If only this Court would demonstrate as much interest in defending the rights of citizens under the First and Fourth Amendments as it shows in defending our rights under the Second.
 

The Justice that writes the Court's decision to the effect that there is an absolute right of the individual under the Second (and Fourteenth) Amendment may go down in history as SCOTUS' "Quickdraw McGraw".

If such a decision might be considered as demonstrating a "living constitution," how many deaths might result from its implementation? Orwell might say, "Living is dying."
 

I would suggest that the shifting opinions of the court does not indicate that all of the justices are living constitutionalists, but rather reflects the balance in the court between living constitutionalists, originalists and those like Kennedy who are a bit of both at any given time.
 

If we took all nine justices back in time to hear exactly what the framers meant by the 2nd Amendment, the liberals would say "fine" to whatever the framers said and the conservatives would shrug and then decide the case however they wished.

I think that, JB, is the difference between the justices in this type of case. While both sides have their priors, those on the left do make an attempt to interpret the constitution. On the right they just try to make the constitution fit their viewpoint. It sounds the same, but I do believe the left has and always will have a bit more credibility.
 

Every justice on the Court deploys originalist rhetoric some of the time and living constitution rhetoric some of the time and other types of rhetoric (it isn't like these are the only two schools of interpretation) some of the time. Every one. Not just Kennedy.

The only thing is there's a lot of conservatives who have convinced themselves that this is not true, either because they don't read enough Supreme Court opinions or because they are just BS'ing.
 

A recognition of an individual's right to bear arms may significantly aid efforts to develop sensible gun regulation (not control).

The absolutist terms upon which the matter has been addressed accounts for the dismal failure of comprehensive regulation in this area (like cars, for example).

The utopians see a world without privately held weapons; the dystopians want everyone, including school children, to have their own sidearm. Gun advocates use the 'slippery slope' argument to defeat any regulation of guns at all. In fact, no right is presently as well protected by the federal government as a person's right to pack heat.

If we all were required to acknowledge that some right exists, these polar opposite views might be to some extent reconciled. I mean, no one, well almost no one, will oppose central registries, mandatory licensing and insurance, and 'rules of the road' for guns, if one's right to have the things is protected in law.

Or, maybe I'm dreaming again.
 

I fully expect SCOTUS to come down with a ruling that support the position that ..."the right to bear arms"... is an individual right. I am looking forward to seeing it will then handle the issue of my owning a 9mm pistol but not a 105 recoilless rifle. I have been told that I'm being ridiculous, but I am sure that if SCOTUS ignores this problem it will have to deal with it later. I know too many people who would just love to have a recoilless rifle, or an M60, not to mention full equipped and loaded out MilSpec HumVee. Shoot, I'd love to have a 3.7mm Hotchkiss rotating cannon.

If SCOTUS does not address the problem of the 2A referring to 'arms' and not 'guns' and 'arms' means a great deal more than just pistols and long arms. It also means canons, mines, spears, tanks, aircraft, and a even WMD. SCOTUS needs to deal with how owning guns is an individuals constitutional right but owning a cannon is not. It should make very interesting reading.
 

The conservatives have dropped all pretense of judicial restraint and federalism

Does a commitment to judicial restraint and federalism require that someone oppose the very application of the Bill of Rights to the states? Are all conservatives who fail to agree with Raoul Berger or Graglia therefore hypocrites?
 

Her column was depressingly predictable and lacking irony to boot. She suggested (w/o apparent irony) Dellinger wanted to make self defense ownership some second rate "penumbra" right (like privacy?)

She ignored the reason why gun rights was not directly (though Printz and Lopez dealt with it indirectly; seems notable to me) was that the right she said they wanted to 'create' was (like privacy) broadly accepted by the people. The D.C. ban is an outlier in its strictness.

[To guard against such excesses, we in part have judicial review. This isn't too controversial, is it?]

And, sorry, the justices aren't being blatantly "political" (in a bad way as she implies) here. They simply have strongly different views on proper division of power, so are concerned at different times respecting it. Thus, Scalia would invade state discretion in say an affirmative action but not an abortion case.

How tedious.
 

beau:

The Second Amendment grants an individual right to keep and bear arms. This implies that the arms must be able to be borne by an individual. The arms we are talking about are small arms, not crew served weapons or larger.

The inclusion of the premable clause means that one of the purposes for the right to keep and bear arms is to provide arms for militia duty. This implies that the small arms at issue should at minimum be suitable for military service.

Indeed, the Miller Court recognized this in arguing that a sawed off shotgun was not the type of arm carried in a militia. However, automatic rifles like the M16 are very much a standard military small arm. I imagine the Court will have fun trying to argue why a hunting rifle should be protected when an M16 should not, even though the M16 is more of a military small arm than a .22 caliber squirrel gun.
 

Does a commitment to judicial restraint and federalism require that someone oppose the very application of the Bill of Rights to the states?

There are good reasons to believe the answer is yes in the case of the 2d A.

As to judicial restraint, the Court has previously stated that the 2d A does not apply to the states (Cruikshank).

As to federalism, the states rights argument for control of the militia means that states should have control over "bearing arms" within their own borders.
 

Bart,
You have two good points here. If it is a man portable weapon, then that would include an M60 and a 51mm Mortar. As to the other point you show the classic wingnut, either side of the debate, in focusing on the issue of "small arms" and over looking the basic issues of how to make the decision work. How do you include some arms as constitutionally protected and other arms as not.

By the By the Miller Courts argument ..." that a sawed off shotgun was not the type of arm carried in a militia"... is less than accurate. While it is true that modern militias may not cary sawed of shotguns it was not always so, during the early part of the Civil War (yes I am a Unionist) several militia units did carried them. I make this point just to illustrate the problem facing SCOTUS and it can be summed up by a principle learned from my father:
"All generalities can be proven wrong in the specific, even this one."
 

One question Ms. Lithwick failed to ask is why Justice Scalia did not recuse himself from the case despite his having gone on a hunting trip with Dick Cheney without being shot in the face.
 

"There are good reasons to believe the answer is yes in the case of the 2d A."

I've yet to encounter any. Remember, the fact that a trained, professional sophist is capable of uttering an argument with a straight face doesn't make it a good argument.

Not only was the 2nd amendment modeled after a state amendment, today the great majority of states have analogs to the 2nd amendment in their state constitutions, often echoing it's language identically.

It can scarcely be paradoxical to incorporate a civil right against all the states, which most of the states already have independently decided to be subject to. Heck, most of the states' AGs signed onto an amicus brief for this case which asked the Court to incorporate it!
 

beau:

In order to get around extending the Second Amendment right to man portable explosives like small mortars through suitcase nukes, I believe that Supremes like the DC Circuit are going to limit the right to basic weapon types commonly kept by the People at the time of the Constitution, which means rifles, shotguns, pistols and perhaps cutting weapons as they have evolved today.

The question posed by the Supreme Court indicates that it is leaning in this direction:

"Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes."
 

which means rifles, shotguns, pistols

No, it means smooth bore muzzle-loading muskets.
 

Let me make sure I've got this clear: even though you think as a liberal that the Constitution ought to allow nearly unlimited gun bans, you interpret the Second Amendment as identifying a right that excludes it. So when the Justices look at a case and appear to be agreeing with you, it's a sign that they're responding to their political biases, because "of course" they don't share your reasoning; and if the Justices come to the conclusion you suspect, and which is consistent with a textual-Originalist interpretation of the Second Amendment, that will be a sign of "living constitutionalism."

I agree with much of your conclusion --- after all, the Court is composed of humans and not logic machines, so of course their reasoning will be affected by the feelings and previous experience --- but it worries me that it took 500 words of self-contradiction to get there.
 

If such a decision might be considered as demonstrating a "living constitution," how many deaths might result from its implementation?

Well, the evidence suggests it will be fewer than from the contrary.
 

JB,

Excellent assessment. Too bad so many of the commenters here can't abide your even-mindedness. (Ex., JC, who thinks liberals only, hearing arguments from the framers themselves, would suddenly reject any partisan, contrary aims. Please. If they heard it from a dead white guy, they'd suddenly become true believers?)

Thanks for a fine contribution, and some perspective. Both sides will benefit from taking these kinds of public policy arguments out of the courts and back to national and state legislatures. (And the court of public opinion.)
 

Bart:

The Constitution grants no rights, it is designed to be a limiting document on government powers. All rights are assumed to belong to the People; the Constitution merely lays out by what means and by how much a federal government may curtail those rights.
The fact is, this is the first time a case directly dealing with the 2nd Amendment has been argued before the USSC. Only one side showed for oral arguments when US vs Miller was before the court, and the government lied, stating that the firearm in question (a short barreled shotgun) was not used by the military when it was, in fact.
Beau: I suggest you read the Amendment closely. Notice the word "bear" in there. This would by definition leave out 106mm recoiless rifles, which are not one man portable.
Porcupine_Pal: If the current state of Federal 2nd Amendment protection is what you consider well protected, I would like to see what you consider an unprotected Right.
All we gun nuts ask is that you apply the same hands off attitude the rest of the Amendments enjoy. I don't need to pass an instant background check to purchase a printing press, nor do I have to fill out a form under penalty of 10 years and/or $100,000 fine if I falsify any information upon said form. I do not have to get a $200 tax stamp to obtain a printing press that prints more than one paper per pull of the trigger, and new presses that can, in fact, print more than one paper per lever pull are readily available to anyone who wants one. Are you getting my analogy yet?
As for your lists and training requirements, shall we mosey on over to the history books and take a look see to what happens to those who submit to such things? They are, in fact, a slippery slope, as Britain is so ably proving these days.
 

The exact words are "shall not be infringed."

Those words refer to a "right of the people."

And yet there are liberals who believe that right doesn't mean "to keep and bear arms".

If the Amendment said "A healthy woman being necessary to the well-being of a free state, the right of abortion shall not be infringed", there'd be NO DEBATE about it. At all. But because this involves guns, liberals get their panties in a twist.
 

Of course the second amendment only protects small arms--the right to own cannons is found in the privateering clause. How can Congress issue letters of marque and reprisal if no privately-owned ships carry naval artillery?
 

Porcupine Pal:

"No one, well almost no one, will oppose central registries. . . ."

You must not have met many of us NRA types. We don't want the National Instant Check System or the BATFE ever to compile a database of privately owned weapons. Those who "oppose central registries" include many thousands of us. Call us paranoid, but the right to keep and bear arms works better if neither criminals nor the government know who keeps and bears what.
 

Saying that the 2nd Amendment doesn't apply to modern firearms (only muskets) is like saying the 1st amendment doesn't apply to the internet.
 

diesel said...

Bart: The Constitution grants no rights, it is designed to be a limiting document on government powers. All rights are assumed to belong to the People...

I agree. Indeed, the use of the phrase "shall not be infringed" implies that that the right to keep and bear arms predated the Constitution.
 

> As to judicial restraint, the Court has previously stated that the 2d A does not apply to the states (Cruikshank).

Cruikshank said the same about the 1st A.

Of course there's a difference - the 1st A says that "Congress shall make no law."
 

notalawyer said...

Porcupine Pal: "No one, well almost no one, will oppose central registries. . . ."

The only possible reason for such a registry is to make government confiscation of the registered firearms easier. This is precisely what the Second Amendment guarantee is intended to prevent.

I will be damned if I tell the government what firearms I possess and where they are.
 

Saying that the 2nd Amendment doesn't apply to modern firearms (only muskets) is like saying the 1st amendment doesn't apply to the internet.

# posted by Sarah : 10:01 AM

Who said that the 2nd ammendment doesn't apply to modern firearms?
 

Equating taking the 2nd amendment at face value to the contortions necessary to see the stereogram that is the right to abortion is pretty pathetic.
 

Is it the phrase that "implies" or is it the originalist (of whichever variation) who "infers"? Let's get Garrison Keillor to recommend an English Major to respond. I can't wait to read the Heller decision to see if this implication or inference makes the case for an individual right that is said to have predated the Constitution.
 

I've yet to encounter any. Remember, the fact that a trained, professional sophist is capable of uttering an argument with a straight face doesn't make it a good argument.

As opposed to all those good arguments made by amateur sophists?

today the great majority of states have analogs to the 2nd amendment in their state constitutions, often echoing it's language identically.

Which might be a good argument if you're a living constitutionalist, but I was pointing out the original understanding. The only original Southern constitution which even mentioned the right to bear arms was that of NC, and I guarantee the it would never have ratified the Constitution if it thought that the federal government might enforce such a provision on behalf of its black residents, slave or free.

Cruikshank said the same about the 1st A.

And when the Court began to apply the 1st A to the states, it was criticized for "activism" and interference with "states rights".
 

Living Constitutionalists, Strict Constructionists, Originalists, Blackstonians, Absolutists; my mind's eye begins to fog over as these mendacious hair-splitters offer their self-righteous spin to one of the three pillars of the strength and life blood of our Liberty.
What our founders assumed, without conflict, was an inherent and God-given INDIVIDUAL right to own and use (keep and bear) arms of whatever design necessary to protect ones self, family, community and country from any perceived threat to life, liberty and happiness.
At that time it was universally understood and accepted. Case closed.
 

What our founders assumed, without conflict, was an inherent and God-given INDIVIDUAL right to own and use (keep and bear) arms of whatever design necessary to protect ones self, family, community and country from any perceived threat to life, liberty and happiness.
At that time it was universally understood and accepted. Case closed.

# posted by dbjack46 : 12:13 PM

If that's the case, they probably should have used that sort of language in the Constitution. Case back open.

By the way, I never realized that God was such a big fan of firearms. He has always seemed like more of a thunderbolts kind of creator to me.
 

Is God a gun dealer? Working both sides of the street? So someone out there thinks that the right of the individual to bear and carry arms is supported by natural law? So arms can be carried into Houses of God? Is there further justification under the free exercise of religion clause of the First Amendment to support this individual right under the Second Amendment? Who knows, one of the separate opinions expected to be filed in Heller may support this view. Praise the Lord and pass the ammunition and we'll all stay free, but perhaps dead.
 

"Gun advocates use the 'slippery slope' argument to defeat any regulation of guns at all."

Yes, Porcupine, you are dreaming. The assertion that we have no regulation of guns is beyond preposterous. To take a page from the much-overused car analogy, I don't have to pass a federal background check before I can lawfully buy a car.

And Beau, it actually is legal to own cannons in many places.
 

Bart DePalma :
I imagine the Court will have fun trying to argue why a hunting rifle should be protected when an M16 should not, even though the M16 is more of a military small arm than a .22 caliber squirrel gun.

Dude, the M16 IS a .22 caliber squirrel rifle.

Beau:
If SCOTUS does not address the problem of the 2A referring to 'arms' and not 'guns' and 'arms' means a great deal more than just pistols and long arms. It also means canons, mines, spears, tanks, aircraft, and a even WMD. SCOTUS needs to deal with how owning guns is an individuals constitutional right but owning a cannon is not. It should make very interesting reading.

In general the squishy center-left claims to want to eliminate firearm ownership to reduce violence and violent crime.

The kind of person who buys a surplus T33 is highly unlikely to use it to rob a 7-11. The owner of a MIG isn't going to use it to mug somebody.

The whining about WMDs and *very* expensive crew served weapons is a straw-man. Banning (real) WMDs (Nukes, Biologicals, and most chemical weapons) from private ownership would pass strict scrutiny with ease, and for the lesser WMDs (machine guns, and fully automatic firearms (two different sets of devices, an M16 is NOT a machine gun), grenades etc.) certain reasonable restrictions most certainly WOULD pass strict scrutiny. I'm allowed to own a printing press, but I'm not allowed to put a massive web-fed offset press in my basement and run a newspaper out of it, but I can buy an old platen press and print whatever I want on it. If I want to print a newspaper, I can rent or buy space in a commercially zoned area and do it there.

If I want to buy a tank, I have to have the resources to properly store it. If I want to have rounds for that tank I need to be able to store them safely, and shoot it safely. These are largely restrictions which, if reasonable, no one would disagree with.

There are a HUGE number of these sorts of weapons in civilian hands already, and they are >almost< never a social problem.

The social problem that the "liberals" wish to solve, the gun violence, the accidental shootings of children and such are NOT done by rather expensive buy, difficult to maintain (compared to a glock) and hella expensive to shoot crew served weapons, but by (mostly stolen) inexpensive pistols and shotguns, with the occasional rifle. We can argue over whether banning these sorts of things works etc., but you need to be honest, if you're interested in protecting the innocent from crime, then whining about people being able to buy and shoot a weapon that costs north of $3k to purchase, and hundreds of dollars to shoot (a M249 or M60 will go through a thousand rounds an hour *easily*, a single tank round would cost more than a lot of people make in a month) is disingenuous.

Outside of the smuggling industries (drugs, people, and at the time the NFA was written alcohol) people tend not to use heavy weapons for crime. They're too heavy. Once you get rid of them, there's just too little difference in the lethality
of, for example a semi-auto AR15 and a full auto M4/M16. A semi-auto Mac-10 is arguably more lethal than a full auto because it's more controllable (unless you just want to kill lots of people, in which case you're not really worried about legality, are you?

In order for us to have this discussion we all need to be up front about our intentions and goals.

I'm up front about believing everyone ought to own a gun and be able to use it. I mean, isn't that what Liberalism is about? Empowering the individual?
 

Here's what I remember from basic training as a draftee back in the spring of 1955 when issued my M-1:

This is my rifle,
This is my gun,
One is for shooting,
The other for fun.

When basic training was over, I returned my rifle. I've been quite pleased with what I was left with and the fun associated with it. And nobody got hurt. MAKE LOVE, NOT WAR.
 

        An excellent post, Mr. Balkin.  But I wish you'd explained why a disarmed citizenry is a "liberal" ideal.  I always thought "liberals" were in favor of liberty, and would thus support private ownership of weapons as a way of deterring tyrants.  (And please, no nonsense about the people being unable to overthrow the government using small arms, unless you are prepared to say at the same time that the insurgents in Iraq have never had a chance.)  I don't see how the liberal arguments in favor of an absolutist position on the First Amendment don't apply equally to the Second Amendment — unless, of course, your just lying about said principals.
 

Stephen, freedom of speech is a sine qua non of republican government. The right to rebel against tyranny is a fundamental human right, but it isn't essential for republican government -- by definition, it comes into play only when republican government has failed. Nor is it a Constitutional right; that's been clear since the time of the ratification.

I can't speak for other liberals, but I favor reasonable controls on guns because I believe in law and order, not self-help, as the appropriate remedies in republican government. And that's why, at the same time, I favor broad protection for free speech: it's that right which makes all others possible.
 

This comment has been removed by the author.
 

The way the blog has gone for the last few day illustrates just exactly the problem that will be facing SCOTUS. The problem with rulering that "bearing arms" is an individual right that is separate from the right to militias is in the details, and in the rhetoric that has accompanied the 'gun' debate. If SCOTUS is to avoid the judicial nightmare that is 'case by case' definition it need to come up with a set of rules or tests that can be easaly applied.

This is what interests me, can this SCOTUS create such a set of rules. If they can not we will be no better off than we are now, and we very well could be worse off. I truely fear that the courts will be stuck with attempting to define just what the words 'bear' and 'arms' and what the phrase 'bear arms' means.

Personally, I'd like to see SCOTUS come down with a ruling that the right to bear arms is an individual ring and that is applies to any and all weapons from the simplest hand Axe of the paleolithic to the most modern weapons systems under development. I be leave this is the only way to get the American people to face the issue and decide to rewrite the 2nd A. so that it makes some kind of sense and end this endless debate. I have little hope that this SCOTUS has the moral courage to rule this way.


On a personal note, I am a gun owner and I'd hate to have to give them up. For over 40 years now I've followed the asininity of the Great Gun Debate. As far as I have ever seen there are people on both sides of the question that will never be reconciled to anything but their position. Until these two sets of fanatics are told to sit down and shut up while the great middle create a solution nothing will be resolved.

So here is my challenge; what ever your position, give me a set of rules and/or tests that can be easily applied by lower courts. If you can't or won't, sit down and shut up.
 

Mark Field -- what I'm saying is that Jack Balkin seems to be trying too hard to say that all sides are equally guilty of political bias here. I don't see how that's so. If conservatives vote (say) to allow something like intermediate scrutiny of a Second Amendment claim here, that's not self-contradictory unless they have previously urged that the Bill of Rights cannot even apply to the states at all. Whereas liberals who refuse to apply the Second Amendment to the states at all are definitely in danger of self-contradiction, because normally they favor not only application of the Bill of Rights to the states but an extremely expansive interpretation (such that "free speech" = virtual child porn).
 

One of the things that liberals take for granted on the 4th amendment is that the 2nd amendment gives the 4th amendment some automatic protection. The police have an inherent incentive to at least pay lip service to your 4th amendment rights because of the possibility of getting shot if they don't do good police work. I'm not sure if you are aware of this, but the rate of using SWAT units for regular police work has gone up about 1,300% over the last 20 years and is still growing. Imagine how much worse it would be if there were no fear of the consequences of bad police work hitting the wrong home.

It's a liberal myth that the 2nd amendment protects your right to explosive devices like a RPG or nuclear bomb. In legal language, these are ordnance, not arms. You would have the right to own everything from a .22 to heavy machine gun under the 2nd amendment, but nothing more.

If you follow the 4th amendment issues today, you'll see a pattern that doesn't get talked about in the media about guns. Chances are, if someone harms you with an assault rifle, it will be some ninja-clad SWAT officer breaking down your door at 2AM over a minor drug offense, not your neighbor with his AK-47 (which ironically is not as dangerous compared to the average hunting rifle).
 

what I'm saying is that Jack Balkin seems to be trying too hard to say that all sides are equally guilty of political bias here. I don't see how that's so. If conservatives vote (say) to allow something like intermediate scrutiny of a Second Amendment claim here, that's not self-contradictory unless they have previously urged that the Bill of Rights cannot even apply to the states at all. Whereas liberals who refuse to apply the Second Amendment to the states at all are definitely in danger of self-contradiction, because normally they favor not only application of the Bill of Rights to the states but an extremely expansive interpretation (such that "free speech" = virtual child porn).

Fair enough. But if we agree that liberals generally favor an expansive version of the BoR (except, perhaps, the Takings Clause), then my experience is that conservatives generally favor a more restrictive interpretation (except, perhaps, the Free Exercise Clause). That leaves both sides with some potential inconsistency.
 

MikeT:

In legal language, these are ordnance, not arms. You would have the right to own everything from a .22 to heavy machine gun under the 2nd amendment, but nothing more.

Show me the legal definition of "ordnance" that makes a M60/M249/M2 different from a quad 90.

That makes a .50 caliber precision rifle an "arm", but a 20mm a piece of ordnance.

If the 2A preserves the stated right in order for the people to be able to defend themselves against a tyrannical government, or more likely to preserve a balance of power to prevent a government from becoming tyrannical, then it most certainly preserves the right to own whatever can be safely stored.

To restate my earlier post, if your intent is to reduce crime, machine guns and crew served weapons are irrelevant. If your purpose is to keep tools useful for insurrection out of the hands of citizens, then THAT IS IN PART WHY THE 2ND AMENDMENT EXISTS.

Machine guns in the hands of responsible, law abiding people are an expensive hobby, not a problem.


Chances are, if someone harms you with an assault rifle, it will be some ninja-clad SWAT officer breaking down your door at 2AM over a minor drug offense, not your neighbor with his AK-47 (which ironically is not as dangerous compared to the average hunting rifle).

Uh. If someone harms you with something that looks like a modern military carbine (a so-called assault rifle) it is most likely to be a gang member who acquired his weapon illegally. Very few people are actually shot by SWAT teams with AR pattern rifles.

Also the AK-47 is ballisticaly identical to the 30-30 which is (or was until at least the mid-90s) the most popular hunting rifle going. Which is really neither here nor there where the 2nd is concerned.

Beau:
So here is my challenge; what ever your position, give me a set of rules and/or tests that can be easily applied by lower courts. If you can't or won't, sit down and shut up.

Simple:
Is the device being contested similar to one currently in the US DoD arsenal, has it been in living memory, or is it useful for training someone to use a device currently in DoD arsenal

Yes, this excludes a lot of hunting rifles, and more than a few pistols and revolvers.

But the thing is, when you *must* allow everything from a .22 training rifle (which I'm sure we have somewhere) to .38 revolvers and 9mm auto pistols to the M16, Springfield M14s, Barret .50s and Remington 700s in .308 and 300WM, then there's not a lot that would even pass the "rational basis" test.

I mean, if I can buy a M16 with a 3 round burst, banning a SKS doesn't make any sense. If you can't stop me from carrying a beretta under my coat, then telling me I can't carry a Glock the same way is pretty insane.

The one downside to this definition is that certain parts of the DoD consider their computers and computer networks to be a weapons system.
 

HANDICAPPING THE JUSTICES ON HELLER

Back in 1952, I would look forward to the late Professor Thomas Reed Powell’s conlaw class. The presidential campaign, the first time I could vote, was underway. Joe McCarthy was out there making noises. There was a lot of political tension. It was a joy to listen and joust with a grand master who had been so prominent in the development of conlaw throughout much of the first half of the 20th century and particularly during the New Deal. He knew the Justices on SCOTUS and they knew him. In fact, one of them had served on Harvard Law School’s faculty with him, Felix Frankfurter.

One day after a class I asked him what course he taught at Harvard when Frankfurter was teaching conlaw. He glared at me and said (as best I recall), “Why you young whippersnapper, I [heavily stressed] taught Constitutional Law; Felix taught a new-fangled course called Administrative Law.”

At the time there was a case that looked like it might be headed to SCOTUS. I don’t recall the case, but it may have involved baseball and its exemption from the Commerce Clause. ConLaw was all about the Commerce Clause in 1952, a few years prior to the Warren Court’s individual rights focus. And I had heard that Powell might have had a hand in the SCOTUS decision providing protection to baseball. So, one day after class I asked him how SCOTUS might rule on this case. His response lives with me today, especially as SCOTUS faces its Heller decision:

“I don’t know. I stopped trying to figure out what those bozos are going to do years ago.”

And he knew some of those bozos and they knew him.

Powell was not afraid to say “I don’t know.” He was retired from Harvard Law School at the time. He died in 1955 several months after delivering the James S. Carpentier Lectures at Columbia University titled “Vagaries and Varieties in Constitutional Interpretation.” I was serving in the military in 1955 and did not learn of his Lectures until my semi-retirement in 1998. I was able to acquire the publication of the Lectures (1956, Columbia University Press) which I eagerly read, hearing his voice as I did. The title of the Lectures says a lot, perhaps even more so today with the emphasis upon the many varieties and vagaries of originalism, including with Heller.

The publication was put together posthumously with the help of Prof. Paul A. Freund (who took over conlaw at Harvard) and William C. Warren of Columbia. Freund’s Foreword closes:

“This is not the place for a personal appreciation of T.R.P. But it would be affectation not to indulge one’s feelings at least to say that there is in these chapters an echo of that sharp gaiety and uninhibited candor that made companionship with T.R.P. a bright delight as well as a reminder that essential morality, the scrupulous morality of mind, need not be conveyed by solemnity. His wisdom, like that of Socrates himself, was sheathed in playfulness. That is certainly the most palatable kind of wisdom, probably the most telling, and perhaps the most profound. With Vermont [Powell’s birthplace] sagacity Robert Frost has said ‘The way of understanding is partly mirth.’”

So lighten up, fellas, don’t be so quick on the draw. The law isn’t like a TV, cable or Internet reality show. Who knows what these bozos are going to do? There is a Pennsylvania Dutch [I won’t use the dialect] saying “We grow too soon old and too late smart.” Sometimes it is smart to say “I don’t know.”
 

mark field said...

I can't speak for other liberals, but I favor reasonable controls on guns because I believe in law and order, not self-help, as the appropriate remedies in republican government. And that's why, at the same time, I favor broad protection for free speech: it's that right which makes all others possible.

I do not speak for other libertarians, but I favor a relatively unfettered right to keep and bear arms because the front line in law and order has always been the citizenry.

I would also suggest that an armed citizenry is the baseline guarantee of the preservation of all other freedoms from government tyranny from within and without. This is why St John Tucker called the Second Amendment the palladium of freedoms and why the Founders favored an armed citizenry and a small army.
 

I would also suggest that an armed citizenry is the baseline guarantee of the preservation of all other freedoms from government tyranny from within and without.

# posted by Bart DePalma : 8:36 AM

What a brilliant observation. Let's take a look at a few examples:

Pakistan. There is virtually no government presence in the tribal areas, and the place is up to it's eyeballs in guns. It's a beacon of freedom, if you happen to belong to Al Qaeda.

Afghanistan. Carrying a gun is a passport to adult society for most men, and they are fired into the air at the slightest provocation. Freedom is just exploding in Afghanistan.

Most of of Europe, on the other hand, is governed by very strict gun laws. And the last time a large European country armed it's citizens, they invaded Poland.

The idea that ownership of weapons is a guarantee of freedom is idiotic.
 

bb:

I stated that an armed citizenry is the best protection against government tyranny from within and without.

Pakistan is actually a pretty good example of this point. The Pakistani military dictatorship cannot enforce its will on the armed tribal areas and the foreign Arab al Qaeda are also having trouble establishing themselves in areas run by hostile armed Pakistani tribes. If the tribes were disarmed, neither the dictatorship or al Qaeda would have a problem asserting power in these areas.

You need to remember that the bill of rights is not a guarantee of personal freedom from private social norms you find distasteful. Rather, it is a guarantee that the government will not limit the personal freedoms enumerated in the Bill. An armed citizenry is the best guarantee of keeping the government to that bargain.
 

The Pakistani military dictatorship cannot enforce its will on the armed tribal areas and the foreign Arab al Qaeda are also having trouble establishing themselves in areas run by hostile armed Pakistani tribes.

hahahahaha...

You should give the US State Department a call. They seem to think the tribal area is unsafe, due to all the Al Qaeda and Taliban there.

travel
warning

An armed citizenry is the best guarantee of keeping the government to that bargain.

Which is why we're desperately trying to disarm the citizens of Iraq and Afghanistan?
 

An armed citizenry is the best guarantee of keeping the government to that bargain.

By the end of World War 2 the Nazis were giving weapons to every German who had the strength to carry one. Oddly, their level of personal freedom did not appear to improve.