Balkinization  

Monday, March 12, 2007

The Second Amendment is Back, Baby!: Parker v. District of Columbia

JB

I've been meaning to comment on the D.C. Circuit's recent decision in Parker v. District of Columbia, which held that the Second Amendment protects an individual right and that D.C.'s ban on private ownership of handguns violates the right to keep and bear arms.

My own view, based on admittedly limited research (one can spend one's entire career on the history of this Amendment) is that the Second Amendment protects both a right to keep and bear arms for use in militia service and an individual right to keep and bear arms for purposes of self-defense. The key issue for me is whether the words "keep and bear arms" should be understood in their ordinary sense (one might "keep" arms for several purposes unrelated to militia service) or whether they should be understood as a generally acknowledged term of art that applies only to service in state militias. If the former view prevails, the original meaning points to an individual rights position; if the latter view prevails, the collective rights view-- that the amendment protects only militia service-- is more plausible. The language of the Amendment's preamble-- itself a matter of great controversy-- is not dispositive on this question; to me it is simply additional evidence of usage and of the principles underlying the amendment.

The historical sources on this and almost every other question regarding the Second Amendment are hotly debated and the history is not as clear as we might want it to be. But, as in most cases of historical dispute, we must do the best we can. My current sense is that there is enough data to suggest that the term was not generally understood solely as a limited term of art, which makes the individual rights view more plausible.

I tend to agree with my colleague Akhil Amar's view that Reconstruction sheds additional light on this question, tipping the scale further toward the individual rights view. Whether or not the terms "keep and bear arms" included individual rights of self-defense in 1791, it was assumed that these rights were among the privileges and immunities of citizens that the Fourteenth Amendment was designed to protect. That is to say, the framers of the Fourteenth Amendment assumed that the Second Amendment had an individual rights component, and they sought to incorporate this individual rights component into the Fourteenth Amendment. The Privileges or Immunities Clause was written to declare that people held certain rights by reason of being a U.S. citizen. If the framers of the Fourteenth Amendment believed that the individual right to bear arms was a privilege or immunity of national citizenship, that is a reason to believe that the individual as well as the collective right applies against the federal government today, even if the Fourteenth Amendment is directed at state governments.

Remarkably, Judge Silberman's majority opinion in Parker is not as convincing as one would want for such a high profile case; indeed despite its length it has a sort of rushed, impatient and ipse dixit quality. And the arguments it does make aren't always the best ones. For example the opinion argues for the individual rights view by claiming that references to the right of "the people" in the Constitution signal an individual right rather than a structural or collective right. It also argues that the Second Amendment is an individual right because it is found in the Bill of Rights and the Bill of Rights is a set of individual rights as opposed to a set of structural guarantees. Both of these claims are dubious. The words "the people" don't always signify a collective or structural concern, but at least sometimes they do. It also is quite ahistorical to read the Bill of Rights as merely a collection of individual rights guarantees. (On this point Amar's book on the Bill of Rights is quite important.).

Surprisingly, Silberman also doesn't do a very good job of articulating or proving the original meaning of "keep and bear arms." He relies mostly on citations to other court decisions, including the Fifth Circuit's extensive discussion in its Emerson decision. That's fine as far as it goes, but if he really wanted to make a convincing original meaning argument it would be better to cite more actual sources; moreover, some of the sources he does quote to prove original meaning aren't necessarily the most convincing ones, at least if his goal is to show generally accepted uses of words in 1791.

Quite apart from these quibbles, there is the difficulty that Silberman, as a lower court judge, is still bound by the Supreme Court's 1939 decision in United States v. Miller, which is generally thought to embrace the collective rights view. His attempted distinction of Miller is not all that persuasive and one suspects that Silberman just believes that Miller was wrongly decided. He is entitled to his opinion as a citizen, but not as a lower court judge. However, treating Miller in this way will presumably help increase the chances of review by the Supreme Court, which, one suspects, is the whole point.

Will the Supreme Court take the case, reverse Miller and adopt the individual rights view? Let me put aside for a moment what I think the Constitution requires. I would predict that one side effect of adding Roberts and Alito to the Court is greatly to increase the chances that the Court will adopt some form of the individual rights theory. Whether that means they would strike down most gun control laws-- D.C.'s being one of the strictest-- is a different matter. Individual rights are still subject to reasonable regulations. A total ban on private possession of ordinary firearms might fall afoul of the Amendment, but virtually anything less than that might be upheld, depending on the level of scrutiny that the Court sets. The conservative social movements that have dominated the Republican Party-- and hence American politics-- for the last several decades have tended to support the individual rights interpretation of the Second Amendment. Nevertheless, if the Supreme Court gave them what they wanted, for example, by striking down D.C.'s gun control law, it might help generate a significant backlash from the opposite direction. (In addition, many Congressmen and Senators who live and work in D.C. might suddenly sit up and take notice if they believed that guns would now be freely available there.) We have been so used to seeing backlash from the right these days that we don't expect that it might also come from the left. But as the last election cycle suggests, the times they are a changing.


Comments:

Re. Miller, it's been argued that if the Court had been embracing the collective interpretation, they would have simply found Miller to lack standing to assert a right. (He was a criminal, and no member of any militia.) Instead, they determined that the relevant issue was whether the firearm in question had utility for militia purposes. And returned the case to the lower court for a determination of this. Which never happened, because Miller was nowhere to be found.

Yes, if the Supreme court finds for an individual right, that right will be subject to the absurdly named "strict" scrutiny, which as the above commenter notes, involves taking a strict prohibition, such as "make no law", or "shall not be infringed", and adding all sorts of qualifiers not to be found in the text. I wonder if there's a level above "strict" scrutiny, ("hyper-ultra-strict" scrutiny, maybe?) where the Court simply finds that the clause in question has to be complied with, period?
 

I'm on the road right now and don't have the time to offer a full-scale comment about the DC Citcuit's very interesting decision. I largely agree with Jack, though I'd point out that Saul Cornell's important new book on the Second Amendment, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America, argues that the traditional dichotomy of "individual" and "collective" rights is too sharp, that one important role of the amendment was to provide a mechanism by which community-minded individuals could in fact unite in action against tyrannical government (i.e., classical republicanism). But Jack is definitely right that by 1868 the Amendment has taken on a much more "individualist" cast, especially in the aftermath of the War and the practical necessity of African-Americans keeping and bearing arms to protect themselves against the insurgency called the Ku Klux Klan.

The DC Circuit opinion is mired in what might be called "1787 originalism" and resolutely seems to reject a more "dynamic" interpretation even where it would help their overall case.

Finally, as Marty Lederman has pointed out in conversation, it's not clear if the DC government has independent authority to appeal the decision to the Supreme Court. If not, then it's not at all obvious that the SG would support an appeal, given that the Court substantially adopted the current position of the DOJ. Also, it's not obvious where the four votes to review come from, since strategically-minded juustices might prefer to await the 2008 election and the presumptive changes that will come in 2009 and afterward.
 

I'll risk what might be a dumb question: what constitutes "arms" and how is that defined?
 

How times have changed since since nearly a decade ago when I wrote a law review article discussing the application of an individual right view of the Second Amendment to various gun control laws and was told by the student editors that the article would not be of interest to readers because the law was already decided.

Maybe this subject might become topical again.
 

Dryki said...

I'll risk what might be a dumb question: what constitutes "arms" and how is that defined?

That is a good question. I believe the DC Circuit made a reasonable stab at the question by holding that the term arms refers to the weapons commonly owned by the people at the time, which would include rifles, shotguns, pistols and knives.
 

Sandy: Although I'm not absolutely certain yet, a bit of research suggests that D.C. probably has its own right to petition for cert., and so the DOJ S.G. would only appear, if at all, in an amicus capacity (e.g., in response to a CVSG).

One other small point: The part of Silberman's opinion I found least compelling was the argument that the Second Amendment is designed (at least in part) to provide protection for some right of *self-defense* -- presumably, defense against other private persons who would do you harm in your home. And without more support for such a notion, it's hard to see why even strict regs such as D.C.'s shouldn't be constitutional.

You suggest that the primary purpose of the amendment was to empower "community-minded individuals" (nice euphemism, eh?) to "unite in action against tyrannical government." Silberman mentions this in passing, with a reference to Kozinski's absurd and offensive Warsaw Ghetto analogy. Whether or not that's historically accurate as a description of the initial impetus for the amendment, of one thing we can be absolutely certain: No judge in the country -- and certainly no court -- will ever recognize any assertion of a Second Amendment right based on the notion that gunowners must have sufficient force at their disposal to threaten the police power of the state. Indeed, to the extent any gun possession in the least bit threatens the safety of state law enforcement officials -- even the black helicopters! -- or the efficacy of the state's police power, you can be absolutely certain that that is the last possible case in which Second Amendment rights will be recognized. (Which is, IMHO, as it should be.)
 

The DC Circuit opinion is mired in what might be called "1787 originalism" and resolutely seems to reject a more "dynamic" interpretation even where it would help their overall case.

This raises another issue, to wit, is there a conflict in the circuits?

It's true that other circuits have rejected the individual rights reading. That's not enough, however, to create a conflict. In 1791, and until the 14th A, the BoR applied only to the federal government, not to the states. As far as I know, the 2d A has not been officially "incorporated" by the Court; in fact, there is language in Cruikshank suggesting it is NOT incorporated. Before other courts could apply an individual rights test, they'd first have to find that the 2d A applied to the states. This issue does not, however, apply to DC. Laws in DC are federal laws and the 2d A applied there even in 1791. Because that's not the case for most of us living in states, the new decision doesn't necessarily create any conflict with previous decisions.
 

No judge in the country -- and certainly no court -- will ever recognize any assertion of a Second Amendment right based on the notion that gunowners must have sufficient force at their disposal to threaten the police power of the state.

I was remarking to myself, How could someone write such ignorant nonsense? and then I realized it was Professor Lederman, He Who Believes the Necessary And Proper Clause Is An Independent Source of Authority For Everything Liberals Prefer. I sincerely wonder how a law professor at such a good school can teach constitutional law without having read the Federalist Papers. Not only have multiple Court of Appeals judges made the "guns in the hands of citizens means the government can be kept in check" argument, the Framers themselves made that argument. Are you absolutely ignorant of constitutional history?
 

Mortimer,

The "keeping the government in check" argument is irrelevant in an age in which the state is entitled to keep nuclear weapons, tanks, attack helicopters, etc., and individual citizens are not. Surely you don't believe that the Second Amendment prohibits restrictions on an individual's possession of these weapons.
 

"Bart" DePalma:

How times have changed since since nearly a decade ago when I wrote a law review article discussing the application of an individual right view of the Second Amendment to various gun control laws and was told by the student editors that the article would not be of interest to readers because the law was already decided.

Maybe they were just being kind. Maybe they thought your 'scholarship' sucked....

Cheers,
 

Mortimer: Read carefully -- I was not making any claim about original intent. That's why I wrote: "Whether or not that's historically accurate as a description of the initial impetus for the amendment, . . . ." My point was simply that this rationale will, as it should, fall on deaf ears today, not only because no court will want to give the citizenry the means of putting up serious armed resistance to the state but also, as Adam noted, because in this day and age that would require permitting possession of weapons much more powerful than handguns. Not gonna happen. Indeed, I think not a single Justice would suggest that even the federal machine-gun and body-armor bans are constitutionally problematic on Second Amendment grounds.
 

"Bart" DePalma:

[Dryki]: I'll risk what might be a dumb question: what constitutes "arms" and how is that defined?

That is a good question. I believe the DC Circuit made a reasonable stab at the question by holding that the term arms refers to the weapons commonly owned by the people at the time, which would include rifles, shotguns, pistols and knives.


You misspelled "smoothbores and/or flintlocks".

Cheers,
 

No judge in the country -- and certainly no court -- will ever recognize any assertion of a Second Amendment right based on the notion that gunowners must have sufficient force at their disposal to threaten the police power of the state.

Quite right! And, in fact, the Constitution not only authorizes the use of the militia to supress insurrection (but not to engage in it!), the Federalist Papers also defend the use of the Federal government to suppress insurrections. And then there is the matter of the Whiskey Rebellion, which took place with the ink barely dry on the Second Amendment, but no one, not even the whiskey rebels themselves, ever claimed it was a lawful exercise of Second Amendment rights.

Interpret the Second Amendement as authorizing armed resistence to the government and ever cop killer from petty thugs to Timothy McVeigh will claim it as a defense.
 

No judge in the country -- and certainly no court -- will ever recognize any assertion of a Second Amendment right based on the notion that gunowners must have sufficient force at their disposal to threaten the police power of the state.

While I agree with this statement, I know many libertarians who dispute it. To this end, they always point out to me the fourth right stated in the Declaration of Independence "it is the Right of the People to alter or to abolish it." If one admits to a framers' intent analysis, a discussion of any nexus between this right and the 2nd amendment needs discussing.
 

My point was simply that this rationale will, as it should, fall on deaf ears today, not only because no court will want to give the citizenry the means of putting up serious armed resistance to the state but also, as Adam noted, because in this day and age that would require permitting possession of weapons much more powerful than handguns.

Adam's point was inapposite hogwash. No one construes "arms" to mean "personal use nuclear warheads for Mr. Smith". If you had actually read Kozinski's example concerning the Warsaw ghetto, you would have gotten his point that you need not have a nuke to fend off a more powerful army. Simple firearms are all it takes to deter tyranny. Certainly if your numbers are large simple firearms, one in the hands of each citizen will do. Six million Jews, each bearing one gun, might not beat back the Nazis, but it surely might make them think twice. One's weaponry need not be on par with the latest in techno-death wizardry to scare tyrants off or keep political squabbles from spilling over into streets stained with the spilling of blood.

As al Qaeda has shown, modern mass media makes simply putting up armed resistance very effective, even if it is asymmetric. You do not need a tank to combat a tank; all it takes is a website, and a digital camera, and a Molotov cocktail. The sad part is Professor Lederman is making the "if an eye for an eye, then we'll all be blind" argument, which is silly bunk. It is more likely that anyone with sense won't poke out anyone else's eye because he wants to keep his own.
 

No one construes "arms" to mean "personal use nuclear warheads for Mr. Smith".

What is there in the logic or language of the 2d A which precludes that interpretation?
 

I would suggest "arms" means "a firearm designed for individual use in a military context." A 1789 example would be a smoothbore flintlock musket, in 1868, a Henry repeating rifle, and today, a magazine-fed 5.56mm carbine, similar to the military M4.

Grenades, antitank rockets, and shoulder-launched anti-aircraft missiles should be considered as "ordnance" similar to the horse-drawn cannons of 1787 and 1868.
 

Mortimer Brezny:

If you had actually read Kozinski's example concerning the Warsaw ghetto, you would have gotten his point that you need not have a nuke to fend off a more powerful army.

Yeah, that showed those Nazis ... oh, wait.

[FWIW, I don't disparage the courage and the honour of the resistors in the Warsaw Ghetto the least bit, and I can applaud their brave stand. That it was perhaps doomed (but look at other guerrila and resistance campaigns) is not all that relevant to whether it should have been done. But, thinking a bit further on it, perhaps a nuke or two would have helped....]

Cheers,
 

This thread seems to exemplify the problem with any kind of "originalism." First, the envisioned resistance against Federal tyranny was seen as one by "states" against the Federal government - they were the ones empowered to raise and organize the militias (according to congressional discipline) recognized by the second amendment. So, the vision would be of states having sufficient military force to check the federal army; but the civil war clearly but implicitly changed the constitutional order. So how can one have any originalist meaning, when the context has changed so radically, from a confederacy where a large portion of the military command was at the state level, to one where the federal government, in practice, has a monopoly on military force?

Then there is the deeper point - why assume that there was an original meaning to a clause in the constitution. By this, I mean that the constitution was a negotiated document. Any negotiated document has ambiguities built in intentionally by the signing parties where they disagree, hoping to later take advantage of it. The vision of Hamilton was not the vision of Jefferson's supporters. Multiple issues were probably at stake in the second amendment, ranging from the individual's right to bear arms in light of Cromwell's revolution, where aristocrats directly enforce law by their monopoly on swords, to the state's right to resist the central government.
 

No judge in the country -- and certainly no court -- will ever recognize any assertion of a Second Amendment right based on the notion that gunowners must have sufficient force at their disposal to threaten the police power of the state.

Quite right! And, in fact, the Constitution not only authorizes the use of the militia to supress insurrection (but not to engage in it!), the Federalist Papers also defend the use of the Federal government to suppress insurrections. And then there is the matter of the Whiskey Rebellion, which took place with the ink barely dry on the Second Amendment, but no one, not even the whiskey rebels themselves, ever claimed it was a lawful exercise of Second Amendment rights.


EL,

You're examples are of insurrections against the states by sub-state actors. That is essentially different from insurrections by the states themselves. The Federalist papers are quite clear that one of the advantages of a stronger federal government is as defense against internal insurrection, but they also argue that the danger of federal tyranny is the independence of the states. I would advance that the 2nd amendment was intended to safeguard state sovereignty against the federal government.

It seems to me pretty obvious that the federal army was expected to be fairly small, and kept small by the limitation that all appropriations would be limited to two years. The spirit of such a requirement would limit the ability of congress to do such thing as fund multi-year projects, such as overseas bases, etc. The main force was supposed to be the state militias - when force was required, congress would call up the state militias to defend against invasion or insurrection. That is how our military worked in practice through the civil war, and to a certain extent before WWI.


Let's see, here are the relevant clauses:
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

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

...

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

...

The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.


A plain reading of these seems to show what I'm saying. I'm not arguing that we should have such a system - and we clearly currently do not. What I am saying is that it is impossible to interpret the 2nd amendment in any sensical way, since it belongs to a constitution that was abrogated more than a century ago.
 

If you look at the Articles of Confederation, you will see section upon section about the organization of militias, their calling up, their leadership, etc. etc., compared to the relatively few, sparse paragraphs about the military in the Constitution. Is it at all historically defensible that the 2A is only a guarantee that the militia will be an organism of the states rather than the federal government, hence supporting the collective view?
 

... the fourth right stated in the Declaration of Independence "it is the Right of the People to alter or to abolish it." If one admits to a framers' intent analysis, a discussion of any nexus between this right and the 2nd amendment needs discussing.

Does it? The People can "alter" their gov't by the amendment process.

That probably would not work for abolition ("The United States of America is hereby dissolved"?), but if you're out to ABOLISH THE GOVERNMENT, you probably don't care what the pesky Second Amendment says, anyway.
 

I support the right to self-defense and gun-ownership. Nonetheless, I think arguing over the constiution is silly. That piece of paper allowed the genocide of the indians, the slavery of the blacks, the oppression of women, etc. As far as freedom is concerned, it hasn't done well.
 

Haller,

Did not the drafter of the DI say that
"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

Not saying that that's practical, but it clearly seems that the nexus between armed struggle and the 2nd amendment is not ahistorical.
 

RF,

Federalist #26: "From the same source, the people of America may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace."
...
"The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence."

#45: "The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add, of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive."

#46: "Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. 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. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of."

The federal government was to limit the military power of the states, to avoid internecine war, and to keep the center of military integration far from the people, so that they would be "jealous" of it; but that does not imply that the states were to be kept helpless and completely subordinate to the federal government. In the eighteenth century view, state patriotism would trump national patriotism. The only standing army would be the federal army - but it would be small compared to the actual defensive army, which would primarily be a state function.
 

What is there in the logic or language of the 2d A which precludes that interpretation?

What is there in the logic or language of the Second Amendment that demands it or permits it? I don't see the words "nuclear warhead" in the Second Amendment.
 

What is there in the logic or language of the Second Amendment that demands it or permits it?

You're dodging. What does the word "arms" mean and why?
 

I find it puzzling why anyone would think that the Founders did not mean the 2d Amendment to allow an armed citizenry to use their arms against a tyrannical government. These men were revolutionaries who were just several years fresh from a successful uprising of an armed citizenry against the finest army in the world.

Moreover, this concept of an armed citizenry is still very viable today. I would side with the over hundred million armed citizen against our half million man army. Our military would be lucky to control government property in the event of an uprising. The rest of the United States would belong to the citizenry in an uprising. The battle would not be a matter of the firepower of a soldier compared to a citizen, but rather too few men to control too much territory filled with too many armed citizens.

The British in the Revolution never really had a chance unless our morale broke. They could not begin to occupy the enormous amount of territory covered in the Colonies with half the troops we have in Iraq right now. When the British left an area, the armed revolutionaries simply took over again.

Next, the militia at that time meant everyone considered to be full citizens. Thus, there was no real difference in the scope of the "militia" and the "people."

Moreover, using arms for self defense was hardly an alien concept at the time. The armed citizenry of that day would use their arms for self defense at every scale from defending the homestead to fighting in the militia against criminal gangs, Indians, rebellions and invading foreign armies.
 

Scott,

Think it through before you make a comment like that. The Constitution has been extraordinarily successful "as far as freedom is concerned," as you say. For every clever example you can come up with of the Constitution's failure throughout our history, we can come up with hundreds of examples every day throughout our history where it's created, protected, and advanced freedom. Under every possible scenario your argument loses. Sorry....
 

No judge in the country -- and certainly no court -- will ever recognize any assertion of a Second Amendment right based on the notion that gunowners must have sufficient force at their disposal to threaten the police power of the state.

This from New Hampshire:

[Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

It would make an interesting defense.
 

"Bart" DePalma:

I find it puzzling why anyone would think that the Founders did not mean the 2d Amendment to allow an armed citizenry to use their arms against a tyrannical government.....

Uhhhhh, "Bart": Clue for you. When it gets to the point where an amed citizenry (and woe be to the individual that tries it on their own) has a legal and moral right to use their arms against a tyrannical gummint, the Second Amendment ain't worth a bucket of warm spit anyway. We're talking "off the map" territory, and the roads our there aren't marked off by the Constitution.

Cheers,
 

"Bart" DePalma says, "OK, guys, follow me!" and runs off to battle:

Moreover, this concept of an armed citizenry is still very viable today. I would side with the over hundred million armed citizen against our half million man army.

"Bart" is of the delusion that these "hundred million citizen[s]" will all be following his patriotic charge, rather than the much more likely half of them lining up their sights on him coming over the hill. Therein lies the 'difficulty' with "Bart"'s 'politicla theory'....

Cheers,
 

Clueless "Bart":

The British in the Revolution never really had a chance unless our morale broke. They could not begin to occupy the enormous amount of territory covered in the Colonies with half the troops we have in Iraq right now. When the British left an area, the armed revolutionaries simply took over again.

Ummmm, Bart... <*psssst*> hey ... BART!

Care to apply that 'reasoning' appropriately to more current events?!?!?

Cheers,
 

dryki:

[Prof. Lederman]: No judge in the country -- and certainly no court -- will ever recognize any assertion of a Second Amendment right based on the notion that gunowners must have sufficient force at their disposal to threaten the police power of the state.

This from New Hampshire:

[Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.


The two are not inconsistent.

Cheers,
 

Random Sequence:

You're examples are of insurrections against the states by sub-state actors. That is essentially different from insurrections by the states themselves. The Federalist papers are quite clear that one of the advantages of a stronger federal government is as defense against internal insurrection, but they also argue that the danger of federal tyranny is the independence of the states.

Believe it or not, I agree with this interpretation. Though the Federalist Papers contain numerous passages condemning "insurrection," "rebellion" and "sedition," they do affirm the right of revolution. But they never expressly define the difference between a true revolution, which deserves to succeed and a mere "insurrection," "rebellion," or "sedition," which deserves to be crushed. (Except that Shays' Rebellion was definitely not a legitmate revolution).

Reading between the lines, I think the distinction is exactly what Random Sequence says. In No. 28, Hamilton affirms the right of revolution, he speaks of the states leading it and how such leadership will be more effective than if the people "rush tumultuously to arms, without concert, without system, without resource except in their courage and despair." In No. 29, Hamilton defends a select militia, saying that there is a trade-off between quality and quantity in any military force and that a select militia will still be citizen-soldiers, but more effective. "[I]f circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their own rights and those of their fellow citizens." RS has already quoted Madison's affirmation of the right of revolution in No. 46, which clearly envisions a revolution as being fought by organized militias and led by the states. ("officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.")

I think it fair to say that the Federalist Papers regard a legitmate revolution as one fought by the organized militia and led by the states, and a revolt by every man and his gun as both illegitmate and ineffective.
 

It seems to me there is a critical point to be made in the debate as to whether the right to keep and bear arms is individual or collective. Whether it is an individual or collective right should depend whether the underlying purpose is individual or collective.

The right to personal self-defense against criminals is an individual right. If this is what the Second Amendment protects, then gun ownership should be an individual right. But I would say that right can be limited to the kinds of weapons (mostly handguns) that people would use in self-defense.

The right of resistence against tyrannical government is a collective, not an individual right. If that is the purpose of the Second Amendment, it would logically seem to follow that the right to bear arms is also a collective right. It would include the right of access to military style weapons, but only in the context of militia service. In the 18th century, this would mean having a small regular army and universal state militias. In today's context, it would mean a system more like Israel or Switzerland -- a universal two-year draft, followed by 20 years service in the reserve, or a similar system, meant to guarantee the army could not oppress the citizens because they are one and the same.

What I find worrisome are people who insist that the Second Amendment guarantees a right to universal, unrestricted individual access to military weapons to safeguard the collective right of revolution.
 

If our high court were ever to assert the right to arms to be only a right of the State we would at that point no longer be a nation of free people. We must have tolerance for the possibility of occasional weapons abuse. If we have no tolerance for weapons abuse by the people, if we can not tolerate a lack of absolute safety, then to be honest with ourselves we must erase the second amendment. We can not have assurance of freedom from weapons abuse for to so attempt would likely cause unacceptable levels of privacy invasion. We must be diligent in the task of keeping deadly force technology out of the hands of those who are intent upon its misuse. A responsible person will not abuse weaponry. That I may abuse my privately held military duty capable weapons is not sufficient excuse to legislatively disarm my fellow citizens. I can not guaranty I will now and forever be a responsible owner of the combat equipment I can afford to own. I must be disarmed when I am found to be an irresponsible weapons owner.
 

RandomSequence: Karl Jaspers once said of Nietzsche that, whenever one finds a striking thought in his writings, one should immediately begin seeking the contradictory striking thought elsewhere in N.'s writings.

Whether or not this is fair about Nietzsche, it very likely is true of Thomas Jefferson.
 

Arne Langsetmo said...

"Bart" DePalma says, "OK, guys, follow me!" and runs off to battle:

arne stumbles across an acorn.

"Follow me" is the motto of the infantry officer school at Ft Benning. And yes, I have used the phrase or its equivalent as a platoon leader in combat during the Persian Gulf War. If a dictatorship took over the country, I assure you that I would take up my own arms and use that phrase again.

BD: Moreover, this concept of an armed citizenry is still very viable today. I would side with the over hundred million armed citizen against our half million man army.

"Bart" is of the delusion that these "hundred million citizen[s]" will all be following his patriotic charge, rather than the much more likely half of them lining up their sights on him coming over the hill. Therein lies the 'difficulty' with "Bart"'s 'politicla theory'....


The Revolution serves as a pretty good template for how an insurrection of an armed citizenry would pan out.

Less than half of the citizenry rose in rebellion, fewer of the citizenry took up arms for the Crown and the remainder stayed out of the way unless the British invaded their colony, at which time they would take up arms in defense of the colony.

If a dictator took over our country today, I would expect less than half of the 100 million or so armed citizens to take up arms in rebellion. These rebels would still outnumber our military by a factor of between 50 to 80 to 1.

However, we armed rebels would have an advantage which our Revolutionary fore fathers did not - those of you big government types who are likely to support a Chevez style dictatorship have already largely disarmed themselves and have no idea how or inclination how to use a firearm if you kept one.
 

We must have tolerance for the possibility of occasional weapons abuse.

Up to a point, yes. At some level the abuse may be so great that the corresponding benefit is lost. Shouldn't states (or the feds, for that matter) get to decide where that point is reached?

To me, a militia only makes sense as an organized body. I don't think anyone the least bit familiar with 18th C attitudes would argue that the Founders believed that the "mob" was entitled to act on its own.

Organization means state control. If states decide that handguns are inappropriate and ineffective as militia weapons -- and that's a reasonable conclusion IMO -- then they should be just as free to ban individual possession of those as they are rocket launchers.
 

zak:

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.

 

Bart,

However, we armed rebels would have an advantage which our Revolutionary fore fathers did not - those of you big government types who are likely to support a Chevez style dictatorship have already largely disarmed themselves and have no idea how or inclination how to use a firearm if you kept one.

Just in case anyone blinked and missed it, we "big government types who are likely to support a Chavez style dictatorship" are not the one defending the President's authority to warrantless domestic wiretaps, indefinite detention without charges, "coercive interrogation," prosecution of opposition journalists, and other dictatorial powers.

Nor do we share your conviction that brute force is the only option. The entire point of the separation of powers, an independent judiciary, Congressional oversight, a free press and the like is to curb government abuses before they reach the point that would justify a revolution.
 

Enlightened Layperson said...

Bart: However, we armed rebels would have an advantage which our Revolutionary fore fathers did not - those of you big government types who are likely to support a Chevez style dictatorship have already largely disarmed themselves and have no idea how or inclination how to use a firearm if you kept one.

I wondered if this would get a rise out of anyone...

Just in case anyone blinked and missed it, we "big government types who are likely to support a Chavez style dictatorship" are not the one defending the President's authority to warrantless domestic wiretaps, indefinite detention without charges, "coercive interrogation," prosecution of opposition journalists, and other dictatorial powers.

You are confusing my proposed use of the armed citizenry to defend the rights of citizens from a dictator and the defense of many here of treason and foreign enemies. The enemy does not enjoy our rights, nor should they.

Nor do we share your conviction that brute force is the only option. The entire point of the separation of powers, an independent judiciary, Congressional oversight, a free press and the like is to curb government abuses before they reach the point that would justify a revolution.

Who said that rebellion was the only option. It is the last option, although a necessary one.
 

I am curious...

Who here owns and uses firearms?

I do both.
 

"Bart" DePalma:

["Bart"]: Moreover, this concept of an armed citizenry is still very viable today. I would side with the over hundred million armed citizen against our half million man army.

[Arne]: "Bart" is of the delusion that these "hundred million citizen[s]" will all be following his patriotic charge, rather than the much more likely half of them lining up their sights on him coming over the hill. Therein lies the 'difficulty' with "Bart"'s 'politicla theory'....

["Bart"]: The Revolution serves as a pretty good template for how an insurrection of an armed citizenry would pan out.

Less than half of the citizenry rose in rebellion, fewer of the citizenry took up arms for the Crown and the remainder stayed out of the way unless the British invaded their colony, at which time they would take up arms in defense of the colony.


The Revolutionary War was by no means an assured thing. It could have gone either way. And there certainly were Tories and Tory sympathisers. That harldy props up your scenario below.

If a dictator took over our country today, I would expect less than half of the 100 million or so armed citizens to take up arms in rebellion. These rebels would still outnumber our military by a factor of between 50 to 80 to 1.

"Bart" neglects those that might support or even have voted for this "dictator". "Bart" is of the curious opinion that "dictators" arise sui generis like Athena from the forehead of Zeus. Not true. But a typical hallucination of the authoritarian RW.

However, we armed rebels ...

Wow. "Bart" fashions himself some kind of Luke Skywalker, the Force With Him as he strides into combat....

... would have an advantage which our Revolutionary fore fathers did not - those of you big government types who are likely to support a Chevez style dictatorship ...

Clue for "Bart" here: Chavez has been elected and re-elected by the citizens of Venezuela. It was the U.S. that gave "a nod and a wink" (if not more overt support like that navy vessel stationed off-coast) to the coup attempt on Chavez a while back. Not to mention, Chavez is far more popular with his people than Dubya is....

But speaking of "big gummint" types, "Bart" has his head so far up Dubya's ____ that he's ticklng Dubya's uvula.

... have already largely disarmed themselves and have no idea how or inclination how to use a firearm if you kept one.

"Bart" has other hallucinations as well, IC. Those misperceptions may come back to bite him if push comes to shove.... And I'll simply not comment on "Bart"'s seeming preoccupation with the "size of the pistol you pack".

Cheers,
 

"Bart" DePalma:

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.

Oooops. My bad. Should have put on reading glasses. I see it now:

"An unorganized militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

I won't let it happen again.

Cheers,
 

"Bart" DePalma:

You are confusing my proposed use of the armed citizenry to defend the rights of citizens from a dictator and the defense of many here of treason and foreign enemies.

Who here has "defen[ded] ... treason and foreign enemies"?

I want names ... and evidence. We'll turn 'em over the the DoJ for prosecution.

Or is your second example just as hypothetical and counter-factual as your first?

Cheers,
 

RW "thinking":

["Bart"]: It is the last option, although a necessary one.

The "last option" is always "necessary". Which is why the RW foamers use it so often.

Cheers,
 

"Bart" DePalma:

I am curious...

Who here owns and uses firearms?


Not tellin'....

Cheers,
 

You are confusing my proposed use of the armed citizenry to defend the rights of citizens from a dictator and the defense of many here of treason and foreign enemies. The enemy does not enjoy our rights, nor should they.

And you are assuming that our President, once given these powers over alleged enemies and traitors will never, ever abuse them to personal advantage, cross his heart and hope to die. And I have to wonder when the Second Amendment types shoot their way into power, just how many other enemies and traitors they will find to deal with.

Some trouble maker once said, "I am getting a gun to protect myself from the NRA."
 

Did y'all know that one of Chavez's big projects has been forming local armed militias by giving training and firearms (kept at home) to the poor? Chavez is a big fan of protecting Venezuela's freedom by directly implementing the second amendment through state grants.

From the BBC: Chavez's 'citizen militias' on the march
But retired General Alberto Muller, a military analyst who is close to Chavez government officials, says Venezuela's new reserve is similar to the US's own Army Reserve and civilian forces in many nations.

"The ideal would be like Switzerland, where every citizen has his weapon in his home," Mr Muller says.

 

EL,
I think it fair to say that the Federalist Papers regard a legitmate revolution as one fought by the organized militia and led by the states, and a revolt by every man and his gun as both illegitmate and ineffective.

So, given that the states today are effectively just administrative units without real sovereignty, is the 2nd amendment in that context just gibberish? The National Guard is not the militia of the 18th century - they are in practice reserve military units of the federal army, not independent armies integrated by the federal army.

We know that from the response of Missisipi to integration - if the states had significant sovereignty as in the Federalist papers, the militia would have confronted the army, the resisters in Oxford would have pushed out the federales, and we would have had an even more severe crisis.

Even without that, we know that in practice Americans in general are loyal to the country, not their states, which pretty much blows out all the logic of the Federalist papers which depend on state independence to counter-balance the Federal advantage. Their are hints that some of the authors were hoping for that end (I'm talking to you Hamilton), but I doubt that was the system that most of the ratifying parties and states held to.
 

"randomsequence":

Even without that, we know that in practice Americans in general are loyal to the country, not their states, which pretty much blows out all the logic of the Federalist papers which depend on state independence to counter-balance the Federal advantage. Their are hints that some of the authors were hoping for that end (I'm talking to you Hamilton), but I doubt that was the system that most of the ratifying parties and states held to.

The Federalist Papers were (as was the DoI) a polemic; to large extent a "sales job", and tailored for that purpose. What they said there with absolute assurance and earnestness, I don't think you can count on them having in mind as their own personal opinion in their more cynical moments....

Cheers,
 

Shag from Brookline said...
So, is there a presumption that a person keeping and bearing arms is a responsible person? ... What would (or should) be the criteria for overcoming such a presumption?

The Brady Bill style waiting periods and associated background check takes a pretty good stab at determining the weapon is not being delivered directly to a less than trustworthy individual.

The Constitution shall never be construed to authorize Congress to prevent the people of the United States, who are peaceable citizens, from keeping their own arms. -- Samuel Adams, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87 (Pearce and Hale, eds., Boston, 1850)


Mark Field said...
...the abuse may be so great that the corresponding benefit is lost. ... If states decide ...they should be ... free to ban individual possession of ... rocket launchers.


From Wikipedia: "for the (FIM-92 Stinger) missiles themselves, the unit price would be about USD $165,000"

I would not invest the funds required to purchase a Stinger on the off chance a lunatic in a gunship might attempt to disrupt my family mid-day meal. If we citizens had made the effort to maintain our local (then evolving into neigborhood) militias, sharing the cost of such a device could make some sense but as it is now we have delegated the responsibility for defense to various government entities because being prepared for attack is hard work and the odds of ever getting a return on that investment would be extraordinarily poor. Can you imagine how bad a target we would make if we had maintained our militas into modern times? Our enemies armies would be better advised to run in circles shaking hornet's nests in their underwear.

"You cannot invade the mainland United States. There would be a rifle behind every blade of grass." Admiral Yamamoto - 1941

Yamamoto knew we americans all across the nation were using military rifles for community level shooting competitions in the years following WWI. Unfortunately we have been long dismantling our local weapons training capacity. The range in the basement of my highschool where I received rifle lessons was converted to a storage room in the mid-60's. We citizens are now too busy using our economy to crank out the bacon to have the time to get serious about our founders desire that we be armed.

A free people ought...to be armed. -- George Washington, speech of Jan. 7, 1790 in the Boston Independent Chronicle, Jan. 14, 1790.

"The things that will destroy America are prosperity-at-any-price, peace-at-any-price, safety-first instead of duty-first, the love of soft living and the get-rich-quick theory of life." Theodore Roosevelt
 

Arne,

I don't have the background to know their level of cynicism, though I wouldn't at all be surprised that you are right about that - that there was an aristocratic agenda behind the snow job. But that doesn't change the fact that the meaning of the document agreed to by folks in the 18th century was in light of those arguments. If the logic of the arguments is no longer applicable, in what sense is the Constitution being "interpreted"?

From a non-lawyerly view, all the parties to this debate are playing a game of tea-leaves or I Ching. Once the context that gives a document meaning is gone, once the logical underpinnings of it has worn away, what do you have but sophistry, from both/all sides? Originalism is then simply another sleight of hand, since there doesn't exist an original meaning that is applicable.

What you have now is a system of common law, not Constitutional law as originally intended. Under any interpretation, jurists are forced to make up the constitution as they go, whatever fig leaf they use to cover their act. The most basic is that the constitution is written in terms of interplay between sovereign states and the federal government - but sovereignty for the states no longer exists, except as jargon (I guess "term of art" is what lawyers say).

There's the old joke about the New England carpenter who has had the same hammer for 30 years - he's changed the head 10 times, and the handle 5 times, but it's still the same hammer.
 

Another valid question is, since the Federalist Papers were written before the Second Amendment was even proposed, how persuasive should they be in interpreting it?
 

Fortyfied:

From Wikipedia: "for the (FIM-92 Stinger) missiles themselves, the unit price would be about USD $165,000"

Wait till Toyota (or Hitachi) gets ramped up. We have $700 hammers @ MILSPEC, but for moderate climates without the need for such specs, and with mass production and multiple sourcing, I'm sure the price will come down enough for "a chicken in every pot, a Stinger in every garage".

Cheers,
 

fortyfied:

"You cannot invade the mainland United States. There would be a rifle behind every blade of grass." Admiral Yamamoto - 1941

You'll note that there was never any plan for such an invasion. Conversely, we thought differently about invading Japan as well, but by that time, the Japanese were reduced to arming the locals with sharpened sticks in places.

Cheers,
 

fortyfied:

We citizens are now too busy using our economy to crank out the bacon to have the time to get serious about our founders desire that we be armed.

You will note that when the rubber hit the pavement in the 40's, the whole country got together and did convert to an "arms economy". Do you seriously think we need to do such now? If so, why?

Cheers,
 

You're dodging. What does the word "arms" mean and why?

No, you're dodging. You're the one claiming that "arms" = personal use nuclear warheads in your backyard. You explain why that is so.
 

Arne Langsetmo said...
You'll note that there was never any plan for such an invasion.


Really... I wonder why not ... pfft
 

Arne,

Prof. Lederman said Kozinski's Warsaw ghetto example was absurd and offensive. My point was only to show that it is not absurd nor is it offensive: it refers to the dignity and honor of armed resistance, even if doomed to fail and the deterrence value of armed resistance even if asymmetric and of lower technological sophistication. I did not argue the ahistorical point that you suggest.
 

randomsequence:

What you have now is a system of common law, not Constitutional law as originally intended. Under any interpretation, jurists are forced to make up the constitution as they go, whatever fig leaf they use to cover their act.

The Constitution describes but one crime, and that to limit its scope. Absent the statutory regime we've built up, it was all "common law" to begin with. The Founders were neither unfamiliar with it nor afraid of it. Even statutory law is subject to interpretation; no statute can predict the myriad and wonderful twists and turns we can manage to accomplish in fact situations though our ovn deviousness and/or ingenuity. I think that the extent of disagreement on the Constitution is overstated; you never hear of the non-disputes where everyone is on the same side, and it's only when the disagreements get the loudest and most acrimonious that the general public even sees the influence of the Constitution on everyday law. As such, to consider it fatally flawed for overgenerality and vagueness and subjectivity is a disservice.

Cheers,


Cheers,
 

mortimer brezny:

Prof. Lederman said Kozinski's Warsaw ghetto example was absurd and offensive. My point was only to show that it is not absurd nor is it offensive: it refers to the dignity and honor of armed resistance, even if doomed to fail and the deterrence value of armed resistance even if asymmetric and of lower technological sophistication. I did not argue the ahistorical point that you suggest.

If it's "dignity" and "honor" you're after, pistols are not essential. But I thought the topic was the practical aspect of firearm ownership. You know, kind of like this sentiment: "[Mortimer]: Simple firearms are all it takes to deter tyranny."

Cheers,
 

You're the one claiming that "arms" = personal use nuclear warheads in your backyard. You explain why that is so.

It uses "nuclear weapons" in the same sentence it uses "revolvers" and "automatic rifles". I accept your surrender.

Another valid question is, since the Federalist Papers were written before the Second Amendment was even proposed, how persuasive should they be in interpreting it?

From an historical POV, it's useful for understanding how they saw a militia.

I don't have the background to know their level of cynicism, though I wouldn't at all be surprised that you are right about that - that there was an aristocratic agenda behind the snow job.

It's not so much that, it's that both Hamilton and Madison had serious disagreements with the actual text. They decided to let those go and defend the document as written despite their personal disagreements. They were, in that sense, making a lawyer's argument, not a personal one. IOW, the fact that they said something doesn't mean they personally believed it; they might have, or they might have just thought the argument would be persuasive to their audience.

I tend to agree with the rest of your post.
 

Arne,

I actually wonder if the greatest drift isn't where there's acrimony, but where there's not. For example, no one seems to seriously doubt that the Congress and President can send the national guard oversees as part of an invasion; or that congress can in effect fund 10 or 20 year military projects. Both would seem to be against the spirit of the document in question.

These things are hard to see precisely because we all agree to see things that aren't there, except for a few social misfits - that's the nature of cultural truths. But it does lend to these almost magical discussions of things like the 2nd amendment, where the illusory character of the enterprise comes out in sharp relief, and we descend toward sophistry.

In some cases, it really may be a benefit of our system that the consensual, democratic or oligarchical processes that lead to our actual Constitution (as opposed to the preserved document) are lent an aura of the sacred by the illusion of the document. On the other hand, this process also lends to dismantling certain essential rights by keeping the form and not the substance; just see some of the arguments in the habeas thread, by that paragon of mysticism, the Bartman himself. We also get absurdities like the John Bolton UN Ambassadorship, and Congress waiving its duty to declare war, all without proper public discussion.
 

RandomSequence:

I actually wonder if the greatest drift isn't where there's acrimony, but where there's not. For example, no one seems to seriously doubt that the Congress and President can send the national guard oversees as part of an invasion; or that congress can in effect fund 10 or 20 year military projects. Both would seem to be against the spirit of the document in question.

Well, yes, I see your point and I tend to agree with you on these. But then again, my interpretation of the Constitution wasn't always "mainstream" either; there were certainly other aspects of law that I thought beggared the imagination WRT whether the Constitution could be said to admit such. I chalked much of it up to "realism", "pragmatism", or "a living Constitution" (or combinations of these). Some of the changes, I think, might be for the better, and some for the worse, but I can understand that others might have had different priorities or reactions. Which might explain a bit of why the law and I sued for an uncontested (if less than amicable) divorce.

But the bottom line is that if such-and-such is the widely accepted interpretation of the Constitution, well, then yes, that's what it means, certainly from a practical standpoint and arguably also from a theoretical one. And certainly within the constraints of laws school and training to be a practising lawyer, that interpretation is the one you need to keep in mind; only the patience of Job (or some earhshaking upheaval) will get you the changes that you'd like to see; arguing a "settled point" in front of a committe of nine with at least a nominal regard for stare decisis is likely to be frustrating at the very least.

Cheers,
 

Me: You're the one claiming that "arms" = personal use nuclear warheads in your backyard. You explain why that is so.

Mark Field: It uses "nuclear weapons" in the same sentence it uses "revolvers" and "automatic rifles". I accept your surrender.

You are living in a world of delusion if you believe that I have surrendered a thing. But I have noticed that your argument has shifted from the claim that "arms = right to own and store in one's home nuclear warheads" to the claim that "arms = absolutely nothing".

Arne,
Dignity and honor are necessarily a part of the Warsaw ghetto uprising and dignity and honor are practical needs in the face of certain death. I would also note that the sentence you quote refers to the deterrence value of armed resistance, so I did not make the omission, or the turn, you imply I did.
 

Mortimer Brezny:

Arne,
Dignity and honor are necessarily a part of the Warsaw ghetto uprising and dignity and honor are practical needs in the face of certain death. I would also note that the sentence you quote refers to the deterrence value of armed resistance, so I did not make the omission, or the turn, you imply I did.


I think that my previous comments stand on their own. If you were intending on saying other than what I said you said, I think you were being unartful. But glad we've come to agreement.

Cheers,
 

"The Constitution describes but one crime, and that to limit its scope. Absent the statutory regime we've built up, it was all "common law" to begin with."

The Constitution didn't need to define much in the way of crimes, because the general police power was one of those powers, per the 10th amendment, reserved to the states. And the states already had systems of law, yes, including statutory law, built up prior to the Constitution. We weren't starting from a blank slate.
 

The Constitution didn't need to define much in the way of crimes, because the general police power was one of those powers, per the 10th amendment, reserved to the states. And the states already had systems of law, yes, including statutory law, built up prior to the Constitution. We weren't starting from a blank slate.

The Founders certainly didn't carry that out to its logical conclusion. The first few Congesses adopted quite a few criminal laws.
 

brett:

The Constitution didn't need to define much in the way of crimes, because the general police power was one of those powers, per the 10th amendment, reserved to the states. And the states already had systems of law, yes, including statutory law, built up prior to the Constitution. We weren't starting from a blank slate.

Some states adopted the English common law by statute; others simply implicitly.

As to "the general police power was one of those powers, per the 10th amendment, reserved to the states": Where? It is generally true in fact, but I'm not convinced it was constitutionally mandated. Limitations on the federal police power come more from the general limitations on federal power WRT legislation to begin with; certainly anything they can legitimately enact legislatively, they also have the power to enforce by appropriate criminal provisions. I'd note also that the fact that they limited the definition of "treason" is a tacit acknowledgement that there are some crimes that are of a intrinsically federal nature and within the power of Congress.

But to keep things from veering off track too much: May I point out that the common law is at least as much civil as criminal? While the Constitution prescribes only one crime, it has no UCC provision (for instance) at all.

Cheers,
 

I am of course aware of Erie v. Tompkins and the "death of federal common law". But that was hardly the case at first.

The larger point I was trying to make, but which we seem to be strayng away from, is that the Constitution wasn't ever considered to be the "be-all and end-all" of jurisprudence, and that in fact most cases are resolved without reference to the Constitution at all (a sad fact that nudged me away from giving up a day job to become a professional Constitutional scholar).

That the Constitition is not the ultimate arbiter to every dispute may be disquieting to some who yearn for predictability and finalty (or even guidance), but if all an aspiring 'lawyer' ever needed was a ten page document in her back pocket, many of the people on this blog would find their livelihoods at risk....

Cheers,
 

Arne: I think that my previous comments stand on their own. If you were intending on saying other than what I said you said,

No, this is just more intentional distortion on your part. Your comments had no substance. And your attempt to distort my comments makes no sense because dispositive contrary evidence is evident in the very sentences you are "interpreting". Why can't you simply admit that you made a tasteless joke about victims of the Holocaust and leave it at that?

We do not agree at all. I do not think it is appropriate to make fun of victims of the Holocaust, nor do I think Marty Lederman was correct to criticize Kozinski's Wrasaw ghetto example. Nor do I think any of your comments were relevant to the discussion. It seems like you were just looking for an opportunity to laugh at murdered Jews.
 

Arne: I am of course aware of Erie v. Tompkins and the "death of federal common law".

This is just more proof of the lack of care with which you read, think, and articulate your thoughts. You cannot be aware that Erie was the death of federal common law, because it was not. Erie was the death of general common law. Federal common law is alive and well. Look at maritime cases or disputes over waterways under the origial jurisdiction of the Supreme Court.
 

Instead of engaging in pathetic games of sophistry, read this: http://www.supremecourtus.gov/opinions/03pdf/03-339.pdf
 

shag from brookline:

If Erie was the death of "general common law" and not "federal common law" does that mean than under our federalist system here in my state of Massachusetts there is no common law anymore? That's kind of eerie.

"Eerie". I like that.

Mortimer is just as 'hasty' as I was. Erie v. Tompkins held "[t]here is no federal general common law." His reports on the 'death' of "general common law" are premature. I'd say that my description of Erie, if you want to get all nitpicky about it, was actually closer to the truth than his was (the word I omitted was far less important to the general gist of the matter than was his). I put the "death of federal common law" in quotes in part to indicate (but poorly communicated, I admit) that federal common law is only claimed to have died. As he notes, in cases of maritime law (where federal courts have original jurisdiction), federal "common law" may persist, as it does in the other exceptions to Erie. Erie stood for the proposition that federal courts couldn't ignore either state statutory or common law (as explicated by state courts even in the absence of statutes) and substitute their own "common law" judgement on such things as "standard of care", while sitting in diversity. I made no absolute pronouncement of the death of federal common law myself; I was just recognising that it had been circumscribed quite a bit (at least for certain situations) by Erie.

But no big matter; the throw-away comment about Erie was hardly any major pillar to what I had been saying about the adoption of common law into our legal system, or in fact to its persistence in the form of stare decisis and precedent to fill in the gaps even in statutory interpretation. The advent of the Erie regime has hardly made courts give up on the job of interpretation and the establishment of "new law" within out judicial system.

Cheers,
 

Arne Langsetmo said...
...convert to an "arms economy". Do you seriously think we need to do such now?


I wasn't attempting irony or sarcasm.

I like reasonable restrictions and good gun control; control that keeps the arms where they belong; in the hands of the good guys. I think the DC Court of Appeals has attempted to start the ball rolling away from the bad gun control DC has now, the kind that keeps guns away from the good guys.
 

Mortimer Brezny:

[Arne]: I think that my previous comments stand on their own. If you were intending on saying other than what I said you said,

No, this is just more intentional distortion on your part. Your comments had no substance....


If that's your opinion, skip them and move on.

.. And your attempt to distort my comments makes no sense because dispositive contrary evidence is evident in the very sentences you are "interpreting"....

Huh? Pardon me, but you're being even more opaque yet.

... Why can't you simply admit that you made a tasteless joke about victims of the Holocaust and leave it at that?

Ummmmm ... because I did no such thing?

We do not agree at all. I do not think it is appropriate to make fun of victims of the Holocaust,...

And that has what to do with the price of tea in Sri Lanka?

.. nor do I think Marty Lederman was correct to criticize Kozinski's Wrasaw ghetto example....

While I wouldn't have used the words "offensive", I do think there's something to be said for the "absurd" part: Regardless of how you choose to characterise the "honour" and "dignity" of dying with your boots on, it is a fact that armed resistance in the 1943 Warsaw ghetto uprising was crushed. From a practical aspect, the use of small arms hardly detered or thwarted the tyranny there (albeit the Nazis suffered some losses that they wouldn't have had there been no uprising). That's not to denigrate the honour and the courage of those in the uprising at all (as I said in my first comments on the subject). It's just to recognise that, practically, you won't always win because you have small arms (despite this comment of yours to the contrary: "Simple firearms are all it takes to deter tyranny." Hurt. Impede. Wound. But not "deter" or "overcome".

.. Nor do I think any of your comments were relevant to the discussion. It seems like you were just looking for an opportunity to laugh at murdered Jews.

I did no such thing. I think you need to calm down and take a deep breath. Nor have I suggested that the Jews in the Warsaw ghetto should have just submitted meekly to their fate (although it would be absurd for me to demand that they do otherwise). I think they did the right thing, and I applaud each and every one of them. But they are dead; a fact that cannot be glossed over in this discussion.

Cheers,
 

Arne,

You have only proven that you do not know how to read. If you look at the entire relevant portion of what I wrote, it is as follows:

Simple firearms are all it takes to deter tyranny. Certainly if your numbers are large simple firearms, one in the hands of each citizen will do. Six million Jews, each bearing one gun, might not beat back the Nazis, but it surely might make them think twice. One's weaponry need not be on par with the latest in techno-death wizardry to scare tyrants off or keep political squabbles from spilling over into streets stained with the spilling of blood.

I never suggested that deterrence necessarily means you will win in any particular case. Thus, the thrust of your criticism is irrelevant and snarky for no apparent reason. Try Midol.
 

Arne: But not "deter" or "overcome".

Deter and overcome are not synonyms and your entire reading of my post is infected with a belief that "to deter" and "to overcome" are materially equivalent. Is that too opaque for you? Do you see now how your comments are devoid of relevant substance?
 

It's just to recognise that, practically, you won't always win because you have small arms (despite this comment of yours to the contrary: "Simple firearms are all it takes to deter tyranny."

What does winning in every single case have to do with deterrence? You can deter tyranny without winning in every single case! Are you stupid?
 

And since when did practical mean categorical? I bet English isn't even your native tongue. Try a dictionary. Or an education.
 

Arne: I'd say that my description of Erie, if you want to get all nitpicky about it, was actually closer to the truth than his was (the word I omitted was far less important to the general gist of the matter than was his).

Not really. We were talking about federal courts. In federal courts, there is general common law and federal common law. The latter exists, the former was annihilated by Erie. You used the latter term, which was absolutely incorrect and shows you don't know enough about federal courts to have been a professional Constitutional scholar, as you claim. The reason I didn't say "federal general common law" is I wasn't talking about state courts or common law process in the abstract or across the entire judicial system and because Erie is plainly about the powers of federal courts, not the powers of state courts. But it is not about federal common law, as anyone who is qualified to be a professional constitutional scholar would know. So I'd say your description of Erie was totally inaccurate and very revealing of your profound ignorance, whereas I provided a citation to a current case that made very clear exactly what I meant.

You have little credibility, you misread things, you take sentences out of context, and you are ignorant of the relevant legal framework. Why should anyone listen to anything you have to say?
 

MOrtimer Brezny:

Time for a chill pill there, Mort.

... you don't know enough about federal courts to have been a professional Constitutional scholar, as you claim.

And you think I misread you.... Where have I ever "claim[ed]" to be a "professional Constitutional scholar"? Try picking the log out of your own eye, perhaps, and when the meds set in, maybe we can talk.

... because Erie is plainly about the powers of federal courts, not the powers of state courts.

On the contrary, Erie is precisely about the power of state courts. In the absence of any state statute or state court holding on an issue, the feds may indeed (and must) come to their own conclusions of law. When the state courts have spoken, though, the state court's holding is determinative.

...So I'd say your description of Erie was totally inaccurate...

It was a throw-away line (more of an OBTW, and not germane to the arguments I was making). I didn't "describe" Erie other than a off-the-cuff remark that it (at the very least) limited the role of common law in federal courts. How you can say that's "totally inaccurate" is beyond me .... outside of the fact that you've got a bug up your a$$ and wanted to get nit-pickety on something that I don't even want to argue with you, seeing no actual "case of controversy".

Now take that Midol ... or Haldol, perhaps.

You have little credibility, you misread things, you take sentences out of context, and you are ignorant of the relevant legal framework. Why should anyone listen to anything you have to say?

No. Here's "misreading". Do you see the difference?

But if you don't care what I have to say, then just move on. Others do care, and they're entitled to their own opinion.

Cheers,
 

Moritmer Brezny:

I bet English isn't even your native tongue. Try a dictionary. Or an education.

Not very perceptive (and certainly not very scholarly), are you? ;-)

Cheers,
 

Mortimer Brezny:

The reason I didn't say "federal general common law" is....

Let me guess: Because Erie actually said that? DO I win a prize?

Cheers,
 

Amdocs is blackmailing America's "leaders." That's why they're making such insane decisions: http://dinoberry.googlepages.com/home
 

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