitions of exactly what they do mean. We can’t have that kind of dialogue with people in the past. Without that it is far harder to be sure what people from a different cultural background and who used a subtly different language (because meanings always evolve over time) really meant, even when they did write something down.
So when a historian says ‘People in the eighteenth century (or the nineteenth or the Middle Ages) thought X’, the most that they can sensibly claim is ‘the majority of the people whose writings we have access to say things that imply that they thought X.’ Now, for the purposes of historians this is all fine and dandy: we don’t expect to get the absolute truth, even though most of strongly believe that there are ideas about the past that are nearer the truth than others (and some that are definitely wrong).
But what if you gave a historian a time-travel machine and some truth serum and say ‘go back into the past, pick one person at random and see if they really believe X, which you think they did. And if they don’t, you will suffer some severe penalty’? I wouldn’t bet my life or my liberty on being 100% right about the Middle Ages (my period) and I suspect most historians would feel the same way even about much better documented periods. So as a historian, it makes me very uneasy to see the originalists being prepared to bet other people’s life and liberty that they are right about the eighteenth century: it seems to me to be both ignorant and arrogant. (It’s also very contrary to English legal tradition, incidentally, which has only relatively recently allowed the official judicial consideration of parliamentary debates as an aid to construing the meaning of statutes. See details here from somebody better informed legally than me).
Magistra,
Certainty is always hard even in hard science, but I think you are in the business of saying this is the most likely “belief, thought, interest” of the period.
If you can’t put your name next to “most likely,” then what is the purpose?
I don’t think Constitutional law is held to a criminal standard, or “Beyond a Reasonable Doubt.” It may be more than more likely than not, but not much more.
Sebastian:
As I wake this morning, I wonder if the discussion of common law hasn’t muddled things quite a bit. Constitutional law is a type of statutory interpretation, not the kind of found, judge-made common law that people above seem to be talking about…
True, but only in a limited sense. That is because much of the language of the Constitution consists of vague generalities, and modern rules of statutory construction allow judges to fashion a form of common law around such statutes. And I think the historical arguments that the framers understood that judge’s would act in that manner with regard to the text is a well-founded one. So the analogy to common law jurisprudence is far more apt than you acknowledge.
An excellent example of this is the Sherman Anti-Trust Act, which key provision in Section 1 consists of the boilerplate phrase Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. The courts have spent decades creating a common law as to what that means. Yes, they are limited by the text, but the text itself provides so many possibilities, that an independent judge fashioned logic is needed to apply the statute.
The same holds true for many parts of the Constitution, and it therefore makes perfect sense to talk about what that logic should be. Pretending that such a process is illegitimate makes no sense.
Put another way, the judicial function inherent in the common law is an inherent judicial function, and an entirely appropriate one to utilize when the statute or constitutional provision, because of vagueness or other uncertainties, does not provide a clear answer to the question.
Sebastian:
As I wake this morning, I wonder if the discussion of common law hasn’t muddled things quite a bit. Constitutional law is a type of statutory interpretation, not the kind of found, judge-made common law that people above seem to be talking about…
True, but only in a limited sense. That is because much of the language of the Constitution consists of vague generalities, and modern rules of statutory construction allow judges to fashion a form of common law around such statutes. And I think the historical arguments that the framers understood that judge’s would act in that manner with regard to the text is a well-founded one. So the analogy to common law jurisprudence is far more apt than you acknowledge.
An excellent example of this is the Sherman Anti-Trust Act, which key provision in Section 1 consists of the boilerplate phrase Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. The courts have spent decades creating a common law as to what that means. Yes, they are limited by the text, but the text itself provides so many possibilities, that an independent judge fashioned logic is needed to apply the statute.
The same holds true for many parts of the Constitution, and it therefore makes perfect sense to talk about what that logic should be. Pretending that such a process is illegitimate makes no sense.
Put another way, the judicial function inherent in the common law is an inherent judicial function, and an entirely appropriate one to utilize when the statute or constitutional provision, because of vagueness or other uncertainties, does not provide a clear answer to the question.
Sherman Anti-Trust Act, which provides as follows as its key provision in section 1: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.
This provision is so vague that a vast body of federal common law has developed to articulate its meaning. Although tied to the statute, most of the logic is judge-created in a manner substantially identical to the judicial thinking for the common law.
The same holds true for the general propositions of the Constitution. And we should be talking explicitly about the type of logic used to flesh out the bare text when the words and history do not give us a clear answer.
Weird how the post got cut off.
dmbeaster,
Sure, the statute created the crime, and than the courts determine what that means.
The Courts did not create the crime.
Common law creates a reasonable assurance that decisions that follow make sense and create stability. If the legislature disapproves of the status quo, it is relatively easy to adjust. Common Law does not make sense as a means to create Rights that the legislature can not change nearly as easily, and requires super majorities to enact.
jrudkis:
No one is talking about creating rights. The question is the appropriate scope of the judicial function when reviewing the general pronouncements of the Constitution, when neither the language nor history gives clear guidance on how to resolve an issue.
As for creating “rights,” how about these, none of which are listed in the Constitution:
1. The right to have children
2. The right to travel
3. The right to control your own medical care
etc .
Go read your Supreme Court on what they have done with this, and tell me how much you hate how they “create” rights.
To follow up on Bruce’s 3:37, the rights I take seriously are ones that should be arguably extended to all people. Free speech, I got no problem suggesting that people in other countries should have that right. same for unreasonable search and seizures. Right to get a handgun, not really.
dmbeaster,
Ummm, what?
It seems to me you were equating the judicial function of applying law and creating common law, with something, that was not quite clear.
My response was simply that yes, the court should create common law in applying law, but should not create concepts that the legislature cannot overturn sans amendment.
Since my absence has been noted, let me apologize and say that I have personal circumstances that circumscribe my life a bit right now.
FWIW, however, I don’t think I would have had a lot to contribute to this particular debate except the generalization advanced by others – most recently and articulately by “magistra” – that it is dangerous indeed to rest an interpretation of our fundamental rights (or not) on *any* assertion as to what “history” proves. And that’s even assuming that the history in question is studied by those skilled in the arts thereof (whether or not credentialed academically) AND without prior bias as to the desired outcome. Which – as any schoolboy knows – is not necessarily the case here.
Speaking of what “any schoolboy knows,” my AB, BA (Hons), MA, and PhD in history did not, to the best of my recollection, ever expose me to the “KKK” interpretation of reconstruction and the 14th amendment put forward by Brett as primordial and ineluctable, but I am inclined to give myself – and others – a pass on ignorance of this. I believe Brett now realizes he was the beneficiary of a particularly intense education on this point/period, which not everyone (not most of us, I suspect) received, so no more need be said.
As for Sebastian’s view that laymen “and historians” will assume continuity in views over generations absent any evidence to the contrary, I would demur somewhat. If we (historians) ever use evidence half a century to a century later/earlier than the events we are analyzing – e.g., mid-late 19th century arguments for late 18th century views – we do so with GREAT trepidation, and the apprehension that some reviewer or critic may land upon us with great force from a great height. It’s very shaky indeed.
Finally, if it’s not clear already, I’ve avoided the “factual” heart of the topic itself for the simple reason that I have no particular expertise in American constitutional history. I have skills; if I devoted myself to research on and analysis of this topic, I’m sure I could reach conclusions at least as solid as those of, say, Mr. Volokh. But I haven’t done so, and don’t plan to do so, so SCOTUS will have to muddle on without the benefit of my wisdom.
“I have skills; if I devoted myself to research on and analysis of this topic, I’m sure I could reach conclusions at least as solid as those of, say, Mr. Volokh. But I haven’t done so, and don’t plan to do so, so SCOTUS will have to muddle on without the benefit of my wisdom.”
But until you do, it doesn’t make sense to trivialize the work done by Mr. Volokh unless you can point out specific flaws in his methodology which don’t exist in normal history work. Something which publius didn’t even attempt to do. He simply assumed that Volokh couldn’t possibly have done good history work and alluded to his computer science background (and for what its worth hasn’t given the impression that he even scanned such work in a trivial fashion). The idea that people without history degrees are amateurs that couldn’t do productive history research is IMO wrong.
Obviously, there will be times when history doesn’t answer the question, and some days ago, I quoted the following from Jackson’s concurrence in Youngstown Sheet & Tube:
That said, you can’t do away with looking at the history to see what it does tell us.
it doesn’t make sense to trivialize the work done by Mr. Volokh unless you can point out specific flaws in his methodology which don’t exist in normal history work.
The difficulty is that a substantial problem with many historical works (including a number of those by professional historians) is that the author has cherry-picked the sources to support his/her argument. And it’s difficult for anyone but an expert in the field to pick up what *hasn’t* been mentioned in a book/article etc. If I cite twenty quotes in which someone in the period says X, even if my quotes are entirely accurate, that doesn’t tell you if they are typical, or whether you couldn’t equally find 50 quotes that say not-X. To be sure of that you’d either need the time and patience to check the archives yourself or you’d need to be very knowledgable in the field already.
The idea that people without history degrees are amateurs that couldn’t do productive history research is IMO wrong.
I wouldn’t disagree with you. But when amateurs do useful work it’s normally in a fairly narrow, specialist field where they can more easily master the sources (and read most of what other people have already written) on a particular topic. So there are quite a lot of amateur historians doing useful work on local history, certain aspects of military history, the history of particular industries etc. But the number of them who do useful work on broad topics, work that professional historians think are significant enough to read, is small. And the history of attitudes in any period is invariably a very big topic, because so many sources are potentially relevant. I am sceptical in general of whether an amateur historian, (who also hasn’t had professional training in trying to be aware of their own biases and the biases in the sources), could produce reliable work on the history of attitudes to guns.
But I’m also aware that I am not an expert in the field and so not qualified to make a judgement on Volokh’s specific work. The question is: what do historians who are specialists in the field think? And if they’re not linking to or citing his work, I think that’s a pertinent comment on what they make of it.
And this from Jackson’s final footnote:
Cherrypicked? Most likely. I’m sure one can find various opinions from judges of various eras supporting divine right, or whatever. In the act of picking, though, one chooses the tradition that reflects one’s values. And if it’s an honest choice — which in Jackson’s case it is, because the Constitution’s drafters were genuinely concerned about execdutive tyranny — then it’s not just a modern judge imposing his/her whim, but represents fidelity to the values that underlie the Constitution.
I don’t honestly know what the drafters of the Second Amendment were going for. An individual right of the kind found in Heller would have been written quite differently, and I think Miller is a fairer reading of the text.
“And if they’re not linking to or citing his work, I think that’s a pertinent comment on what they make of it.”
Not particularly, because it isn’t a large vibrant field in history–and the most prominent historian with anti-gun research ended up being exposed as a complete fraudster which may or may not say anything about the ability to find such history without making it up.
“An individual right of the kind found in Heller would have been written quite differently”
Do you mean that it wouldn’t be held by ‘the people’. Kind of half the 1st amendment rights and all of the 9th?
To all the lawyers here – I appreciate you all taking the time to comment and even more, to hash things out here. It’s all free ice cream for me, for most of us. I feel guilty – I should have to pay for content like this.
Neither the first nor the ninth has anything approaching the first clause of the second. The first and the ninth go to direct reservations expressed in ratification debates about the scope of the constitution, and it’s lack of a bill of rights. The reason I don’t know what they were going for in the second isn’t because I’m in denial and can’t admit the text and events looking me right in the face. It’s because the thing is written differently than the other amendments, and differently from the English predecessor (quoted above). Which by the way is a whole lot clearer, if a right to own a gun for self-defense is what they were trying to get at.
I’m not a gun guy, and am not particularly troubled by Heller. I’m not troubled to see a court overturning a statute based on the constitution, I’m not troubled that the Court (and dissent) looked at the history in interpreting the thing. That said, I think Miller more than defensible as a reading of the text, because it gives effect to the first clause. I don’t think the Court’s opinion in Heller does so as well.
I don’t really understand what you think Miller does. What is it? My reading of the case is “we don’t know if the shotgun counts as what is covered in the 2nd amendment, go have a trial about it so there is a court record that we can make real decisions on”. And then there was no trial so nothing else happened.
My reading of Miller is that he needed to show that his weapon was appropriate for militia use. I think this has more relationship to the thing than the right of self-defense against burglars the current court seems to see.
I don’t care at all whether Miller pled, whether the government decided that prosecuting him wasn’t worth it, whether som eone stole the gun from the evidence locker: none of these matter to the question decided, which was that the amendment doesn’t give a blanket right to have any old firearm, but applies at most to firearms appropriate to militia use.
Now I think this is a bad answer, but then I think the thing has outlived its usefulness. Nonetheless, there it is, and as you like to say, that means we either live with it, or amend it away. Living with it requires deciding from time to time what “it” is. Beyond being a somewhat poorly written text.
I’m not a scholar on the point, as I’ve said every time it comes up. I think I’d like to explore the effect of a technological change. At the time the amendment was adopted, bullets were of very simple design, and while some standardization of barrel width (yes, I know there’s a proper technical term for this — I’m trying the speak English here) would have been advisable, it wasn’t nearly as important given the number of rounds any one guy waqs going to get off in an engagement, and the ease with which balls could be made the proper size. This feature is gone, and I’d think about following Miller down the road and saying that the amendment means people can have weapons of the exact type issued to the militia in their area. M16 but no AK-47, is a shorthand description.
Just a thought.
Not particularly, because it isn’t a large vibrant field in history–and the most prominent historian with anti-gun research ended up being exposed as a complete fraudster which may or may not say anything about the ability to find such history without making it up.
A cheap ad hominem.
Was Bellesiles’ work “anti-gun?” No. His thesis merely concerned the prevalence (or lack of) firearms in early America. It had no bearing on the Second Amendment or its interpretations.
As for Bellesiles being “the most prominent historian” in this field–that’s quite questionable. I’d look to Garry Wills, Saul Cornell, Jack Rakove, and many others as prominent Second Amendment historians.
CC, what are you referring to as “militia”? Army National Guard?
Contra to comments made (not by you) upthread, the various National Guards do carry sidearms. Going along with CC’s notion that folks could own personal firearms consistent with those the militias carry, the various NGs carry automatic pistols, M-16s and even SAWs. Even a right-to-bear-arms guy like me would tend to draw the line at full-auto weapons.
“Was Bellesiles’ work “anti-gun?” No.”
No, actually it was. It was rapidly embraced by anti-gunners, on the basis that, “See, it couldn’t have been an individual right, hardly anybody even owned guns at the time!” Not entirely logical, but we are talking about anti-gunners, after all.
No, we’d never even have heard about Bellesiles if he’d written a book fraudulently claiming few revolutionary era Americans owned, say, books. I don’t believe he chose the subject of his fraud by accident, it was a shrewd judgment as to the intellectual/political vulnerabilities of his fellow historians. If THEY had the only say in the matter, he’d have gotten away with it.
“I’d look to Garry Wills, Saul Cornell, Jack Rakove, and many others as prominent Second Amendment historians.”
You mean, all the “professional historians” who were eagerly hoodwinked by Bellesiles, and continued defending him long after lay historians (And a disgracefully small number of professionals.) had proven he was re-writing quotes and taking things out of context?
The Bellesiles scandal was one of the more disgraceful incidents in the history of, well, history. Not because he committed fraud, but because so many historians uncritically accepted his work, ignored all the problems, and awarded him honors even AFTER the work was widely known to be fraudulent. And then had to be dragged screaming and kicking into admitting that what Bellesiles had written wasn’t really true.
What this did was demonstrate that the academic standards of the profession could be tossed aside in a moment, if a con-man started selling them a line of bull they WANTED to be true. And it pretty clearly demonstrates exactly what it is they don’t want to be true, too, doesn’t it?
And the specific historians you laud were among the worst of the bunch. The most gullible, where they weren’t actively complicit. Second amendment historians? I’d say they’ve disqualified themselves from being taken seriously in that regard.
Actually, all I read about the Bellesiles “scandal” suggested strongly that gun nuts with way too much time on their hands had devoted a lot of effort into blowing up a very few errors in a very authoritative book into such a major “academic scandal” that the author was forced to resign.
As we’ve seen right-wingers do this kind of wholesale mobbing before, and will do so again, Brett’s hysteria (“one of the more disgraceful incidents in the history of, well, history”) just suggests more of the same: it’s not a sane, considered, well-informed reaction to the news that an academic got a single table in a six hundred page book wrong, and historians defended his book as generally accurate though with a few errors.
You mean, all the “professional historians” who were eagerly hoodwinked by Bellesiles, and continued defending him long after lay historians (And a disgracefully small number of professionals.) had proven he was re-writing quotes and taking things out of context?
from the Wikipedia on Bellesiles
Garry Wills, who had enthusiastically reviewed Arming America for the New York Times, later said, “I was took. The book is a fraud.” He also told an interviewer for C-SPAN that Bellesiles “claimed to have consulted archives he didn’t and he misrepresented those archives,” lamenting that Bellesiles did not have to do it, since he had good evidence for many of his claims. Wills added, “People get taken by very good con men.” Historian Roger Lane, who had reviewed the book positively for the Journal of American History, offered a similar opinion: “It is entirely clear to me that he’s made up a lot of these records. He’s betrayed us. He’s betrayed the cause. It’s 100 percent clear that the guy is a liar and a disgrace to my profession. He’s breached that trust.”
Really, lj? Oh well: what I recall is from some years ago, and I’m happy to admit I could well have been misremembering – or the articles I read could have been written before Bellesiles’s failings were fully exposed.
(Still think Brett’s being hysterical, though.)
Jes, I didn’t follow it closely, but when Brett writes that professional historians “continued defending him long after [it was proved he did what he did]”, he’s misrepresenting the historical record, I think ;^)
That’s just it: He WASN’T a very good con man, save in the sense that a good con man knows what you want to believe.
And it wasn’t just the fake probate records. For crying out loud, the guy was rewriting well known historical sources! Changing them to support his thesis!
Here’s Bellesiles’ version of the 1792 militia act:
“Further, “every citizen so enrolled, shall…be constantly provided with a good musket or firelock, a sufficent bayonet and belt, two spare flints”, and outher accoutrements. Congress took upon itself the responsibility of providing those guns, and specified that within five years all muskets “shall be of bores sufficient for balls of the eighteenths part of a pound”
Here’s what it actually said:
“That every citizen so enrolled and notified, shall within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than…”
Look, the militia act of 1792 is not some minor triviality, it’s the sort of thing any “2nd amendment scholar” would normally be expected to have committed to memory. I wouldn’t claim to be a 2nd amendment scholar, and *I* noticed the change!
The guy’s book is littered with WTF moments for anybody who is even casually acquainted with the subject. This was a very CRUDE con job.
When you think that Wills and Cornell were conned, remember that saying about conning an honest man.
L.J., I didn’t say that they didn’t eventually get around to admitting he was a fraud. They did. I said they continued defending long after he was shown to be a fraud. And they did.
Wills’ concession came long, long after Bellesiles was exposed. Heck, the Bancroft award was given to Bellesiles after he was exposed.
Unless, of course, you define “exposed” as, “his most stubborn defenders finally abandoned him”.
liberal japonicus: Jes, I didn’t follow it closely, but when Brett writes that professional historians “continued defending him long after [it was proved he did what he did]”, he’s misrepresenting the historical record, I think ;^)
I read a detailed review of the book in London Review of Books (I think – it was certainly that kind of review – lengthy, detailed, written by an enthusiast) which made it sound fairly substantive. And I read a review after the “scandal” broke and the gun nuts started bouncing up and down and calling him hysterical names, and this (in Salon, I think) pointed out that when you discover half a dozen errors in a six hundred page book, this is matter for correction in a second edition, not for a demolition job on an academic’s reputation.
But there may have been more to it than that: just the more Brett squeals and bounces that this was a terrible, horrible scandal, the more I doubt that there was anything much to it at all beyond a bunch of very rich people with a political agenda to fight who wanted to be rid of a troublesome historian.
“bouncing up and down” paints some imagery that, unless you’re highly into covert surveillance, you almost certainly lack access to, Jesurgislac.
I think you’ve crossed over into unnecessary personal attack. If Brett’s ideas lack merit, attack them. If they do in fact lack merit, it should be a piece of cake to dismantle them.
scratch “bouncing up and down”; insert “squeals and bounces”, not that the particulars matter.
It’s creative visualization brought on by Brett’s lengthy comments on this terrible, horrible, no good, very bad scandal.
But, yeah, I should have kept it to myself. I don’t particularly want to know how others creatively visualise me (though FWIW, I always imagine John Thullen with a manic grin and a sparkly helium balloon).
Feh. Yeah, we had a motive for noticing the fraud. Wills had a motive for not noticing it. We were right, and that impeaches us in your eyes. Wills was wrong, and that doesn’t mean squat to you.
You’re hopeless.
Heck, the Bancroft award was given to Bellesiles after he was exposed.
Again, I didn’t follow this closely, but I think you are again mistaken. Lindgren’s Yale Law Journal article, which was probably the most substantive attack on Bellesiles, came out in 2002, a year after the Bancroft Prize was awarded. Certainly, ‘long after’ can mean days, months or years, so I’m not going to suggest that you are wrong on this, but Lindgren states:
The response by historians to the 1996 JAH article was varied. At a meeting of the Crime and Justice Network of the Social Science History Association, historians discussed how such a piece of work could get through peer review. The consensus was that probably none of the experts in the room (many of whom were quantitative historians) had been asked to review it. The Organization of American Historians, on the other hand, had a different response: They awarded the article the prize for the best article published in the JAH that year. (26) This bipolar response to Michael Bellesiles’s work on guns continued until recently–those who are most expert on the subject of guns in early America or tend to understand numbers best were most skeptical about Bellesiles’s work, while those who know less about guns or less about numbers were most enamored of it.
so your suggestion that the class of ‘professional historians’ (of whom quantitative historians are a subset of) were enamored of Bellesiles thesis is wrong. Or was this another ‘observation’, stemming from a personal definition of ‘professional historian’?
the most prominent historian with anti-gun research ended up being exposed as a complete fraudster
I would think that pro-gun types would be a bit embarrassed to make the integrity of researchers an issue. John Lott, the”most prominent pro-gun empirical researcher,” is hardly a model of intellectual probity, and, unlike Bellesiles, continues to enjoy a good reputation among those who support his views, regardless of the quality of his work.
“Was Bellesiles’ work “anti-gun?” No. His thesis merely concerned the prevalence (or lack of) firearms in early America. It had no bearing on the Second Amendment or its interpretations.”
The prevalence of firearms in early America has no bearing on the Second Amendment or its interpretations? I suppose you might say that now that his ‘history’ was exposed as a fraud. It definitely wasn’t received that way when it was embraced by the anti-gun people at the time.
Jes, you aren’t up on it at all. His work was exposed as a fraud not only in that he fabricated some of the records that he allegedly relied on, but also becuase in quoting historical records he changed key words and numbers for the documents that did exist.
I also note that sales of his book are still going strong with the official reviews not noticing that the book has been discredited and both reviews explicitly referencing the 2nd amendment debate:
John Lott’s book still has positive editorial reviews too so I guess they just don’t ever update them….
Wills had a motive for not noticing it. We were right, and that impeaches us in your eyes.
Such mindreading.
Look, Bellesiles lost his job and I haven’t seen any university or think tank competing to employ him. If he’s writing, there’s been no clamor to publish him. His professional reputation has been ruined.
OTOH, John Lott isn’t a historian but his agenda seems to continue unabashedly; few on your side have condemned him.
Lj:”so your suggestion that the class of ‘professional historians’ (of whom quantitative historians are a subset of) were enamored of Bellesiles thesis is wrong. Or was this another ‘observation’, stemming from a personal definition of ‘professional historian’?”
Even in the part you quote he draws the line between skeptics and those who embraced “Arming America” at people who knew more about guns, and people who understood numbers. Furthermore you seem to be overinterpreting ‘most skeptical’, as it wasn’t enough to prevent the Bancroft Prize from being awarded, apparently without any investigation into the problems with his work that had been documented since 1996.
Next notice that in that same article Lindgren writes:
“Bellesiles’s surprising thesis had a few detractors online, mostly among pro-gun activists and scholars unaffiliated with universities, (27) but most historians were impressed. Alfred A. Knopf, perhaps the top nonacademic publisher of serious books of history, agreed to publish a much-expanded version of the article. The educated public first learned of the forthcoming book in a long, positive article in the Economist in the summer of 1999, (28) over a year before the book came out. The Economist article was followed by a similarly positive article in the New York Times in the spring of 2000, still five months before the book’s publication. (29)”
So I don’t think my personal definition of historian is relevant if you are going to try to use the Lindgren article (of all things!!!) to disagree.
Then note the NYT Review of Books review by Garry Wills who was one of the most prominent historians in the field.
So while there existed some historians with reservations, their reservations either weren’t expressed, or were not taken seriously in the field until years after the 1996 article.
Bernard: “I would think that pro-gun types would be a bit embarrassed to make the integrity of researchers an issue. John Lott, the”most prominent pro-gun empirical researcher,” is hardly a model of intellectual probity, and, unlike Bellesiles, continues to enjoy a good reputation among those who support his views, regardless of the quality of his work.”
We cross-posted but I have no trouble noticing that. There seems to be a lot of fraud running around in the most prominent ‘scholarly’ approach to gun issues.
I don’t know if that is because there is a lot of fraud in scholarly approach to everything that doesn’t get exposed because there aren’t politically motivated opponents, or if because the politically charged issues attract people who want to make wild claims. But in either case that doesn’t seem to support publius’ apparent idea that the look from outside the history departments can’t be every bit as useful as the one from inside.
The initial mention of Lott on this thread was by Sebastian, in case anyone missed it.
I’m not any kind of a fan of John Lott’s, for what that’s worth. I just tend to think the dismantling of his work has already been done, and by much more capable people than me.
“OTOH, John Lott isn’t a historian but his agenda seems to continue unabashedly; few on your side have condemned him.”
I don’t know how many I need to avoid ‘few’, but even Glenn Reynolds of Instapundit (whom many on the left consider a hack–do I need a cite for that proposition anyone?) offered posts like this immediately as the news broke. See also here
I would also like to note that both of the criticisms that publically exposed Lott and Bellesiles were published as law review articles–the format which is disfavored as to Volokh.
The initial mention of Lott on this thread was by Sebastian, in case anyone missed it..
Have any particular “one” in mind? Yes, I missed it. I’m glad you and Sebastian are not among Lott fans, but I note that, as mis en place says, Lott still has a wide following, in contrast to Bellesiles.
Glenn Reynold’s “criticism” of Lott appears to be fairly tepid. He notes Lott has received much unfair criticism in the past and Reynolds isn’t qualified to comment either way.
Lott continues to be cited, in terms of public policy rather than history, by local and national legislatures.
“Glenn Reynold’s “criticism” of Lott appears to be fairly tepid. He notes Lott has received much unfair criticism in the past and Reynolds isn’t qualified to comment either way.”
Glenn Reynold’s criticism was within days of the charges being raised, that is IMO the proper response.
Bellesiles was being strongly defended for at least a year after the substantive criticisms were well known.
Even a right-to-bear-arms guy like me would tend to draw the line at full-auto weapons.
I understand the sentiment, but have to ask ‘on what basis’? If the Second Amendment gives an individual right at all, it seems to me that it has to give that right as to such arms as are in use, and for which ammunition is stocked, by the organized militia.
Those of us who don’t like the implications of that need to get an amendment going. If that’s what it means . . .
“I understand the sentiment, but have to ask ‘on what basis”
Probably mostly force of habit; They’ve been harshly regulated for longer than most people have been around.
Sebastian: What criticism? Reynolds notes the controversy concerning a missing survey and then claims he is unqualified to comment.
BTW, the missing survey was but one controversy; there were many others.
Lott continued to work at AEI for years after. He now works at the University of Maryland. He still publishes op/eds and his work is cited by gun groups.
Not that I’m really interested in defending Lott, he’s a pretty embarrassing fellow, but the only offense I know of that has actually been proven is the use of sock puppets. (Like I said: Embarrassing.)
Which is really stupid, and at least somewhat dishonest, but not generally a firing offense.
No, unless I’m horribly behind, it also appears that Lott faked some of the surveys he relies on for his research.
I know that’s been alleged, which is why I said the sock puppetry was the only think I knew of that’s been proven.
Even in the part you quote he draws the line between skeptics and those who embraced “Arming America” at people who knew more about guns, and people who understood numbers.
Sebastian,
my point was that Brett made (yet another) sweeping generalization by using the class of ‘professional historians’ and added fuel to the fire by suggesting that they were ‘eagerly hoodwinked’, implying it was because of their politics. I don’t want to claim that Brett is succumbing to anti-intellectualism, because perhaps he hasn’t really thought this through, but if in any academic endeavour, someone falsifies research, you are going to have a problem because a fellow researcher is not going to start off by first saying ‘geez, I wonder if this data is phony’. It is a particular achilles heel of academic research, which arises because of the guild nature of the endeavour, exacerbated for social sciences and liberal arts by the fact that you aren’t doing experiments that can be recreated. And even with fields where the experiments can be recreated, you still have a time lag. That Brett attributes to malice what is actually the way the whole enterprise works says a lot more about Brett than about professional historians.
LJ, I don’t expect researchers to start out thinking that data might be phony. I do expect them to notice if basic, widely disseminated source materials have been rewritten to support somebody’s thesis. I expect them to care if it’s pointed out to them that they’ve been rewritten.
The militia act of 1792 is not some obscure document, it’s something any “2nd amendment historian” would be expected to be quite familiar with. Plenty of laymen are, it’s part of the materials that usually get invoked in these debates.
The issue of the phony probate records only came up later, after the altered quotes and such had aroused suspicion. But the altered quotes SHOULD have aroused the suspicion of anybody familiar with those source materials.
I think some people tend to discount the importance of those rewritten documents, just because Emory refused to address them during it’s investigation, preferring to focus on the probate records. But they were what started Bellesiles’ whole web of lies unraveling.
I think it’s fair to attribute Bellesiles’ fraud to some form of malice. That a lot of historians were way too slow to acknowledge the problems with his work? Not malice, just bias.
But why pretend that bias isn’t still present?
I don’t think I claimed that bias isn’t present, I merely observed problems with the way you state the record of what happened. While it may be that Bellesiles was motivated by malice (though I really have no idea what motivated me to do stuff, so I am not going to try and figure out what mostivates other people), claiming that the Bancroft Prize was awarded in spite of the ‘fact’ that Bellesiles was debunked is a bit far out on that particular limb.
In any field, there are a smaller number of people with an intimate familiarity of the materials and they act as gatekeepers. Failing to understand this leads you down the path where you reject anything from ‘professional historians’ that runs counter to your views and beliefs. Not a good place to be. You attributing the field’s reactions to bias fits, oddly enough, into some of the biases that you have demonstrated in this thread, including the desire to make history speak as a determinative factor and the dismissal of parts of the historic and textual record that don’t accord with your vision.
Sebastian: I also note that sales of his book are still going strong
No wonder, with people like Brett boosting the book. Seriously, it would never have occurred to me to buy it, but after reading all of Brett’s fulminations about it, I am tempted, just to find out what all the fuss is about. And you don’t like it either! Bonus point.
Gun nuts who regard this book as the academic scandal of the century and who keep advertising it across the web, have probably done more than anything else could to keep sales brisk.
including the desire to make history speak as a determinative factor
sorry, that should be the determinative factor. I got no problem with having it as part of the mix.
Jes, do try to remember that pretty much everybody admits Bellesiles was a fraud, NOW. So, go ahead and buy the book, hell, I read Immanuel Velikovsky’s “Worlds in Collision” for yucks years ago, probably still have my copy. Frauds and cranks can be entertaining reading.
Just don’t be foolish enough to regard it as a source of information. It’s a work of fraud.
“In any field, there are a smaller number of people with an intimate familiarity of the materials and they act as gatekeepers.”
Yes, and in the case of Bellesiles, they were abject failures, letting fraud through the gate, and then closing the gates to the debunkers long enough for him to win his prize.
That’s GOT to cost them some credibility. It must.
“claiming that the Bancroft Prize was awarded in spite of the ‘fact’ that Bellesiles was debunked is a bit far out on that particular limb.
In any field, there are a smaller number of people with an intimate familiarity of the materials and they act as gatekeepers. Failing to understand this leads you down the path where you reject anything from ‘professional historians’ that runs counter to your views and beliefs.”
Does this depend on the historians who give out the Bancroft Prize not being among the gatekeepers? That seems weird.
Sebastian,
First of all, Lindgren’s article is 2002, the Bancroft prize was issued in 2001 and the book was published in 2000, a book which was attacked by NRA president Charleton Heston in 1999 because it undercut ‘useful myths of the American frontier’. (interesting how if it is true, it undercuts useful myths, but if it is false, it is an abomination, eh?) That seems like a pretty clear timeline, unless one thinks that the 14th amendment was affirmative action for firearm possession. So the first paragraph was discussing the timeline that Brett seems to elide.
Second, you don’t evince much knowledge of the field of history when you make offhand claims about the ‘vibrancy’ of particular field, which implies that there is some defined field of 2nd amendment history (obviously the class that Brett took).
And as someone who I seem to remember has posted rather strong comments on the innumeracy of the general population, it should come as no surprise that fields like history might have a statistical/non-statistical split, and history, which has to rely on historical data that is gleaned from sources that evince the same problems with statistics, might run afoul of this.
This comment might seem a bit sarcastic, but
I’m not really sure how to interpret a two paragraph quotation from me, followed by what seems to be a rhetorical question followed by ‘that seems weird’ except as a way of undercutting my argument without actually stating your own beliefs. There is an interesting discussion lurking here, but if it gets buried with snark, I don’t think it will survive.
Coming back a bit late, but I have a question:
It seems to me (and I could be mistaken) that “well-regulated” is part and parcel of the 2nd, and that subsequent regulation follows from this phrase. Yet the very next word, “militia”, is seen as completely contraversal (as seen over three posts). Is this just history, or is there some other explanation?
Liberal_japonicus, I have no idea what you are trying to say.
You seem to be saying that there are special gatekeepers in the history profession and then something about statistical vs. non-statistical and that whomever these gatekeepers are they may or may not have anything to do with awarding the most prestigious award in the field (you don’t seem interested in saying whether or not they count).
The fact that the Lindgren critique was published (in a law journal I might add) in 2002 doesn’t change the fact that the criticisms of the original 1996 paper went uninvestigated by the gatekeepers (whoever you think they are). Much of Lindgren’s 2002 article assembled the criticisms available by 1998. It took an outsider, in a law journal, to bring those criticisms to the surface. So it would appear that the gatekeepers, who may or may not include the people who award the Bancroft Prize) failed to keep the gates.
Is that what you are talking about?
“So the first paragraph was discussing the timeline that Brett seems to elide.”
Well, I would be, if I were to agree with the proposition that Lindgren was the first person to spot problems with Bellesiles’ work, which he wasn’t.
I’m not sure the word “militia” is all that contraversial. The problem here is with people who want to take a right which is explicitly guaranteed to the People, and restrict it to the militia.
Sebastian,
The Bancroft prize was awarded for Arming America, not the 1996 article (cite). As I understand it, though critics raised objections to the 1996 article, as Lindgren himself points out, some historians were wondering how it got published. This does not accord with Brett’s blanket accusation of ‘professional historians’. Furthermore, after problems with Arming America were discovered, this encouraged a re-examination of the 1996 paper. Brett initially seems to suggest that there was some conspiracy, which he then softens to bias.
Furthermore, the William and Mary article focussed on the probate court records and the Yale book review focussed on other weaknesses in Arming American, not on the 1996 article. In the Yale book review, at most one page of a 54 page piece discusses the 1996 model.
To address Brett’s point, one of the reasons why the earlier criticism were not taken seriously is because of overly broad argumentation, precisely the kind that Brett has offered in this thread, which might give one pause. Brett’s suggestion is that previously raised points should have tipped historians off. I assume that he is referring to the fact that Lindgren cites Clayton Cramer as having raised many of the points. Why Cramer wasn’t taken seriously by the field is an interesting question, but claiming that because Clayton Cramer disagreed with it, the entire field should have got behind him is not a place where I think you will be happy going.
It also suggests that if one is going to argue that history is important, you have to make every effort to point out precisely which event follows the other. Conflating the 1996 article and the 2000 book is precisely the opposite of that.
“1996 model”
Geez, thinking about getting a new car cause gas is approaching $2 a liter tends to skew one’s vocabulary…
I’m not conflating them but they aren’t as separable as you seem to think. Both the book and the article had the exact same thesis and much of the same ‘supporting’ documents.
Here is the History News Network’s page about the controversy (ironically run by those ‘professional historians’ Brett scorns) I leave it to the reader to decide what’s what.
The HNN page doesn’t even mention the 1996 frauds.
I think both magistra’s and dr_ngo’s comments are at once too long-winded and too timid.
Of course history — even history by “amateurs” — can and should inform contemporary thought. History is in fact the research discipline most likely to produce works amateurs can profitably read, and historians are the academics who seem to find it easiest to communicate with the general public.
There’s nothing wrong with SCOTUS looking at history to help their decision-making, as long as the history is *good* and clear about where the blurry bits are. Nothing is as good as history for giving you perspective, for opening your eyes to both the universals in your situation and the way other people differ from you. And if it *doesn’t* open your eyes, it’s not good history.
To take an object example in this very discussion: Brett claimed that one of the goals of the 14th Amendment was to permit Freedmen to arm themselves against the proto-Klan, and that no-one with any knowledge of American history could fail to be aware of it.
It transpires that neither the pro historians nor the rest of us with USan educations have heard this argument before. Clearly, then, Brett is not enough of an historian to know what historical knowledge is likely to be widespread or marginal, and I have to view his historical pronouncements as highly dubious.
Here’s Clayton Cramer’s discussion, on the same website. (there’s also an interesting riff about fact-checking versus peer review) I don’t see him making the same equation between the 1996 article and the book, and if there is anyone to make that claim, it would be him. In fact, he notes that it is only after the longer form of the book came out that it was evident where the problems lay. You might believe that the 1996 article and the book were substantially the same, but, like Brett’s 14th amendment history, a little thought would reveal that it couldn’t really be that way.
Clearly, then, Brett is not enough of an historian to know what historical knowledge is likely to be widespread or marginal, and I have to view his historical pronouncements as highly dubious.
I don’t agree with Brett’s views on professional historians, but that’s not a legitimate deduction. The best way to get a good sense of what historical knowledge people in general have is by *teaching* them, which is precisely what most amateur historians don’t do. On the other hand, if you are *researching* history as an amateur or professional and spend a lot of time in reading the relevant books, discussions with fellow specialists and enthusiasts, it’s not surprising you end up thinking that everyone knows X (just like a bunch of Trekkies would probably assume that everyone knows about Tribbles). It is always a shock to the system to the enthusiast finding out just how little the general public knows about your topic.
“You might believe that the 1996 article and the book were substantially the same, but, like Brett’s 14th amendment history, a little thought would reveal that it couldn’t really be that way.”
You quote Lindgren as suggesting that historians with knowledge of numbers were skeptical from the beginning when you wanted to show how professional it all was earlier in the conversation. If you are going to engage in thick amounts of snark you might want to stick to a coherent storyline.
“Why Cramer wasn’t taken seriously by the field is an interesting question, but claiming that because Clayton Cramer disagreed with it, the entire field should have got behind him is not a place where I think you will be happy going.”
You were doing fine until the ‘but’. The question is why did historians ignore Cramer when he was raising very legitimate and very obvious questions about the ‘research’. If his objections had been bad, the reason why virtually none of the field (lets not pretend that it was just some slight holdouts) took him seriously would be self-evident.
But they weren’t so we have to seek other explanations.
I’m sure Bellesilles appreciates your constant and sterling work advertising his book, Brett.
I was initially speaking to Brett, who deemed people as being ‘ignorant’, so you might want to recalibrate a bit. You might also want to read what Cramer wrote concerning his efforts:
What astounded me was the reaction of historians. In October of 2000, I sent my complaint (which I will admit was more strongly worded than was politic) to several professional historian email lists.
Perhaps Cramer would have been as pointedly ignored had he been more politic. But he admits he went after Bellesiles pretty hard, and I think he lost the moral high ground at that point, which is why it remained to Lindgren to carry the ball over the goal line.
As far as coherent storyline, I’ve already illustrated that you were wrong about the Bancroft prize, I noted just above that you turn a blind eye to Brett calling people ignorant (though in your defense, that’s not snark, it is invective), and you argue that the time to have taken action concerning Bellesiles was after the 1996 article. A point in time that Cramer describes as follows:
I chalked up Bellesiles’s claims to zeal and bad luck: picking an atypical set of sources, and attempting to find a useable past—useable for the political purposes that were only thinly veiled in that JAH article. I thought he was wrong, but it did not occur to me that he would actually make anything up, or alter quotes to prove his point.
So, like your feeling on my snark, your feeling that 1996 was the proper moment in time to discuss what should have been done rather than after Lindgren’s articles in 2002, also lacks a certain coherency, while I think mine holds up quite adequately, thank you very much. Of course, if you modify my statement with phrases like ‘slight holdouts’, you would certainly whip the stuffing out of that strawman. But the schizophrenic alternation between quoting blocks of my text with an added rhetorical question and observation and a restatement of what I say that doesn’t actually correspond to my comments (along with the deftly placed plaint of a lack of understanding about what I am saying rather than a more helpful attempt) leaves me with a bit of whiplash, so I leave the field to you.
I think both magistra’s and dr_ngo’s comments are at once too long-winded and too timid.
An occupational hazard of historians, I fear.
Unlike Scientists, who are curt but bold.
(And thus, I surmise, always get the girl . . .)
“So, like your feeling on my snark, your feeling that 1996 was the proper moment in time to discuss what should have been done rather than after Lindgren’s articles in 2002, also lacks a certain coherency, while I think mine holds up quite adequately, thank you very much. ”
Nope. I’m not claiming that in 1996 the gatekeepers should have automatically suspected fraud or immediately detected fraud. They should have suspected “zeal and bad luck: picking an atypical set of sources” and either then or before handing out one of the most prestigous prizes in the field, they should have investigated his methods and results a little bit more. They would have then detected the fraud.
Instead they helped him popularize his book with glowing reviews from top members of the field, ignored the pre-prize warnings, awarded him the top prize in the field, and failed to investigate until the evidence was already completely damning.
And these are the gatekeepers that you think Brett doesn’t understand enough to comment on.
Lindgren’s article in a *law review* (not in a historical journal which seems to be the gold standard again and again above when dismissing Volokh as not good enough in history while not reading his work) should not be the first time the charges were taken seriously. His incredibly novel thesis, with really quite shocking interpretation of the sources should have attracted the slightest bit of skeptical attention from the gatekeepers you rely on IF we are to take that gatekeeping role seriously, as you seem to believe. It did not until the whole thing was already exposed.
This causes me to suspect that the posited difference between historical journals and law review articles (which is to say the safeguards of ‘peer review’) are perhaps not so different as to require any deference in these gun history cases.
Going after someone pretty hard loses you the moral high ground? Then it’s pretty much all moral low ground, hereabouts.
Maybe you meant something more like “lost his audience”, though.
Durant’s Story of Civilization runs about 1000 pages, and that’s just Volume 1 of 11.
But I’m not sure that Will Durant could be considered to be a “trained historian”, unless you count self-training. Which is not to say he was uneducated, any more than Volokh is uneducated. Possibly he got a much better classical education than Volokh. No other comparison between the two is intended, here.
That last comment ought to have been preceded by this:
I wouldn’t tag Durant with too long-winded, though. I enjoyed far more of that first volume than I’d expected to.
(And thus, I surmise, always get the girl . . .)
*eyebrow*
You realize, don’t you, that that implies that we aren’t one — as it were. You might want to re-think your assumptions about my gender and/or motives.
If the girl is Susan Ivanova, though … *waves hand* carry on.
An occupational hazard of historians, I fear.
Unlike Scientists, who are curt but bold.
Cage match: Doctor Science (Science!) vs dr ngo (History!). Tonight only! At the Fairplex Colleseum!!!
No?
Doctor Science: It transpires that neither the pro historians nor the rest of us with USan educations have heard this argument before.
Speaking of “eyebrows”, you do realize that you were just lecturing a pair of professional historians on the correct way to view history, do you not? This strikes me as a far more pertinent fact than the use of an (admittedly sexist) idiom.
magistra: The best way to get a good sense of what historical knowledge people in general have is by *teaching* them, which is precisely what most amateur historians don’t do.
Amen to that.
There are instances in pre revolutionary America when the term “regulate” was used to describe something other than legislative action. See under “American History”. The “Regulator-Moderator” conflict of 1769 would have been fresh in the framers’ minds as they deliberated. Understood in that context, “a well regulated militia” would be a militia regulated by the knowlege that armed revolt by civilians was an option in the event of hideous government abuse of Liberty.
you do realize that you were just lecturing a pair of professional historians on the correct way to view history
Yes, but *I* know what I’m talking about: I have semi-pro status in history of science, I’ve been a pro book reviewer, and I’ve edited & indexed books of history (not to mention a whole range of other academic disciplines, which is one way I can talk about who writes better for a lay market — hint: it is not sociologists.)
The best way to get a good sense of what historical knowledge people in general have is by *teaching* them, which is precisely what most amateur historians don’t do.
One real advantage of the Internet for the amateur (or semi-pro) historian is that you can interact with almost as many of the ignorant as teachers do, and can spend almost as much time explaining things.
Yes, but *I* know what I’m talking about: I have semi-pro status in history of science, I’ve been a pro book reviewer, and I’ve edited & indexed books of history…
…so, in other words, you’re *less* qualified. Gotcha.
[Not that qualifications are the be-all-and-end-all, but then neither is hubris.]
One real advantage of the Internet for the amateur (or semi-pro) historian is that you can interact with almost as many of the ignorant as teachers do, and can spend almost as much time explaining things.
If you think that Internet interactions with ignorance — yay assonance! — are in any way comparable to that of actual teaching, well, all I can say is that you’ve got a lot to learn.
And now that we’ve both swung our metaphorical dicks — very metaphorical, in your case, but no less real — can we stop arrogating positions of superior wisdom to ourselves and start interacting civilly?
It is clear to see as a self proclaimed liberal that you have never imagined having to save your children from being murdered, your wife from being raped, and you just holding your wang like a piece of wet noodle. Assume some responsibilty and grow a pair.
Did you have anything of substance to contribute, dr mac? Near as I can tell, your collection of straw men, false dichotomies and embarrassingly silly assumptions is pretty much self-contained and doesn’t require the involvement of any actual liberals in order to seem real to you.