Balkinization  

Monday, March 12, 2007

Parker v. District of Columbia: Opening Volley or Just A Flash in the Pan?

Guest Blogger

Saul Cornell
Department of History,
Ohio State University

The recent decision in Parker v. District of Columbia striking down the District of Columbia’s gun control law rests on a combination of bad law and even worse history. It also demonstrates the methodological weakness of originalism in its current form.

It is rather shocking to see a Federal Appeals Court misread established precedent in such a politically distorted fashion. The interpretation of U.S. v. Miller offered by the Appeals Court rests on a revisionist reading of the case manufactured by gun rights scholars. According to the revisionist reading of Miller, the Court only cared about the type of weapon at issue in the case. This reading casts aside more than seventy years of jurisprudence and is absurd. All of the contemporary reports of Miller in the press and legal scholarship of the day treated the case as though it simply restated the overwhelmingly scholarly and legal consensus of the day that the Second Amendment was about the militia. If there was any reason to doubt this reading, then one need only look at the New York Times the day the case was reported. Judge McReynolds prefaced the decision by noting that "We construe the amendment as having relation to the military service and we are unable to say that a sawed-off shotgun has relation to the militia." Clearly, the revisionist reading of Miller has no historical foundation.

The use of Founding era sources in Parker is no less problematic. One of the issues discussed by the Court is the meaning of the phrase “keep and bear arms.” To support the dubious proposition that this phrase was typically used to describe both military and non-military uses of firearms, the Court turned to the Pennsylvania Anti-Federalist Dissent of the Minority. It is a remarkable version of originalism that would use a hastily drafted protest that was never copied by any other state nor emulated by any major writer during ratification as the basis for reconstructing the meaning of an important constitutional text. Indeed, the Dissenters were so far out of step with thinking within their own state that none of them won election to the First Congress that actually drafted the Bill of Rights. Indeed, the Dissent of the Minority was invoked and dismissed during the debate over the Bill of Rights as a text that symbolized the most radical Anti-Federalist demands. Madison did not even include it among various proposals he collected when he began formulating his own list of possible amendments. Yet, despite the overwhelmingly historical evidence that this text was not typical, nor ultimately influential, gun rights scholars and their allies on the DC Court of Appeals insist on using this text as though it were dispositive of the meaning of the Second Amendment. Rewriting the Second Amendment as if it were written by the Pennsylvania Minority take originalism in the direction of an alternate history science fiction fantasy.

The Parker decision contains other historical errors that have been frequently repeated in gun rights scholarship. The Court falsely asserted there are no 19th century constitutional commentaries who favored the militia based reading of the Second Amendment. This would have shocked Joseph Story, the most influential commentator of the pre-Civil War era and Benjamin Oliver, one of the most influential popular constitutional writers of the antebellum era. It also would have shocked influential post Civil War commentators such as John Forrest Dillion and Joel Prentiss Bishop. One could go on for pages documenting the historical errors, logical missteps, and ideological distortions of the opinion in Parker. It is too early to tell if this case will end up being reversed. If it does then Parker will have been little more than a flash in the pan. If the case is upheld then history will view Parker as the first volley in a full frontal assault on modern gun regulation. What is indisputable is that the Court’s analysis of history and precedent was driven by an activist ideology, not a genuine understanding of the original meaning of this provision of the Constitution.


Comments:

In his Commentaries on the Constitution of the United States, vol. 3 at pp. 746-747 (1833), Joseph Story has the following to say about the Second Amendment:

"§ 1889. The next amendment is "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

"§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time ofanding armies in time of peace, both from the enormous expenses, with which they are attended, and the facilee means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.


So much for the theory that the Second Amendment was meant to arm an organized National Guard under the command of the government rather than the armed citizenry which to this day makes up the unorganized militia.

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

Story is describing the right to keep and bear arms as an individual liberty belonging to the citizenry and the people, not a National Guard.
 

By chance, I read (and enjoyed) your new book recently. So, I appreciate your input, but would have been also interested in your reply to Balkin et. al. that there is an individual right, just not the way it was defended in Parker.

[FWIW, I agree with them, but would focus on the 9th and 14th as places to look and perhaps the 4A given the home aspect when dealing with private use as here.]

I also was struck by the selective use of original understanding as well as the Miller precedent itself. Miller clearly stated, and was quoted in later SC dicta on the point, on the militia. How could a lower court therefore say the militia is but one aspect of the amendment's purpose?

Not that the dissent was too convincing either. I actually thought some parts of the dissent in the Quicili case covered by Kennedy/Alderman's book on the BOR that focused on privacy was pretty sound. But, both pro and anti, lower court opinions on this subject leave something to be desired.
 

From David B. Kopel's 1998 BYU Law Review article, The Second Amendment in the Nineteenth Century:

2. Benjamin Oliver

Benjamin L. Oliver was "a writer of law books, a noted chess player, and son of a former Governor of Massachusetts."(151) His 1832 The Rights of an American Citizen contained a chapter entitled "Of the rights reserved to the people of the United States; not being granted either to the general government, or the state governments." This chapter explained the Second Amendment "right of the citizens to bear arms" as making it possible for a militia to combat invasion, insurrection, or usurpation.(152)

An 1822 Kentucky decision, Bliss v. Commonwealth, interpreted the state's constitution to find a law against carrying concealed weapons (the first American weapons control law of general applicability) to be unconstitutional.(153) Oliver thought that carrying concealed weapons, "if it is really unconstitutional to restrain it by law, ought to be discountenanced," since concealment allowed an antagonist to surprise a victim.(154) Still, "[t]here are without doubt circumstances, which may justify a man for going armed; as, if he has valuable property in his custody; or, if he is traveling in a dangerous part of the country; or, if his life has been threatened."(155)

Notes:

152. 151. Benjamin L. Oliver, The Rights of an American Citizen; with a Commentary on State Rights, and on the Constitution and Policy of the United States 174 (1832). The book was cited by the dissent in Harmelin v. Michigan, 501 U.S. 957, 1009-10 (1991) (White, J., dissenting) for the proposition that the Eighth Amendment forbids punishments disproportionate to the underlying offense.

153. 152. See Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822).

If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious.

Id. at 92. "For, in principle, there is no difference between a law prohibiting the wearing concealed arms [sic], and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise." Id. "[I]f any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution." Id. at 93.

4. Joel Bishop

Joel Prentiss Bishop authored important treatises on criminal law, and in those treatises addressed criminal law-related constitutional issues in passing. The 1865 third edition of Commentaries on the Criminal Law and the 1873 first edition of Commentaries on the law of Statutory Crimes contained identical discussions of the Second Amendment:

"This provision is found among the amendments; and, though most of the amendments are restrictions on the General Government alone, not on the States, this one seems to be of a nature to bind both the State and National legislatures; and doubtless it does."(443)

Bishop obviously adhered to the Standard Model individual rights view; he viewed the Second Amendment as a restriction on state governments, not a protection of state governments against the federal government. Bishop continued:

As to its interpretation, if we look to this question in the light of juridical reason, without the aid of specific authority, we shall be led to the conclusion, that the provision protects only the right to "keep" such "arms" as are used for purposes of war, in distinction from those which are employed in quarrels, brawls, and fights between maddened individuals; since such, only, are properly known by the name of "arms;" and such, only, are adapted to promote "the security of a free State."(444)

Bishop thus followed the dominant line of state constitutional case law, excluding certain weapons from the scope of the right. Next, Bishop articulated the nineteenth century's most restrictive reading of the Second Amendment right to bear arms in a scholarly treatise, although Bishop acknowledged that there was contrary case law:

In like manner, the right to "bear" arms refers merely to the military way of using them, not to their use in bravado and affray. Still, the Georgia tribunal seems to have held, that a statute prohibiting the open wearing of arms upon the person violates this provision of the Constitution, though a statute against wearing of the arms concealed does not.(445) And, in accord with the latter branch of this Georgia doctrine, the Louisiana court has laid it down, that the statute against carrying concealed weapons does not infringe the constitutional right of the people to keep and bear arms; for this statute is a measure of police, prohibiting only a particular mode of bearing arms, found dangerous to the community.(446)

Bishop's contrast between bearing arms in "the military way" versus using them for "bravado and affray" (such as shooting them off at New Year's, or using them in duels), does not explicitly state Bishop's views on carrying guns for personal defense. But Bishop's acknowledgment of Nunn v. State (a case guaranteeing a right to carry unconcealed firearms for personal protection) as a case contrary to Bishop's own position suggests that Bishop opposed gun carrying for personal defense.(447)

Read in the most restrictive light possible, Bishop's treatise suggests: (1) the Second Amendment guarantees a right of individuals to own guns; (2) the right's sole purpose was insurrection against tyranny; (3) the arms which could be kept included only arms suitable for warfare; and (4) the right to "bear" arms included only the right to carry arms in public during militia activity.

There is no nineteenth century commentator who appears more dubious about the Second Amendment than Bishop. All of the restrictions articulated by Bishop were, at the least, well-grounded in at least one branch of nineteenth century case law. It is important to recognize that, as restrictive as Bishop's approach is, it is clearly an individual rights one, comfortably within the Standard Model.

The 1901 edition of Statutory Crimes condensed the Second Amendment discussion, emphasizing that the Second Amendment is "declaratory of personal rights" but (like most of the rest of the Bill of Rights) does not bind the states:

It is among the older amendments, most of which are held to be restrictions on the national power, and not to bind the states. This one is declaratory of personal rights, so also are some of the others which are adjudged not to extend to the states; and, contrary perhaps to some former views, it is now settled in authority that this provision has no relevancy to state legislation.(448)

Notes:

443. 442. Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes § 792, at 497 (1873) [hereinafter Bishop, Statutory Crimes]; see also 1 Joel Prentiss Bishop, Commentaries on the Criminal Law § 124, at 73 (3d ed. 1865)[hereinafter Bishop, Criminal Law]. Bishop was a leading founder of the late nineteenth century "classical" approach to law, although his contribution has been unjustly overshadowed by Langdell and other Harvard professors. See Stephen A. Siegel, Joel Bishop's Orthodoxy, 13 Law & Hist. Rev. 215-16 (1995).

444. 443. Bishop, Statutory Crimes, supra note 442, § 792, at 497; see also 1 Bishop, Criminal Law, supra note 442, § 124, at 73-74.

445. 444. Here Bishop cited Nunn v. State, 1 Ga. 243 (1847) (discussing an individual Second Amendment right to carry unconcealed guns for personal defense), and Stockdale v. State, 32 Ga. 225 (1861) (decision of Confederate state court) (reasoning that a person does not violate law against concealed carry if part of the gun is visible).

446. 445. Bishop, Statutory Crimes, supra note 442, § 792, at 497-98 (citing State v. Jumel, 13 La. Ann. 399 (1858), which explained that the Second Amendment guarantees an individual right to carry for personal defense, but not to concealed carry).

447. 446. To put the mere possession of guns for home defense within the scope of "bravado and affray" would require a very elastic reading of Bishop's words.

448. 447. Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes § 792, at 536 (3d ed. 1901).
 

Bliss v. Commonwealth is an outlier in the view of the guest here. A relevant disagreement was Aynette v. State, which has added cachet because it was specificially cited by U.S v. Miller.

Others can have fun with BM, but it is notable that when Rhode Island citizens used their guns to fight against tyranny, outside of the organized militia ("the people" can be armed and still not be individual actors*) that is, in the Dorr's Rebellion, Story was not sympathetic.

* similarly, individual jurors in the view of 19th Century conservative jurists did not have the power of jury nullification. They had to work as part of 'well regulated' jury, so to speak.
 

"Bart" DePalma:

[quoting Joseph Story]:
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of[anding armies in time of] [sic] peace, both from the enormous expenses, with which they are attended, and the facilee means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.


So Story's saying at best (and most charitably) that the militia is the answer to unprincipled rulers. How "Bart" makes that out to an individual KABA right is beyond me.

But in fact, Story doesn't even go that far. He says that not having standing armies prevents any temptations to "ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people." The fact that the militias are offered in part as an alternative to standing armies doesn't enter into Story's argument here.

So much for the theory that the Second Amendment was meant to arm an organized National Guard under the command of the government rather than the armed citizenry which to this day makes up the unorganized militia.

"Bart" has read his nun-guts propaganda "talking points" well, and knows to manufacture this "unorganized militia" construct as some kind of Founding Fathers' wet dream of the Bulwark of Liberty. But, as is plain, the Story quote above doesn't support this contention at all.

{Story again]: The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

["Bart]: Story is describing the right to keep and bear arms as an individual liberty belonging to the citizenry and the people, not a National Guard.


No. Amongst other things, perhaps it might be worthwhile to point out that an individual citizen is not particularly effective in resisting "the usurpation and arbitrary power of rulers".

Cheers,
 

Bart's quote from Joseph Story is also incomplete. Following section Bart quotes, Story continues:

And yet, thought this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How is it practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

The militia was an organized military body as set forth in Article I, Section 8, Clause 16 which allowed Congress to "provide for the organizing, arming, and disciplining of the militia" etc. Story was deploring citizens' failure to show up for regular militia training and drill and abandoning good old-fashioned republican virtue. And, as he makes perfectly clear, Story did not think it possible to keep the people "armed" without a proper "organization."
 

Lawrence Tribe may have come around once he finally bothered to look at the evidence, but I fully expect that Saul would continue writing attacks on the 2nd amendment even if Madison rose from the grave to explain it to him in person. It's what the Joyce Foundation pays him to do, after all.x
 

Professor Cornell:

I trust that you will contribute to an amicus curiae brief on the petition for certiorari of this case. The Court of Appeals wilful misreading of history was fully in evidence in the Boumediene case, so I'm not surprised. It will take a very good historian indeed one day to inform us how crackpot notions of our Nation's past came to infect radical right-wing elites. Frankly, the myth of American farmers going to war against the British Empire with their trusty family hunting weapons as opposed to the stocks of Tower muskets and artillery carefully husbanded by colonial assemblies for their militias is almost innocent compared to the newer myth that the Framers interpreted Article II of the Constitution as a restoration of Charles I's views of executive power.

Perhaps the Constitution and the Bill of Rights are outmoded eighteenth century antiques, serviceable enough for our Republic to meet the challenges of Nazi Germany in World War II and Soviet Russia in the Cold War but hopelessly inadequate in the face of the threat of Islamic fundamentalism to the American Way of Life. But those who view our 18th century conventions as "quaint" should stop trying to deceive the credulous among us by twisting our history into an anachronistic self-serving fairy tale.
 

I suppose I should clarify this: While Cornell is essentially on the payroll of the Joyce foundation, for the purpose of attacking the 2nd amendment, it's doubtful that the Joyce foundation would trust a pure mercenary to run it's flagship anti-gun "scholarship" mill. So I have little doubt that Saul actually believes he's right. And, of course, he could be; Being paid to advance a position doesn't logically imply that it's wrong.

However, it would be rather amazing if Saul Cornell ever admitted that the Parker decision was correct; It would cost him his job.
 

Arne Langsetmo said...

"Bart" DePalma: [quoting Joseph Story]:

§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of[anding armies in time of] [sic] peace, both from the enormous expenses, with which they are attended, and the facilee means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.

So Story's saying at best (and most charitably) that the militia is the answer to unprincipled rulers. How "Bart" makes that out to an individual KABA right is beyond me... The fact that the militias are offered in part as an alternative to standing armies doesn't enter into Story's argument here.


The militia to which Story refers is an armed citizenry which can and was called into service at that time, not a standing National Guard commanded by the government, which Story expressly rejects in this passage.

In short, Story (as did nearly every founder who commented on this right) equated the Militia with the People.

"Bart" has read his nun-guts propaganda "talking points" well, and knows to manufacture this "unorganized militia" construct as some kind of Founding Fathers' wet dream of the Bulwark of Liberty. But, as is plain, the Story quote above doesn't support this contention at all.

Actually, Story is a oft quoted secondary source for those of us who defend the constitutional right to keep and bear arms. I was amazed the professor thought Story could actually be a source for the collective right argument.

You are welcome to show me where Story argues that the Second Amendment right is restricted to a standing organized militia like our present day national guard. Quite to the contrary, the revolutionaries of that time did not want any substantial stranding army at all. Therefore, it is absurd to claim that a right which they expressly granted to the People belonged to such a standing army.

{Story again]: The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

["Bart]: Story is describing the right to keep and bear arms as an individual liberty belonging to the citizenry and the people, not a National Guard.


No.

:::Picture arne holding his hands over his ears screaming over and over again: "I can't hear you!":::

What part of citizens and the people do you not comprehend?

Liberties are enjoyed by individual citizens, not by governments or military units.

Amongst other things, perhaps it might be worthwhile to point out that an individual citizen is not particularly effective in resisting "the usurpation and arbitrary power of rulers".

Story is speaking of an armed citizenry, not a single armed citizen.
 

Enlightened Layperson said...

Bart's quote from Joseph Story is also incomplete. Following section Bart quotes, Story continues:

And yet, thought this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How is it practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.


My friend, this is not a commentary on the right to keep and bear arms which is discussed above. Rather, this is a lament that the "American people" are not undergoing military training in order to serve as an effective militia. This passage assumes that the purpose of the Second Amendment is to "keep the people duly armed."

The militia was an organized military body as set forth in Article I, Section 8, Clause 16 which allowed Congress to "provide for the organizing, arming, and disciplining of the militia" etc.

Not quite. Congress' statutes have recognized the distinction between the organized and unorganized militia.

The organized militia was armed by Congress.

The unorganized militia kept and bore their own arms as discussed at length by Mr. Story.

And, as he makes perfectly clear, Story did not think it possible to keep the people "armed" without a proper "organization."

No, he lamented that the "purpose" of arming the citizenry would be defeated if the citizenry did not know haw to use their arms so that they may serve in a militia. The term "well regulated" meant to be able to shoot well.
 

Bart:

Amongst other things, perhaps it might be worthwhile to point out that an individual citizen is not particularly effective in resisting "the usurpation and arbitrary power of rulers".

Story is speaking of an armed citizenry, not a single armed citizen.

.....

No, he lamented that the "purpose" of arming the citizenry would be defeated if the citizenry did not know haw to use their arms so that they may serve in a militia. The term "well regulated" meant to be able to shoot well.


Nonesense. People can learn to shoot well without militia training. But how does the collective armed citizenry collectively decide that it is time for revolution and collectively act without organization, training and leadership? Any soldier should know that one of the things that makes and effective fighting force is not just the individual ability to shoot, but practice working together as a team.

The collective right of revolution is not effectively secured by armed but uncoordinated individuals, all expected to somehow magically agree when the time is ripe for revolution and all magically work together as a unit when it arrives.
 

The collective right of revolution is not effectively secured by armed but uncoordinated individuals, all expected to somehow magically agree when the time is ripe for revolution and all magically work together as a unit when it arrives.

The claim that the Constitution protects a revolutionary right has always struck me as strange. Revolutionary rights are pre-Constitutional. By definition, a revolution dispenses with the existing state of affairs.

The slaveholders made a similar claim regarding secession. Lincoln was entirely right to respond that secession might be justified as revolution, but the Constitution was a document for after the revolution. Constitutions don't provide for their own dissolution.
 

The Constitution does not protect a revolutionary right, for the simple reason that it is, and was, transparently obvious that at such times that you need a revolutionary right, the government will violate it regardless of what the Constitution might say to the contrary.

What the Constitution preserves is a revolutionary capability. And further, provides a kind of tripwire for revolution, by putting in guarantees whose violation provide the citizenry with clear warning that their government is starting to think itself their master, not their servant.

And the 2nd amendment is such a tripwire.
 

"Bart" DePalma:

["Bart", quoting Joseph Story]:

§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of[anding armies in time of] [sic] peace, both from the enormous expenses, with which they are attended, and the facilee means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people.

[Arne]: So Story's saying at best (and most charitably) that the militia is the answer to unprincipled rulers. How "Bart" makes that out to an individual KABA right is beyond me... The fact that the militias are offered in part as an alternative to standing armies doesn't enter into Story's argument here.

["Bart"]: The militia to which Story refers is an armed citizenry which can and was called into service at that time, not a standing National Guard commanded by the government, which Story expressly rejects in this passage.


Huh?!?!? Where?

"Bart" omits the subsequent Story language, as "enlightened layperson" points out, as well as this language from the Constitution (Article I, Section 8):

"To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

"To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;..."

This separate and apart from the proscriptions on "standing armies".

"Bart" may have a point that the National Guards have become too federalised in recent years, and perhaps he'll sign on with the governors that have expressed reservations or resisted the employment of the National Guard in the service of the Dubya maladministration's overseas adventures. But that harldy refutes the general understanding that the National Guards are the present-day incarnations of the "militias" of the Constitution, right down to the chain of command and the appointment of the officers.

In short, Story (as did nearly every founder who commented on this right) equated the Militia with the People.

Where?!?!? Much less "individual citizens".

[Arne]: "Bart" has read his nun-guts propaganda "talking points" well, and knows to manufacture this "unorganized militia" construct as some kind of Founding Fathers' wet dream of the Bulwark of Liberty. But, as is plain, the Story quote above doesn't support this contention at all.

["Bart"]: Actually, Story is a oft quoted secondary source for those of us who defend the constitutional right to keep and bear arms....


You misspelled "selectively quoted". I agree that the nun-guts grab and pick what suits their fancy, much as you do, "Bart", and that Story offers some fodder for that tactic, but I'd say that this paragraph you're so enamoured of doesn't say what you say it says....

["Bart"]: ... I was amazed the professor thought Story could actually be a source for the collective right argument.

Your befuddlement is noted. That's not our problem.

["Bart"]: You are welcome to show me where Story argues that the Second Amendment right is restricted to a standing organized militia like our present day national guard....

Ahhhh. "Bart"'s moving the gola posts again (or doing his standard "straw man" schtick, however you want to look at it).

But the burden of proof is not on me. The burder of proof is on "Bart" to show that Story thought that the militia (today's National Guard) was the "standing armies" that Story (and the Founders) cautioned against when they said "no federal standing armies".

FWIW, if "Bart" is so concerned about such "standing armies", when can we expect to see him out decrying the perennial reauthorisations of the United States Army and the existence of career officers and soldiers that rely on this federal institution (with its own federal department and bureaucracy)?

["Bart"]: Quite to the contrary, the revolutionaries of that time did not want any substantial stranding army at all....

At the federal level. An organised militia, capable of being called into national military service as warranted by extentuating circumstances, was thought an appropiate substitute. You know, kind of like they said explicitly in the Constitution?

["Bart"]: ... Therefore, it is absurd to claim that a right which they expressly granted to the People belonged to such a standing army.

"Bart" chooses to emphasise the "standing" crapola ... because he wants the RW foamers sitting in their Barcaloungers with Cheetohs within arms reach to have all the penile prostheses they think they need and to take up the defence of this nation. No thanks. They certainly haven't done that in Iraq (see, e.g. Operation Yellow Elephant).

[Story again]: The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

["Bart]: Story is describing the right to keep and bear arms as an individual liberty belonging to the citizenry and the people, not a National Guard.

[Arne]: No.

["Bart"]::::Picture arne holding his hands over his ears screaming over and over again: "I can't hear you!":::


Picture me saying: "Story didn't use the words 'individual citizen' anywhere in the stuff you quoted."

What part of citizens and the people do you not comprehend?

What part of "collective right" and "individual right" are you having trouble with? Perhaps you're right that it is an individual right, and perhaps I'm right that it is a collective one, but you hardly prove your case by dismissing the alteratives proffered by your opponents and ipse dixit defining concepts under dispute as meaning what you think they mean, for your own rhetorical purposes.

Liberties are enjoyed by individual citizens, not by governments or military units.

Huh? A bit of "fallacy of bifurcation" here? FWIW, the actual prohibition is on the gummint itself. You'd be hard pressed to go to court and demand that some other citizen sell (or give) you his arms because the Counstitution gives you a "right to KABA".

[Arne]: Amongst other things, perhaps it might be worthwhile to point out that an individual citizen is not particularly effective in resisting "the usurpation and arbitrary power of rulers".

["Bart"]: Story is speaking of an armed citizenry, not a single armed citizen.


Why, thank you!!!

Cheers,
 

"Bart" DePalma:

The unorganized militia kept and bore their own arms....

We know who the "disorganized militia" is, "Bart". Mike Royko used to do columns on them. Timothy McVeigh signed on....

Cheers,
 

"Bart" DePalma:

The term "well regulated" meant to be able to shoot well.

C.L. Dodgson would be proud of you, "Bart".

Cheers,
 

enlightened layperson:

The collective right of revolution is not effectively secured by armed but uncoordinated individuals, all expected to somehow magically agree when the time is ripe for revolution and all magically work together as a unit when it arrives.

Not to mention the almost assured result that in most circumstances, this would lead to half the population firing at the other and vice versa....

This is the fundamental flaw with "Bart"'s version of 'citizen democracy in action' here. "Bart", being one of John Dean's authoritarian types, is concinced that everyone would be on his side (except that danged out-of-control gummint). I can assure his that this is false.

Cheers,
 

Congress has always recognized two different militias - the organized militia like the NG which it arms and the unorganized militia consisting of the remainder of the self armed citizenry. The former is covered under the Article I militia clause and the latter under the Second Amendment.

TITLE 10 > Subtitle A > PART I > CHAPTER 13

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

 

What the Constitution preserves is a revolutionary capability. And further, provides a kind of tripwire for revolution, by putting in guarantees whose violation provide the citizenry with clear warning that their government is starting to think itself their master, not their servant.

This is a logical policy justification, though I have my doubts about it in practice. That's ok; we can debate policy fairly enough. What I don't see is evidence supporting your policy in the text or history of the 2d Amendment.

To be fair, I'm not an originalist, so the policy debate on its own is good enough as long as it doesn't entirely exclude text and history. It just seems an awkward argument for most 2d A supporters, since so many claim to be originalists of some sort.
 

In his commentaries on the English common law, Sir William Blackstone, discussing the "absolute right of individuals" said the following:

“In these several rights consist the rights, or, as they are frequently termed, the liberties of Englishmen.... So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or [an]other of these rights, having no other object upon which it can possible be employed.... And, lastly, to vindicate these rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular and free course of justice in the courts of law; next, to the right of petitioning the King and parliament for redress of grievances; and, LASTLY, TO THE RIGHT OF HAVING AND USING ARMS FOR SELF-PRESERVATION AND DEFENSE.” 1 Commentaries *44 (emphasis added)1765

Note the similar text in our 1st, 2nd, and 5th amendments.

How's that for history?
 

Blackstone's statement, in context, clearly refers to a collective right. In addition, 2d A supporters generally avoid English practice because it severely restricted gun ownership.
 

In context? Blackstone is talking about the right to justice in a court of law, and the right to petition parliament for redress of greivances (much like our 1st A.) Surely you do not contend that these too are collective rights. Blackstone's use of the phrase "self preservation" clears it up. The dictionary defines self as "the entire person of an individual." Lets keep it in context.

The 2nd A. uses the same language as the 1st and 4th, "the right of the people." Surely the founders would have made clear the distinction between collective and individual rights if the 2nd was referring to a collective right.

All the talk about the militia clause is smoke and mirrors. Certainly militias were part of the motivation for the 2nd
A. A militia is a group of private citizens with private gun ownership. So the militia clause doesn't exclude private gun ownership, it requires it.
 

Apparently I am not the only one who thinks so.

See BLACKSTONE'S COMMENTARIES:
WITH NOTES OF REFERENCE,
TO THE CONSTITUTION AND LAWS,
OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE
COMMONWEALTH OF VIRGINIA. (1803)
http://www.constitution.org/tb/tb-0000.htm

“The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.” Tucker, Blackstone’s Commentaries, Vol 1. Note D. Part 6. Restraints on Powers of Congress (1803).

British law currently is not friendly to gun ownership. But historically it has been dating back to the 1689 Bill of Rights. These rights would have been seen as absolute to the founding generation. Just because in your view it isn't good policy, doesn't mean we can change the Constitution without amending it.
 

Further, the Tucker, Blackstone commentaries speak on the apparent betrayal of British policy as it relates to prohibiting firearms for the preservation of game. Obviously Americans beleived gun ownership should be allowed for this purpose as well.


"8. 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. Amendments to C. U. S. Art. 4.
This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of
the people to keep and bear arms is, under any colour or pretext
whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes.
True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted
to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty." Tucker, Blackstone’s Commentaries, Vol 1. Note D. Part 6. Restraints on Powers of Congress (1803).

Is liberty on the brink of destruction today? Not if courts continue to do what they did in the Parker case.
 

Yes, Tucker's Commentaries support your view, though it undermines your claim about the British. As for the English Bill of Rights, it states "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law." That doesn't help you much.

As for context, you're reading 21st C terms into and 18 C document. Blackstone's comment about self-preservation can only be read in the context of English law, which did NOT permit keeping firearms for that purpose. If you had a firearm for some other purpose and used it for self-defense, that was fine. But there was (and is) no right in England to possess a gun solely for that purpose.

As far as the reference to "the people" goes, you're ignoring its obvious collective meaning in, say, the 9th and 10th Amendments.

Finally, I'm not the one trying to re-write the Constitution. I'm trying to enforce what it actually says. It's the "I get to own my own bazooka" crowd which is trying to change it without an amendment.
 

Yes, even in 1803, the British were passing laws contradicting there own bill of rights, much like many of our own elected bodies have in the US. I have to disagree still, that Blackstone or the English Bill of Rights were referring to anything other than an individual right to gun ownership.

The reference to the people in the ninth and tenth amendments are also references to individual interests. The ninth amendment was used in Griswold v. Connecticut to protect an individual right of privacy, and overturn an anti birth control law. Supposedly, this was one of the rights "retained by the people." Originally, the ninth amendment was meant to clarify that the rights in the Bill of Rights was not our only rights, that we still retain rights which we did not grant to the Federal Government. (See Original Meaning of the Ninth Amendment, Thomas McAffee, Columbia Law Review, 1990; McAffee is also sited in the majority opinion in Parker for his second amendment article)

I don't understand how you can read "the right of the people" in the first amendement one way, and then in the second amendment an entirely different way, and then in the fourth amendment, back again. It makes no sense. It's plain english. But then again, it doesn't align with your agenda.

Let me clarify one thing. I think that the state has a signifigant interest in public safety so as to be able to regulate guns, require registration, and not allow Bazooka ownership :) But like Tucker, I think that self defense is one of the most important rights. This whole debate is just unamerican. ;)
 

I don't understand how you can read "the right of the people" in the first amendement one way, and then in the second amendment an entirely different way, and then in the fourth amendment, back again. It makes no sense. It's plain english. But then again, it doesn't align with your agenda.

It's not clear to me that I have any more (or less) of an agenda than you do. We're simply disagreeing on an interpretation. There's nothing inherently wrong in that. I don't agree with your interpretation, but it's not frivolous.

As for the use of the term "people", I don't see why it has to be used the same way each time. I merely pointed out that it's hard to read it as anything other than collective in several places. If you don't like the 9th and 10th Amendments, try the Preamble or Art. I, Sec. 2, cl. 1.

Reference to Griswold doesn't help you much since it's the meaning in 1791 we're discussing. If you mean "how do we understand it today?" -- a legitimate question in my view -- there still has to be a discussion why it has an individual meaning in light of the reference to a militia.

I think that the state has a signifigant interest in public safety so as to be able to regulate guns, require registration, and not allow Bazooka ownership :)

Fair enough. This is why it's possible to have reasonable disagreements over the scope of the right protected in the 2D A.

But like Tucker, I think that self defense is one of the most important rights.

I agree that self-defense is a right and an important one. Where we disagree is that (a) I don't think guns are essential for the exercise of that right; and (b) suitable regulation of guns would reduce or eliminate the times when someone would want a gun to protect against an attack by someone else with one.
 

Mark, you state your views very well, and you have correctly identified the real issues. There is still a lot of debate over what the ninth amendment really means or meant. There is still great debate over the importance of originalism. My question is how do we really take democracy seriously, if we don't try to correctly interperet the intentions of legislators, or constitutional drafters? Perhaps we can't, or perhaps the drafters intentions are different than the voting body of legislators. There are problems any way you look at it.

As to the question of the militia clause of the the 2d A. Thomas McAffee goes into detail about the reasons it was included in his article Thomas B. McAffee & Michael J. Quinlan, Bringing Forward the Right to Keep and Bear Arms: Do Text, History, or Precedent Stand in the Way?, 75 N.C. L. Rev. 781, 890 (1997) This article is sited in the Parker case by the majority. McAffee describes the militia clause as a sort of preamble of the second amendment. Much like the preamble of the consititution, it doesn't have any real legal implications to the constitution. It is there to introduce, and give historical background, perhaps reasons for creating the document. The militia clause says "a well regulated militia being necessary to the security of a free state," which many of the day beleived. Having militias was certainly a motivation for including the 2d A. in the Bill of Rights. But the language of the 2d A. does not protect the right of the people to have militias. It protects the right of the people to KEEP AND BEAR ARMS. Again, militias are private citizens, with private gun ownership. So if we are viewing things from the drafters perspective, protecting individual gun ownership in effect protects militias. Still, this doen't mean that militias were the only reason they were protecting our individual right to own a firearm. This is why it protects the right of the people to keep and bear arms rather than the right of the people to maintain militias.

Whether or not you feel we need militias today, you cannot argue that the founders didn't intend to protect the individual right of people to own firearms, what ever their reasons. So if we want to get rid of the right to keep and bear arms, we must amend the constitution.
 

Justin,

The problem with originalism is that it doesn't make any sense, outside of the formal structure of our institutions and processes. Some of the substantive rights and structures depend on a context has changed beyond recognition. If we want to be serious about democracy, we have to seriously update the constitution regularly.

The second amendment at this late date is gibberish, if read closely; it's only meaningful by reinterpreting the meaning, something that's been done not by democratic methods, but by juridical ones. The structure of the army, the relations of the states to the federal government - many of those changes have gone either juridically, or at the end of a gun.

It seems obvious that no document structuring a country can withstand 200 years of change with fairly minimal explicit revision, and not have undergone implicit revision. Maybe juridical consensus is better than democratic decision-making; maybe continuous legislative re-definition is a safer method than unambiguous amendment.

I'd like to hear explicit, empirical arguments for those rather than sophistry about "original intent." I'm askin' for meta-law, I guess, and not law per se.
 

My question is how do we really take democracy seriously, if we don't try to correctly interperet the intentions of legislators, or constitutional drafters?

Text and history are important to me, but not definitive. In my view, we take democracy most seriously when we correctly interpret what we, The People, understand our Constitution to mean to us today, not in 1790.

While I think there are limits to this, Jefferson had a point when he said, "The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please …. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors [were] extinguished … in their natural course with those who gave them being. … Every constitution then, and every law, naturally expires at the end of [a generation]. If it be enforced longer, it is an act of force, and not of right.”

McAffee describes the militia clause as a sort of preamble of the second amendment. Much like the preamble of the consititution, it doesn't have any real legal implications to the constitution.

I don't agree that the Preamble "has no legal implications". Certainly John Marshall thought it did; he cited it in some of his most important opinions. And he was there.

you cannot argue that the founders didn't intend to protect the individual right of people to own firearms, what ever their reasons.

I think that issue is very arguable. The historical evidence on this, as so many issues, is indeterminate. That's one of many problems with originalism (most forms, not Prof. Balkin's). There is evidence to support your view; there's also evidence to support a collective rights view. Ultimately, though, what's most important to me is how we today interpret it.

Funny thing is, I'm not sure how far apart we are on the legal principles. We agreed above that even an individual rights interpretation would allow room for regulation. In my view, that regulation should be done by Congress (or the state legislatures, if the Court ever applies the 2D A to the states) rather than the courts. I think that's the most democratic result.
 

The problem with originalism is that it doesn't make any sense, outside of the formal structure of our institutions and processes. Some of the substantive rights and structures depend on a context has changed beyond recognition. If we want to be serious about democracy, we have to seriously update the constitution regularly.

If you want to update the constitution, use the amendment process. I can't seriously believe that you are proposing to change it by some hand waving about "modern context".

In any case, as Eugene Volokh points out, in modern times, the right to keep and bear arms should be read just as forcefully:
http://volokh.com/posts/1130343877.shtml

As he points out, the desire to read the Second Amendment as non-existent is really a desire of elite urban lawyers, not the population as a whole. Read his post above.
 

Believe it, Kevin. Some people just find the rule of law too confining. They see some policy they want, the Constitution, honestly interpreted, doesn't permit it, and it's out with the Constitution.

Of course, since if you dispense with the Constitution altogether, you've got nothing but naked force as an excuse for the government to rule, so you don't admit to getting rid of it. You just resort to a sufficent level of sophistry that what it says no longer constrains the meaning. That way you can use the peoples' respect for the Constitution to get them to go along with any outrage you feel like.
 

Well put, Brett. A "Living Constitution" leads to a Dead Republic.
 

A "Living Constitution" leads to a Dead Republic.

This is exactly backward, as my quote from Jefferson demonstrates. If we don't get to choose our own destiny -- forced instead to behave as our forefathers did for no better reason than that they did so -- we aren't free, we're slaves.

If you want to update the constitution, use the amendment process.

Nice rhetorical trick -- that's my position, not yours. You want to re-write the 2d A to mean things it doesn't mean. It means a militia -- that's the plain text. All the rest is just fancy lawyering and dubious historical claims on your part.

If you want it to mean more, seek an amendment. Then you can have unelected judges regulating gun ownership all over the country. Should be fun -- let me know when we actually have a republic again.
 

[Kevin]: A "Living Constitution" leads to a Dead Republic.

[Mark Field]: This is exactly backward, as my quote from Jefferson demonstrates. If we don't get to choose our own destiny -- forced instead to behave as our forefathers did for no better reason than that they did so -- we aren't free, we're slaves.


Or, put another way, why should we let the "dead hand of the past" rule us? It's our gummint, not theirs. They're gone on to different concerns.

That being said, nothign wrogn with listening to what some of the acknowledge "best and brightest" of past generations had to say. Doesn't mean that we have to accept it as controlling under the circumstances at present (and we're getting into necromancy if we start exhuming the corpses of long dead people to see what they would say had they been around today).

Cheers,
 

Kevin and Brett,

Nice knee-jerk. If you had bothered to actually read what I said, I was not discussing whether originalism would be a good idea, I was questioning whether it is, in fact, possible today, or simply an ideological cover. If you had bothered to read my screed, there's actually is an argument in there for using the amendment process more actively, rather than falsely claiming "originalism" which is nothing of the kind.

The problem is, we haven't used the amendment process actively. In fact, many elements of the constitution have been changed implicitly, whether you like it or not; in fact, we do have a "living" constitution, whether you like it or not. I was asking whether this is a good idea - if not, it's obvious that the constitution should be amended to make it more amendable. If you do support originalism, the current document is incapable of being tightly "originalist" because of its amendment process. A literal understanding of the constitution does not match the facts on the ground, and some portions of it are actually gibberish, in context of the facts on the ground.

There's a difference between the ideal case, and actual-facts-on-the-ground. If we were to be serious about originalism with our current document, our society would quickly collapse. Most statutes would be overruled, our military would be dismantled to a large degree, and most federal institutions would become a nub of themselves. Obviously, that is not going to happen via juridical methods, whether you like it or not. Copyrights would be overturned; cats and dogs would live together in peace! Most Americans, if the demand is for more democracy, today do not want the country "originally" described by the constitution - portions yes, but not the full nine-yards.

So my question stands, what are the empirical difference between an active explicit amendment process, a gradual legislative amendment process, and amendment by juridical consensus? All have some democratic legitimacy (some more than others), so what are the practical implications of each method? Is this discussed in law schools, or is any active research into this being done in political science?
 

So my question stands, what are the empirical difference between an active explicit amendment process, a gradual legislative amendment process, and amendment by juridical consensus? All have some democratic legitimacy (some more than others)

Only the first one, an explicit amendment process is legitimate. Article V provides for the only way to change the constitution - through a constitutional amendment or a constitutional convention. There is no other way to change the constitution. Any other way leads to the mockery of the very concept of a constitution, which becomes so malleable that its text can be ignored, stretched and shredded whenever the elite decide it. You may be OK with this - many of us little people are not. We take the concept of the constitution seriously.
 

Arne:
Or, put another way, why should we let the "dead hand of the past" rule us? It's our gummint, not theirs. They're gone on to different concerns.

Very well. Since it's my gummint, as you put it, I say that I have a right to keep and bear arms. You say you don't? Don't keep any then! Leave my right alone.

But I doubt you would go for that - this is really about the power to eventually ban guns and the inconvenient and Embarassing Second Amendment that stands in the way.

http://www.firearmsandliberty.com/embar.html
 

Kevin,

So are you for opening up the amendment process to a more democratic process? Because if you are correct, that only the amendment process is legitimate and anything else is a mockery, then we currently are, in fact, a mockery. You can't have it both ways, originalist for things you want, and "interpreted" for things you don't. I am quite sure that in a democratic process, the original constitution would not be ratified today - which is all that matters at the end of the day, what people today think. It wasn't even ratified originally by a democratic process...
 

Kevin:

Arne:
Or, put another way, why should we let the "dead hand of the past" rule us? It's our gummint, not theirs. They're gone on to different concerns.

Very well. Since it's my gummint, as you put it, I say that I have a right to keep and bear arms. You say you don't? Don't keep any then! Leave my right alone.


I didn't say it was your gummint, did I? When I was speaking of "our gummint", I was talking about the current polity; the "consent of the governed [as opposed to dead]", so to speak. I don't mean to say that we get to choose in a vacuum; the Constitution is still in force (barely, it seems, at times), and our "interpretation" should be cabined at the very least at the limits by the plain language, and by good sense.

FWIW: To those too young to recognise the wonderful language of Walt Kelly, "gummint" is from his incredibly intellectual comic strip "Pogo". I miss Mr. Kelly. We need his wisdom now.

Cheers,
 

kevin:

But I doubt you would go for that - this is really about the power to eventually ban guns and the inconvenient and Embarassing Second Amendment that stands in the way.

Ahhhhhh. "They're coming for my guns! Quick, tear down the bookshelves, kill the kids, shred the bible and toss them all out into some big barricade to keep the baddies at bad while I fondle my weapon." Ok, maybe a bit overblown, but when you RW nunguts come around to helping me defend the other nine amendments from the predations of the authoritarian RW, maybe I'll think about protecting your one amendment.

But, from my experience talking to your type, you are of the firm position that, at base, your other rights are achieved through that one amendment that you love so much (and thus the rest are in fact redundant if not meaningless). Your bleak vision of the brave nunguts resisting tyranny with their 9mm Glocks and their rapid-fire Bushmasters is so far from the realm of reality as to make it truly hallucinatory. Not to mention, if things ever get to that state, little things like constitutions will have little relevance. Why you think the U.S. Constitution should have envisaged and encouraged such an apocalypic scenario, when it did far less to protect against some of the lesser travesties of justice (instead, relying on the inherent good nature of humankind in general), is beynd me.

Sorry, but if that's where this country is going, I'd prefer not to tag along.

Cheers,
 

The previous comment is distressing in its reliance on personal attack rather than an enlightened discussion of the issue.

My question for professor Cornell is how he responds to the late Leonard Levy's -- no hysterical gun nut, rather one of the foremost constitutional historians of our time -- historical discussion of the origin of the individual right to keep and bear arms in Origins of the Bill of Rights, which tracks generally, though not verbatim, with Judge Silberman's discussion of the issue.
 

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