Just so I'm clear on this, are you saying that the Second Amendment guarantees private citizens the right to own "107-millimeter rockets"?
 

As I recall, the Iraqi constitution (with which the US played a significant role) does not include a provision similar to the Second Amendment. And Iraq has had a strong gun culture, associated with violence in that country. Why, pray tell, didn't the US constitutional advisors "suggest" a Second Amendment type provision for the Iraqis? Could it be that it might interfere with the US's occupation, putting US military at greater risk?

Perhaps the Iraqi militias are more comparable to the colonists-Patriots in the Revolution. Perhaps this civil war may turn into an Iraqi revolution with the revolters doing what the colonists-Patriots started in 1776.
 

"Why, pray tell, didn't the US constitutional advisors "suggest" a Second Amendment type provision for the Iraqis?"

For much the same reason it does not include trial by jury. Numerous features of our Constitution are based on a view of the government as a threat to the people, which the people must be enabled to oppose. Why would you expect the people running our government to be willing to accept this view of themselves?

That's why I find 'living constitutionalism', which enables the governing elite to 'alter' at will the constitution that's supposed to be constraining them, so horribly dangerous.

Government is a "dangerous servant, and a fearsome master"; It's sheer lunacy to give it the power to unilaterally rewrite the terms of it's servitude into mastery.

Max Weber's definition of the state has nothing to do with the US. He's describing the old order, which the US, the "new order for the ages", was created in deliberate opposition to.
 

But don't the originalists wish to bless nations to become democracies in our own image, e.g. with comparable rights?
 

Sure, but what makes you think this is an administration of originalists? The fact that they find it politically expedient to describe themselves as such? Democratic office holders find it expedient, sometimes, to describe themselves as "liberals", and it doesn't make them such.

Originalism may have enough intellectual clout that some people try to take over the name for their favorite version of living constitutionism, but it's barely got any penetration at all into the governing class; No surprise there, given that any originalist reading of the Constitution would give those very people far less power to enjoy.
 

The Devil qoutes Scriptures when it suits his/her purposes. Sort of like the cold dead hand holding a rifle. Originalism, democracy, free trade, free markets, etc, are all in the eye of the beholder: see what I mean, not what you understand, or anticipate or expect? As in poker, it all depends upon the hand you be-holding. Or it may depend upon whom you are beholden to.
 

The belief that everything is "in the eye of the beholder" is ultimately corrosive of rationality, by embracing whim over reason. There IS an objective world out there, Shag, and we are not powerless to learn about it. though imperfectly.
 

I would note that the Iraqi Army and Police are only collecting heavy weapons in Basra, not the small arms protected in our Second Amendment.

I would also note that the Constitution in general and the Second Amendment in particular does not guarantee private militias ala the Mahdi Army. To the limited extent of operating organized military units, the state does indeed have a monopoly of force.

However, if the government becomes a tyranny and acts unlawfully, it loses all legitimate authority including the monopoly on force and the People reserve the right to use force to remove it as we did in the Revolution. This is one of the purposes of the Second Amendment right to maintain an armed citizenry.

Finally, it is completely unsurprising that our military was not pushing the Iraqis to add a right to keep and bear arms to their constitution. Occupying military forces do not want the occupied people armed and able to shoot at them.

Indeed, one of the more oft cited reasons given for the Second Amendment was to make the United States impossible for foreign armies to conquer. For example, our victory over the Iraqi Sunni militias was the result of the fact that we convinced them to ally with us in exchange for a large measure of political and military autonomy in the form of the Awakening Councils. If we were genuinely attempting to conquer and rule Iraq, our military would would be hard pressed to prevail against an armed Iraqi citizenry of 28 million.
 

I would note that the Iraqi Army and Police are only collecting heavy weapons in Basra, not the small arms protected in our Second Amendment.

I would note that the large number of government vehicles on fire in the streets of Basra would indicate that they're really just collecting expended ordinance.
 

For example, our victory over the Iraqi Sunni militias was the result of the fact that we convinced them to ally with us in exchange for a large measure of political and military autonomy in the form of the Awakening Councils.

Only if by "in exchange for measure of political and military autonomy in the form of the Awakening Councils", you meant "in exchange for large piles of cash". We are bribing them, you imbecile.
 

Let's see, we are not powerless to learn about the objective world out there, though imperfectly. So like horseshoes close enough wins. Isn't there some subjectivity to such objectivity? Age 35 seems quite clear and objective for a President. But so many aspects of the Constitution are not that clear as demonstrated by Heller with its 69 briefs. I'm confident, objectively speaking, that the various opinions on the Heller case with have their shares of subjectivity to which readers of such opinions will apply their own subjectivity.

I made no suggestion that everything is in the eye of the beholder by specifying certain items, and the "etc" was not intended or meant to extend to the kitchen sink.
 

Since lawyers are, by and large, professional solphists, perfectly willing to defend the guilty, prosecute the innocent, and advance with a straight face arguments they understand to be nonsense, I don't see how the number of briefs in the Heller case has much relevance.

A better measure would be admissions against interest, cases where constitutional scholars who favor gun control say it's unconstitutional, or constitutional scholars who oppose it say it's constitutional. I know of some of the former sort, I know of none in the latter class.
 

I would note that the Iraqi Army and Police are only collecting heavy weapons in Basra, not the small arms protected in our Second Amendment.

I would also note that the Constitution in general and the Second Amendment in particular does not guarantee private militias ala the Mahdi Army. To the limited extent of operating organized military units, the state does indeed have a monopoly of force.

For once I find myself in agreement with Bart De Palma. Calls on the Madhi Army to "disarm" appear to mean only to disband as a private army and give up heavy artillery, not small arms. Analogies to our own history are revealing.

The Constitution was written under the shadow of Shays Rebellion. They Shaysites formed their own army, engaged in armed rebellion against the government of Massachusetts, and attacked the arsenal at Springfield hoping to get ahold of cannons and artillery. Aside from Jefferson's comment about the tree of liberty, the general response to all this was quite Weberian -- Shays Rebellion was seen as an illegitimate revolt to be put down by armed force. Many Shaysites were barred from voting or holding office for three years. Certainly no contemporary would have found it the least bit odd to insist that the Shaysites disband their army and surrender and field artillery as a prelude to voting on the Constitution.

The Whiskey Rebellion took place with the ink scarcely dry on the Second Amendment, but Washington's reaction was similarly Weberian. And no one, not even the Whiskey Rebels themselves, ever claimed that they were exercising their lawful Second Amendment rights of armed resistence.

I will note, though, that Saddam Hussein was able to prevail, albeit bloodily, over an armed Iraqi citizenry of 28 million.
 

As to the Shayes and Whiskey rebellions, I strongly recommend reading Saul Cornell's very interesting comments on these, especially the latter, in his new book on the Second Amendment.

States, who are clearly authorized to maintain militias by the Second Amendment (whatever else it may mean), clearly were not confined to handguns. I assume that states had cannons and the like. One of the battles in contemporary Iraq is precisely over the shape that the Iraqi version of federalism will take, including the presence of de facto alternative armies to those controlled by the central state such as the peshmurga among the Kurds.
 

As to the Shayes and Whiskey rebellions, I strongly recommend reading Saul Cornell's very interesting comments on these, especially the latter, in his new book on the Second Amendment.

States, who are clearly authorized to maintain militias by the Second Amendment (whatever else it may mean), clearly were not confined to handguns. I assume that states had cannons and the like. One of the battles in contemporary Iraq is precisely over the shape that the Iraqi version of federalism will take, including the presence of de facto alternative armies to those controlled by the central state such as the peshmurga among the Kurds.
 

Sandy:

The authority of the States to raise their own militias does not derive from the Second Amendment.

The preamble clause of the Second Amendment is not written as a command, but rather as commentary. Moreover, at the time of the drafting of the Second Amendment, the phrase "free state" was commonly used to refer generally to a free people or polity, not to the political subdivision of the States.

Instead, the State power to raise and deploy a militia was guaranteed by the Ninth Amendment subject to congressional regulation and call up pursuant to Article I's Militia Clause, which assumed that the States would be raising and training the militia.
 

Mr. DePalma may well be right. But it really doesn't matter, for both of us agree that one cannot understand the US in 1789 without acknowledging the right of states to have militias.
 

The NRA-ILA website at
http://www.nraila.org/heller/
lists sixty nine (69) briefs filed in Heller. In addition to the parties’ two (2) briefs (plus a reply brief for the District), forty eight (48) amicus briefs in support of Heller and nineteen (19) in support of the District are listed and can be linked to. (I have read only the amicus brief filed by the Cato Institute and historian Joyce Lee Malcolm in support of Heller and the amicus brief of fifteen (15) historians (several off whom are legal scholars as well) in support of the District.)

Brett seems to cavalierly show disinterest in these amici briefs, stating: “Since lawyers are, by and large, professional sophists, perfectly willing to defend the guilty, prosecute the innocent, and advance with a straight face arguments they understand to be nonsense, I don’t see how the number of briefs in the Heller case has much relevance.” I don’t know if Brett has checked the contents of any of these briefs. But he uses a dismissive broad brush of the legal profession, including attorneys involved with these sixty seven amici briefs on a serious and contentious constitutional issue. Take a look at the website, peruse the listings for the Heller and District amici briefs. There are some prominent organizations/individuals involved with these filings, including constitutional scholars. I would hope that the Justices are not so dismissive of these amici briefs and that they or their clerks will have read them for some possible nuggets of knowledge and wisdom.

According to Brett, “A better measure would be admissions against interest, cases where constitutional scholars who favor gun control say it’s unconstitutional, or constitutional scholars who oppose it say it’s constitutional. I know of some of the former sort, I know of none the latter class.” A list of such constitutional scholars would be valuable in testing whether indeed there are “admissions against interest,” which is a legal term of an evidentiary nature that may overcome the hearsay rule. Perhaps the constitutional scholars Brett has in mind might bristle with Brett’s phrase being applied to them. But with Brett’s dismissiveness of lawyers, perhaps he used this phrase not in the legal sense but more in the nature of the “GOTCHA!” especially since he knows only of such constitutional scholars who favor gun control but think the District’s statute is unconstitutional. Perhaps Brett has not taken the effort to discover those with an opposing view, as that may not serve his interest.
 

There are several implications in the following -- in the entire premise -- that are false:

"Iraq's national security council "declared that all political parties must immediately dissolve their militias and surrender their weapons if they wish to take part in elections. " Ask yourself what the response in the United States in 1789 to a statement by George Washington and his Federalist colleagues that no one would be allowed to vote in the first set of elections without surrendering his weapons to the national government. It was, of course, the fear of something like that that led to the Second Amendment, a truly important part of the Constitution, historically."

For one, the militias of the "revolutionary" period were, as they had been since the foundings of the first colonies, under the law -- militia acts. They were not wildly patriotic volunteer gangs who volunteered, and voluntarily obeyed the nicities of non-existent law. The "volunteer" aspect of those militias ended once one signed on the dotted line, after which one was subject to the usual fines and other penalties, including courts-martial.

They were not armed gangs who called themselves "patriots" while roaming around outside the rule of law and shooting at the gov't. They especially were not authorized to shoot at the gov't/s established by the Founders/Framers.

For another, guns have been regulated, for obvious reason -- public safety, stability of gov't and laws -- since their advent.

For another, the Founders enacted laws, leading into and through the "revolution" -- in addition to existing militia acts -- which prohibited the possession of weapons by those "disaffected with the revolution," confiscated the weapons of Tories, and of those who refused to sign the "Test" oath to support "the cause," and impressing -- "gun-grabbing" -- the weapons of those who had them but weren't using them to fight the "revolution" and giving them to those who would use them to that end.

Even Sam Adams, the super-radical "revolutionary," acted in that fashion after the "revolution," under the Articles of Confederation, when he required some nine Shaysites, in exchange for pardons, to both swear an oath of loyalty to the gov't, and to turn in their guns.

Now let's look at the Second Amendment itself -- the same conclusion is arrived at by various independent routes, but this is my current favorite.

First, the Second Amendment has nothing whatever to do with "individual" anything, as Congress' debates of that which became the second conclusively substantiate; this was Madison's proposal for that which became the Second: note the last clause, which has my emphasis, and which was voted down:

"The right of the people to keep and bear arms shall not be infringed; a well regulated, and well armed militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

"People" is plural, exactly as it is in "We the people". "Person" is clearly individual, and is directly tied to INVOLUNTARY MILITARY SERVICE, and in this instance would secure the right to NOT bear arms.

That was the only posited individual right debated in connection with that which became the Second Amendment. That postied indivdiual right was voted down. Ergo, the Second Amendment has nothing whatever to do with individual anything. (In addition: the militia is a public institution; the private, individual gun owner is not.)

Ratification of the "Bill of Rights" -- debated and framed by Founders and Framers -- was completed on December 15, 1791. Subsequently, Congress -- populated by Founders and Framers -- enacted, on May 8, 1792, the "Militia Act," which Act, Second Amendment notwithstanding, regulates the militia, the militia being without question within the scope of the Second Amendment.

(Which obviously also means that not only does the Second Amendment not "protect from" the rule of law, but if there were an individual right within the scope of the Second -- which there is not -- it would not be "protected from" regulation.)

The Second Amendment neither modified nor negated the Militia Clauses in the Constitution (Art. I., s. 8, cl. 15 & 16), the first of which stipulates that one purpose of the militia is to suppress insurrection. And the purpose of that amendment was to assuage and or molify the anti-Federalists' paranoias by guaranteeing that the states could keep their militia; it did not change the fact that, as had been the case since ratification of the Constitution, the militia was still regulated by Congress, and the CinC of it was either the state's governor, or the president.

By contrast, in Iraq, the so-called militias are expressions not of "patriotism" but rather of tribalism and rivalry, not of a defense of "freedom" against the gov't, but rather a defense of turfs against each other.
 

This is ahistorical, idiotological hogwash:

"However, if the government becomes a tyranny and acts unlawfully, it loses all legitimate authority including the monopoly on force and the People reserve the right to use force to remove it as we did in the Revolution. This is one of the purposes of the Second Amendment right to maintain an armed citizenry."

Nor did "we" "remove" the gov't during the so-called "revolution". Rather, the Founders established their own "paraellel"/"rump" gov't. This area of legal history, and especially that leading up to and through Constitution and Bill of rights ratifications, is my special focus. In MA, as example, when Gov./General Gage disolved the legislature, the legislators simply formed their own legislature and went on enacting laws, including, among the first, a statute establishing the legitimacy of those laws.

There was no gov't "removed" or "overthrown" -- either on this continent, or in England.

And again, no: the Second Amendment has nothing whatever to do with "individual" anything, any more than legitimate militia sre voluntary armed gangs running around outside and in spite of the rule of law. See "Shays" and "Whiskey" rebellions for the responses by the Founders, in the first instance under the Aritcles, in the second under the Constitution -- after ratification of the Second, and the enacting of the 1792 Militia Act.
 

More utter ahistorical nonsense from Bart:

"Instead, the State power to raise and deploy a militia was guaranteed by the Ninth Amendment subject to congressional regulation and call up pursuant to Article I's Militia Clause, which assumed that the States would be raising and training the militia."

In fact, Bart, not in idiotological fantasy, the states enacted their constitutions during 1776-77, and 1780 (the latter instance being Massachusetts-Bay), and in each was that which was called "Militia Clause". It governed the militia (implemented via statute -- "Militia Act"), and stipulated how the gov't would approve and appoint its officers.

The states' constitutions/bills of rights are the sources which were drawn upon for Federal Constitution/Bill of Rights.

In short: the autority over the militia was consistent and unbroken, including in finest details, from the founding of the colonies up to and through "revolution," and up to and through Constitution and Bill of Rights. The Ninth Amendment is irrelevant to the issue -- and is "johnny-come-lately" to begin with.

And especially see VT's first constitution, in which there are two separate clauses -- on the ubiquitous Militia Clause, governing the state's militia, and -- SEPARATELY -- a clause securing the right to "fish and fowl," which clause also includes limitations on that individual right.

Clue: the Founders and Framers were not "anti-regulation" "libertarians" -- especially when it came to ensuring the stability and survival of their handiwork in the form of gov't and laws. As the Militia Clauses on the Federal Constitution make clear -- Second Amendment notwithstanding -- the militia shall be under the law -- "in exact subordination to the Civil Power" -- Sam Adams -- and there is no "right of revolution".
 

As to the Shayes and Whiskey rebellions, I strongly recommend reading Saul Cornell's very interesting comments on these, especially the latter, in his new book on the Second Amendment.

States, who are clearly authorized to maintain militias by the Second Amendment (whatever else it may mean), clearly were not confined to handguns. I assume that states had cannons and the like. One of the battles in contemporary Iraq is precisely over the shape that the Iraqi version of federalism will take, including the presence of de facto alternative armies to those controlled by the central state such as the peshmurga among the Kurds.

# posted by Sandy Levinson : 1:54 PM

Sandy, I recommend reading the Massachusetts-Bay statutes around Shays (1786-88 generally): they clarify a great deal more the actual views of the Founders/Framers than does Saul Cornell (he's okay but there's no need for "a third pardigm"), or alsmost anyone else. They had no truck with armed gangs, even if they dubbed themselves "patriots," running around outside the law and shooting at their handiwork. The "Whiskey" rebels were termed "common criminals" -- quite appropriately. And several Shaysites were hanged. Some nine were saved from hanging by swearing an aoth of allegiance to gov't, and turning in their guns, in exchange for pardons.
 

No doubt the voices of established authority referred to such people as "common criminals." But Cornell's point, as I understand it, is that that wasn't the self-perception of the Shaysites or Whiskey rebels themselves, any more than it was of the American Revolutionaries. (What makes this important is that most "common criminals" would not deny that appellation: a bank robber, save for very rare instances, would happily acknowledge his/her criminality and not try to embed it in some "higher" ideological analysis.)
 

"Sandy Levinson said...

"No doubt the voices of established authority referred to such people as 'common criminals.'"

In the "Whiskey" case decisions they are referred to as "common criminals". Several were sentenced to hang -- and Bush notwithstanding, there were no "military commissions," or Guantanamos, established: the trials were conducted by the regular courts -- and Washington pardoned them).

I've not looked for case decisions re. Shays; but I do have at hand several of the statutes enacted in response to that rebellion.

"But Cornell's point, as I understand it, is that that wasn't the self-perception of the Shaysites or Whiskey rebels themselves, any more than it was of the American Revolutionaries."

As for the self-perception of the Shaysites: they were in dire, desperate economic straights, and Shays himself was a veteran of the "revolution" (he was no "Five Deferment" hero); I don't know that they had time to contemplate what they perceived themselves as being.

Otherwise agreed: Sam Adams, the "too-radical revolutionary" who had so much to do with establishing the "rump" gov't, was mighty mighty pissed when the Shaysites endeavored to do the same. (Sam Adams was -- until relatively recently -- the most morally repugnant human being I'd ever encountered in documentation. Yoo gives him a damned good run for the money; and he is definitely dwarfed to elfin by the Bushit criminal enterprise.)

"(What makes this important is that most "common criminals" would not deny that appellation: a bank robber, save for very rare instances, would happily acknowledge his/her criminality and not try to embed it in some "higher" ideological analysis.)"

Certainly. Which is also my point: the "revolutionary" and prior militias -- those which were legal -- were always under the law; it is a widespread misunderstanding that such as the "Minutemen" were some sort of superpatriotic informal group of good citizens, "Yeomen," who put their lives on the line because cheerfully willing to voluntarily die for the good of the community, so just showed up. In fact, they were "on the lists," "enrolled" -- enlisted -- in the militia; and that carried with it the attendant involuntary duties, and penalties for not fulfilling them, as prescribed in law. (And if one follows the regulation of -- for not-entirely-academic reasons -- alcohol, tobacco, and firearms from the advent of the colonies on this continent (beginning with the first stable, New-Plimoth), one finds that the "individual, private right" to own guns -- which certainly existed then, and exists today -- given sufficient threat to the community, "yielded" to the interests of the community. And there were drafts. And deserters were shot.

Same thing happened leading into/during the "revolution," as I noted: as example, those who failed or refused to sign the oath of loyalty to "the cause," as prescribed by statute, had all their weapons confiscated, and the weapons were given (first dibs) to the Continental Army, and or (second dibs) the local -- legal -- militia.

Simply, there was no "counter-revolution" because the Founders, by statute (at the suggestion of the Continental Congress), disarmed the Tories. Ergo, there is no way that "gun control"/regulation is unconstitutinal.

Further, during the debates of that which became the Second Amendment, only one Congressman -- Elbridge "Gerrymander" Gerry, of MA, suggested that a purpose of the militia was to protect the state against Federal tyranny. No one responded either way, and that was the only mention of that theory. The most of the debate was distinguishing "standing army" from militia, and debating whether to include the "conscientious objection" clause, which latter was ultimately voted down.

It's a simple and reasoned premise or principle: No sane, non-suicidal society leaves dangerous substances or objects lying around unregulated. There's no need for a "third paradigm," Saul Cornell notwithstanding.
 

". . . . the State power to raise and deploy a militia was guaranteed by the Ninth Amendment subject to congressional regulation and call up pursuant to Article I's Militia Clause, which assumed that the States would be raising and training the militia.

"# posted by Bart DePalma"

BULLSHIT!

The Original Thirteen states adopted constitutions in 1776-77, and 1780 (MA-Bay). Every one of them included a militia clause both securing the legitimacy of the state's militia, and establishing the foundation for statutory regulation of it. (None of which was actually all that new, as it was directly based upon several centuries of legal history/precedent.)

None of that changed with the later ratification of the US Constitution, or the Bill of Rights. In fact, the sources for the Bill of Rights, including the Second Amendment, were not irrelevancies such as Magna Carta and foreign British law, or even non-law "Declaration of Independence," but rather the already-existing state constitutions/bills of rights. Those are the sources of the phrase "the right of the people to keep and bear arms": already-existing state constitutional MILITIA CLAUSES.* (Necessary clue: a militia is not an individual.)

All the Second Amendment, which is exclusively about the requisitely-well-regulated-under-law states' militias, did -- and this was its express purpose at the time -- was guarantee that the states could keep their militia. The intent was two-fold: to assuage the anti-Federalists' paranoias over the issue, and pursuade sufficient of them to support ratification of the Contitution.

Those historical facts are so thoroughly well known that the gun-nut lunatic fringe constantly "forgets" to mention them in their zeal to find in the Ninth, or the Tenth, images of themselves, of their ahistorical -- and unhinged -- fantasies. Assuring that the military would remain -- as it always had in the colonies -- "in exact subordination to the Civil Power" (Sam Adams and Jefferson, among others) was not left to chance or tabla rasa Amendments such as Ninth and Tenth. It was always made express (and in earlier colony law tended to be buttressed with laws prohibiting and declaring as treason any efforts to destabilize or destroy the central gov't, particularly by means of force), as it is in the Constitution, and -- without altering that -- the Second Amendment.

The Founders/Framers were not simply orating because they loved to hear themselves talk when they spent substantial time during the debates of that which became the Bill of Rights dealing with the issue of standing armies, and the alternative thereto: the militia, and thus the Second Amendment.

I don't know how to break the news to you, Bart, so here goes in direct unvarnished terms: Congress' debates of the Bill of Rights by those who debated and wrote it are legal authority; the NRA's directly contrary propaganda against the conclusive evidence of those debates is not only not legal authority, it is utter and abaolute trash. --

*See The Birth of the Bill of Rights 1776-1791 (Boston: Northeastern University Press, 1983), Robert Allen Rutland; Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore: Johns Hopkins, 1991), Ed. by Helen E. Veit, et al.; The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties (Madison, WI: Madison House, 1992), Ed. Patrick T. Conley and John P. Kaminski; and, The Complete Bill of Rights: The Drafts, Debates, Sources & Origins (NY: Oxford Universtiy Press, 1997), Edited by Neil H. Cogan.

Bart: if you want to be an actual lawyer, you'll have to forego the ahistorical and anti-Constitutional law-illiterate's pseudo-law, as mishmashed together by "libertarian" idiots, assholes, and fools and floating around on the Internet, and in place of that get an actual education in actual law at a credible law school.
 

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