Public opinion has always believed that the Second Amendment means what it says and guarantees and individual right to keep and bear arms. However, that did not keep the vast majority of federal courts from ignoring popular opinion and the text to invent and follow the legal fiction of a "collective right."

The fact that a court opinion happens to agree with popular opinion does not make the opinion an example of living constitutionalism or the Dooley Principle unless the opinion also departs from the text of the Constitution. Popular opinion and the text of the constitution can arrive that the same meaning.
 

A better phrase than "living constitution" is "a constitution that works" or even "a pragmatic constitution."

dah
 

dah:

A better phrase than "living constitution" is "a constitution that works" or even "a pragmatic constitution.

Sounds like liberals who want to call themselves progressives to escape the perceived stigma of being called a liberal.

Relabeling does not change the product.
 

"Bart" DePalma:

[dah]: A better phrase than "living constitution" is "a constitution that works" or even "a pragmatic constitution.

Sounds like liberals who want to call themselves progressives to escape the perceived stigma of being called a liberal.

Well, it might sound that way to you, but you might want to trot out those "LiboNazis" that want to escape "the perceived stigma of being called a liberal". Nice of you to decide for others what they think.

Care to address what Dah was actually alluding to?

Cheers,
 

Relabeling does not change the product.

If you were to change the name of Mountain Dew to "Turd Water," it would certainly have an effect upon the product--perhaps not in the ingredient list, but in its reception and use, arguably the most important aspects of the product for both producer and consumer.

A shift from "living" to "pragmatic" suits me just fine, but I'd rather apply it to the approach than the document itself. The "living constitution" never ceases to remind me of the "living Bible," an idea I just can't separate from narrow revisionist readings used to justify doctrinal preferences.

It's not the Bible or Constitution that's "renewing" itself--the source of such re-interpretation is external to the document, and the qualifier should be applied to the interpreter, not the text.
 

Relabeling does not change the product.

That hasn't stopped you from relabeling the disaster in Iraq to "liberation".
 

Public opinion has always believed that the Second Amendment means what it says and guarantees and individual right to keep and bear arms. However, that did not keep the vast majority of federal courts from ignoring popular opinion and the text to invent and follow the legal fiction of a "collective right."

Isn't interpretation a grammatical question more than an opinion poll? I mean, doesn't "A well regulated Militia, being necessary to the security of a free State," have meaning and significance? Or is it just a historical footnote, acknowledging English tradition?

From The Militia and the Right to Arms:
“The linguistically correct reading of this unique construction ... is as though it said: Congress shall not limit the right of the people (that is, the potential members of the state militia) to acquire and keep the sort of arms appropriate to their military duty, so long as the following statement remains true: "an armed, trained, and controlled militia is the best — if not the only — way to protect the state government and the liberties of its people against uprisings from within and incursions or oppression from without."”

Really, my point is that if some language can be ignored, isn't anything up for grabs? I personally don't think the ablative absolute construction invalidates the individual right to bear arms, but it seems wrong to selectively ignore it on the grounds of public or popular opinion.
 

Of course, the obvious problem with surveys asking, "Should gun laws be stricter?" is that more detailed surveys reveal that most of the people answering "Yes!" are utterly ignorant of how strict those laws already are. We're talking, for instance, about people who've been successfully fooled into thinking 'assault weapons' are machine guns, and who thus believe that the current state of the law allows you to walk into Gander Mountain, and walk out with a machine gun.

It's unclear to me why opinions formed on the basis of mistaken belief, (Which is itself the result of active efforts to deceive.) should be so highly regarded.
 

That's the nub of history as a discipline. Yes, more information may be available to a current researcher than one, say, 50 years ago, but it is always viewed through the lens of the current time. The good practitioners of historical comment understand that; the bad practitioners do not.

One particular pointer for the bad practitioners: the use of "always". Something that is claimed to be "always" true has about a one-in-a-million shot of "always" being true.
 

people who've been successfully fooled into thinking 'assault weapons' are machine guns

What is the difference?
 

"Assault weapons", a catagory created for the purpose of the '94 ban, consists of semi-automatic firearms which have more than a minimum number of cosmetic features, such as folding stocks or kelly grips, plus a long list of firearms included by name. Semi-automatic firearms automatically load a new cartridge into the chamber, but don't fire it until you pull the trigger again. Most firearms are semi-automatic, by the way.

Machine guns, by contrast, keep automatically firing until their ammunition is exausted, if you hold the trigger down.

Josh Sugarman of the Violence Policy Center was quite open about how their PR effort to get the ban passed was based on confusing the public into thinking that the banned weapons were machine guns, rather than ordinary firearms with easily demonized cosmetic features.
 

Sorry, I thought you meant real assault weapons, which are often fully automatic.

In any case, if real assault weapons can be banned, why can't semi-automatic weapons be banned?
 

Real "assault rifles" are generally selective fire, capable of operating as either semi-automatic or machine guns with the flick of a switch.

Real "assault weapons" don't exist, it's a PR term created by the gun control movement, and embodied in a rather confused way in that '94 gun ban, but all the guns it swept in were semi-automatic, or in some cases even specialized revolvers.

And, in any event, I don't think real assault rifles CAN, constitutionally, be banned. But my point here was simply the foolishness of deriving any conclusions from a poll asking if a law is strict enough, when the people being asked don't know how strict it is.
 

I have read this interesting blog for a number of years and, although entertained, I have not thought fit, as an English lawyer, to pass comment. However, I note that your ubiquitous commenter has stated that the words of your 2nd Amendment, in popular opinion, means what it says. If that is true, it is rather an odd way of saying it. If it means a right to keep a nd use guns, why doesn’t it say so. I understand that your ‘founding fathers’ were not unintelligent. If that is so, why use the words ‘bear’ and ‘arms’. I no nothing of how those words have been construed in your courts, but I believe that the words were used in quite a different context in the 18th century.

In the City of London stands a large redbrick building which looks, incongruously, like a manor house set down in the financial centre of the country. It was built in the 17th century and is the College of Arms. It is not, as some might think, a place where people learn to shoot, but the home of the only body which has the right in England to grant arms i.e. the right to have and display (keep and bear?) a coat of arms. The officers of the college are kings of arms, pursuivants and heralds. In cases of disputes, the Court of Chivalry which, although extant, has sat only once since 1737, exists. It sat in 1954, the case Manchester Corporation v Manchester Palace of Varieties [1955] 1 All ER 397 The case involved the use by the defendant of the plaintiff’s coat of arms on it common seal. In his judgment of the Lord Chief Justice (sitting as the Earl Marshal’s surrogate) sets out a history of armorial bearings - originally used to identify knights in clothed in armour - and states “The right to bear arms is, in my opinion, to be regarded as a dignity and not as property within the true sense of the term.”

So maybe a militia was well regulated by allowing the people to identify themselves by way of heraldry. Or perhaps not
 

And, in any event, I don't think real assault rifles CAN, constitutionally, be banned. But my point here was simply the foolishness of deriving any conclusions from a poll asking if a law is strict enough, when the people being asked don't know how strict it is.

# posted by Brett : 1:23 PM

It appears that the poll indicates that most people disagree with you on the constitutionality of banning certain types of weapons. Beyond that you're just nitpicking over rates of fire.
 

No, I'm pointing out one out of a rather wide range of points concerning firearms law, where the public is generally ignorant of how strict the law is. (And to some extent this ignorance is due to deliberate disinformation campaigns.)

A poll which simply asks, "Is this law strict enough?" of people who don't know how strict it is, is essentially worthless for establishing the democratic legitimacy of gun control.
 

A poll which simply asks, "Is this law strict enough?" of people who don't know how strict it is, is essentially worthless for establishing the democratic legitimacy of gun control.

# posted by Brett : 1:55 PM

It's not worthless at all. It clearly shows that most people think the government can ban certain types of guns, including guns that you think should be legal.

You don't like that result, so you're trying to pretend that because many people do not understand the difference between fully automatic and semi automatic weapons, then they shouldn't have any say in the gun control argument.
 

No.

Look, there are two separate issues here.

1. What does the 2nd amendment mean? This isn't a matter for a popular vote, if the people want the amendment to mean something particular, then they can damned well lobby the Congress to draft an amendment which actually means that, send it out to the states, and get it ratified. Until they do that, the amendment will continue to mean what it means, utterly independent of whether that meaning is popular. The Constitution is capable of meaning unpopular things. If it in fact does, the appropriate response is to amend it.

2. How much gun control does the public want? Clearly, more than the actual meaning of the 2nd amendment would permit, that much I'll gladly acknowlege. More than we've already got? You can't determine that by asking people who don't KNOW how much we've already got!

This latter point has a great implication for democratic politics in this country: Since most of the support for "more" gun control comes from people who don't know how much we have already, that support tends to errode rapidly when gun control becomes politically salient, and people start informing themselves. That's why gun control can be a winner in the opinion polls, and a loser in the poll booth.

That's why gun controllers what policy made by the opinion polls, instead of the democratic process. Opinion polls are easier to manipulate.
 

Look, there are two separate issues here.

Not really. It's all the same politics.

It is pure fantasy for you to claim that "the amendment will continue to mean what it means", while also pretending there is no militia qualifier in that very same amendment. You don't care what the amendment actually says, you just want your guns. You are playing politics, just like the people who promoted that poll.
 

That's why gun controllers what policy made by the opinion polls, instead of the democratic process. Opinion polls are easier to manipulate.

Didn't the democratic process give us the gun laws in DC that the gun nuts are now trying to get overturned?
 

To fobyoc,
I'm pleased you could jump in from across the pond and perhaps add to the discussion from the perspective of English law preceding the U.S. Constitution and the Bill of Rights. An Amici brief was filed in support of Heller by the Cato Institute and History Professor Joyce Lee Malcolm which on the cover page bears the following, for want of a better word, subtitle:

"[The Right Inherited from England]"

This brief is available via the Internet, I understand, at
www.supremecourtpreview.org
or perhaps by Googling.

This brief supporting the individual right to keep and bear arms relies primarily upon English law presumably "inherited" by the Colonies and incorporated following the Revolution by the States and the Framers of the Second Amendment. I found this brief to be not very readable in the scattershot references to old English cases as I am not versed in the English courts and court systems back in those days. Perhaps someone well versed in English legal history may better understand this brief and be in a position to pass judgment upon it.

You should be aware that 15 historians joined in an Amici brief in support of the District of Columbia on the Heller case basically diamentrically opposed to the Cato/Malcolm brief.

Perhaps with some assistance from you I might better understand English law on the subject of keeping and bearing arms in the time frame of the late 1780s.

By the way, Prof. Malcolm has written extensively on the Atlantic Constitution that governed England and the Colonies (subject to local circumstances), which perhaps guided America until it could put its legal house in order.

Thank you.
 

Public opinion has always believed that the Second Amendment means what it says and guarantees and individual right to keep and bear arms. However, that did not keep the vast majority of federal courts from ignoring popular opinion and the text to invent and follow the legal fiction of a "collective right."

Yet another "fact" pulled out of Mr. DePalma's apparently large rear end. Where are the poll results that show this?
 

fobyoc said...

I have read this interesting blog for a number of years and, although entertained, I have not thought fit, as an English lawyer, to pass comment.

We share much of the same legal heritage. I think I can speak for everyone here that your viewpoint would be very welcome.

However, I note that your ubiquitous commenter has stated that the words of your 2nd Amendment, in popular opinion, means what it says. If that is true, it is rather an odd way of saying it. If it means a right to keep a nd use guns, why doesn’t it say so.

The operative phrase of the Second Amendment - "the right of the People to keep and bear arms shall not be infringed" - states precisely that right.

I understand that your ‘founding fathers’ were not unintelligent. If that is so, why use the words ‘bear’ and ‘arms’. I no nothing of how those words have been construed in your courts, but I believe that the words were used in quite a different context in the 18th century.

At the time of the drafting of the Second Amendment, "to bear" simply meant "to carry."

The use of the term "arms" would suggest that the right extended to other weapons beyond firearms, but at the very least the term would apply to firearms.

In the City of London stands a large redbrick building which looks, incongruously, like a manor house set down in the financial centre of the country. It was built in the 17th century and is the College of Arms. It is not, as some might think, a place where people learn to shoot, but the home of the only body which has the right in England to grant arms i.e. the right to have and display (keep and bear?) a coat of arms.

:::chuckle:::

I can just imagine Monty Python performing a takeoff on the Second Amendment as the right to keep and bear coats of arms.
 

pms_chicago said...

BD: Relabeling does not change the product.

If you were to change the name of Mountain Dew to "Turd Water," it would certainly have an effect upon the product--perhaps not in the ingredient list, but in its reception and use, arguably the most important aspects of the product for both producer and consumer.

I think that the more apt comparison to what dah is suggesting is changing the name of turd water to Mountain Dew. Folks generally do not change the name of their product to something pejorative. Rather, they try to sell snake oil with a more attractive name.

A shift from "living" to "pragmatic" suits me just fine, but I'd rather apply it to the approach than the document itself. The "living constitution" never ceases to remind me of the "living Bible," an idea I just can't separate from narrow revisionist readings used to justify doctrinal preferences.

Originalism has the merit of fairly accurately describing the theory - a meaning fixed at the origin of the Constitution.

Living constitutionalism is a misleading spin phrase like affirmative action.

Pragmatic does not quite work either because much of living constitutionalism is about courts legislating radical ideas into the Constitution which have no hope of being enacted in the pragmatic give and take of an actual legislature.

Off hand, I can't think off a one to two word phrase which conveys "we are making it up as we go along."

Anyone have an idea?
 

Bart:

I can just imagine Monty Python performing a takeoff on the Second Amendment as the right to keep and bear coats of arms.

It might go thus:
8. You will learn to resolve personal issues without using guns, lawyers or therapists. The fact that you need so many lawyers and therapists shows that you’re not adult enough to be independent. Guns should only be handled by adults. If you’re not adult enough to sort things out without suing someone or speaking to a therapist then you’re not grown up enough to handle a gun.

9. Therefore, you will no longer be allowed to own or carry anything more dangerous than a vegetable peeler. A permit will be required if you wish to carry a vegetable peeler in public.
 

Bart writes:
The operative phrase of the Second Amendment - "the right of the People to keep and bear arms shall not be infringed" - states precisely that right.
...
Originalism has the merit of fairly accurately describing the theory - a meaning fixed at the origin of the Constitution.


What is the significance of "A well regulated Militia, being necessary to the security of a free State,"?

Are we ignoring that for some reason? Why would say the framers included that ablative absolute?
 

bit:

The significance of the preamble clause reference to the militia is to provide a reason for the right.

There is no conflict at all between the two clauses.

The militia of the time was made up the the People whose right to keep and bear arms was not to be infringed.

The term "free state" was used commonly at that time to mean a free polity or in other words the People.

In sum, the Second Amendment commands that the People's right to keep and bear arms shall not be infringed to maintain an armed citizenry as the surest guarantee of the People's freedom.

This is classic Republican political theory which was reinforced by a successful Revolution manned largely by a militia of armed citizens.
 

What we need is a text on the Constitution that includes "Black Letter Law," i.e., that is not in dispute. This would take up very little space. Most of the text would discuss the grey areas, which continue to be identified by SCOTUS, conlaw scholars, Bloggers, commenters, etc. Sometimes it's two steps forward, one step back; and sometimes vice versa (if that's how you happen to enjoy your vice). But bumper-sticker Constitutionalism may result in rear end (appropriate anatomically) collisions.
 

The significance of the preamble clause reference to the militia is to provide a reason for the right.

Unless it is a qualifier. Then it clearly limits the right.
 

Off hand, I can't think off a one to two word phrase which conveys "we are making it up as we go along."

Anyone have an idea?

situational definitionism

;)