Balkinization  

Friday, June 27, 2008

Thoughts on Heller from a "Real Historian"

Guest Blogger

Jack Rakove

Picking up on Sandy Levinson's and Mark Tushnet’s recent postings, and drawing on my own working life as a “real historian” with more than a passing interest in originalism, I asked the other Jack to add a posting of my own on Heller. Many readers will know that I do not come to this question lightly, having written both a long review piece on The Second Amendent: The Highest Stage of Originalism for the Chicago-Kent symposium and, more recently, the historians’ brief supporting the D.C. position in the case itself.

I agree with Mark that neither of the two main opinions in Heller would pass muster as serious historical writing, but I would disagree with Sandy that the two opinions are equally incompetent.

The basis of that disagreement goes beyond the obvious fact that the dissent of Stevens tracks (and even cites) my historians’ brief to the interesting analytical or methodological differences between the two opinions. On some of these differences I am certain readers of this list are more au courant than I can claim to be, and I welcome comment and enlightenment.

As Tom Friedman likes to say, let me explain. The pivot of my disagreement lies in weighing the merits of Scalia’s approach, which basically says that the actual history of how the Second Amendment made its way into the text of the Constitution is irrelevant, against Stevens’ more focused reliance on what was actually in dispute in 1787-1789 (if there were any serious contemporary commentary post-Sept. 1789, one could say 1787-1791, but since there does not seem to have been, the narrow date range works for me).

When I embarked on the project that became Original Meanings many years ago, my genuine purpose was to develop a historically-grounded way of thinking about what the document originally meant. It supposed that there were four categories of evidence (broadly defined) that one could bring to bear: (1) the intentions of the framers, (2) the understandings of the ratifiers, (3) the intellectual legacy (which I think would include prior legal doctrine and understandings) on which both could draw, and (4) what I call the lessons of experience, meaning the inferences we can draw particularly about (1) and (2) from knowing something about the political history of the Revolutionary era proper and the way in which that affected and altered received understandings. As a “real historian” my inclination would be to give greater preference to (1) and (4) but the larger point was to think about the value of all four categories.

In writing a brief for Heller (and before that, Hamdan and Vieth) I tried to adhere to this methodology, and in reading the opinions in the first, with their avowed originalist emphases, I have kept the same strictures in mind. And that is why I am troubled by the idea that they are equally illustrative examples of law office history.

The Scalia opinion seems materially defective to me for several reasons. The most important, as noted earlier, is its explicit disdain for the legislative history of the Amendment, whether that is described in terms of the Convention’s framing of the Militia Clause, the public exchanges and ratification convention debates it sparked, or what we know of the progress of the Amendment itself through Congress. I understand that this position correlates with Scalia’s general skepticism about legislative history in statutory construction, but that does not alleviate my concern. Why? As a “real historian,” I think that all of the following points are relevant to any kind of serious originalism.

First, as opposed to Scalia’s reliance on the “normal meaning” of a “pre-existing” definition of militia, one point that the Convention debates of August 1787 and any of a number of secondary historical works establishes is that the definition of the militia was precisely what was at issue. This does not rule out the idea that there was a previous “normal” or “public” meaning available to ordinary citizens, but it also reminds us that nearly all of the key concepts of political life (e.g., the definition of “executive power”) came under a great deal of stress in the decade after 1776, making it essential to recover their meaning not merely from the best dictionaries available but also from the context in which they were used. Scalia’s version of originalism/textualism, as applied in this opinion, seems oblivious to the most important findings that historians from Edmund Morgan (writing on the Stamp Act) on through Bailyn, Wood, myself, and others have argued over the last half-century: that this was a deeply creative era in constitutionalism and political thought, and the idea that static definitions will capture the dynamism of what was going on cannot possibly be true. Next to bigger concepts like “constitution” or “executive power” or “rights,” fussing about the meaning of militia might seem small potatoes. But the point holds equally well.

(There is a deeper issue here that I also wonder whether the “public meaning” school has considered, much less addressed, relating to the 18th-century’s preoccupation with the plasticity of language itself. This is famously alluded to in Madison’s well-known but brief observations about language in Federalist 37, but one might wish to consult the broader discussion in Hannah Dawson, Locke, Language and Early-Modern Philosophy [Cambridge U. P., 2007]. It would be a great irony if the legal scholars’ emphasis on public meaning failed to take account of the skepticism of the period under study on this very point.)

Second, Scalia’s professed disdain for what was actually being debated allows him to avoid asking what became of those statements of 1787-1788 that seem to be most suggestive of the idea that the Second Amendment was conceived to cover private purposes of gun ownership. He makes passing mention of three usual suspects: the Dissent of the minority Antifederalists in the Pennsylvania convention; the lone recommendation against individual disarmament emanating from the NH convention; and Samuel Adams’s similar reference in the Massachusetts Convention. The most telling of these, as I argued in the brief, is the first (a) because it was published relatively early in the ratification campaign, and could thus have become a rallying point for anyone at all concerned with the security of a private right; (b) because it quickly became an object of Federalist ridicule, lying there ideologically inert; and (c) because that in turn meant that the ensuing debate really was about the militia as an institution, not an individual right that no one in 1789 understood to be on the table.

I see that I am myself lapsing into advocacy at this point, so I will yield the floor with this concluding observation: there are two quite different modes of originalist analysis at play in the two opinions, and clear choices therefore (beyond the outcomes) in asking which one delivers more analytically. From the vantage point of a “real historian” (or a “working historian,” to cite an important early essay of Bailyn’s), Stevens’ approach appears superior, not only because of result, but because it rests less on theoretical pronouncements that are difficult if not impossible to test and focuses more tightly on a salient “legislative history” of the provision in question.

Comments:

Let's see, you'd be one of the "real historians" who kept on defending the (anti-gun) academic fraud Bellesiles long after he'd been exposed, right?

Right, just checked, that's where I recall your name from.
 

actually, prof. lindgren wrote a couple of articles criticizing the bellesiles book shortly after it appeared ("counting guns in early america" and "fall from grace," both available on ssrn).
 

oops - apologies to brett -- wrong historian/academic entirely. don't know how i got them mixed up. long week.
 

This is simply the classic argument against Scalia's approach. And it makes a lot of good points.

On the other hand, Scalia has good points as well, about the impossibility of reading the mind of the legislature and of deciding which legislators' opinions to credit and which ones not to.

That said, the historical materials Scalia relies on have their own indeterminancies. The truth is absent a pretty clear consensus on what the original public meaning was, I don't see it as particularly MORE accurate than legislative history.
 

I hope that readers here recognize Prof. Rakove. Reading history happens to be one of my passions, and I hope that Prof. Rakove won't be embarrassed if I say that he's at the very peak of the profession over the last 40 years, in that small group which includes Bernard Bailyn and Gordon Wood.
 

This argument might have some merit if the language of the Second Amendment was at all vague or plastic.

However, there is very little apparent plasticity in the command of the operative clause: "the right of the People to keep and bear arms shall not be infringed." That is about as clear as language can get

Under no rule of grammar of which I am aware can the prefatory comment - "A well regulated Militia, being necessary to the security of a free State" - be considered a limiting phrase which would control the scope of the operative phrase. Rather, it is clearly a comment as to a purpose of the Second Amendment.

Consequently, to the extent that there is not an historical consensus as to the exact meaning of the prefatory comment, it is irrelevant to the legal interpretation of the Second Amendment because the operative clause is not limited no matter how that debate turns out.
 

However, there is very little apparent plasticity in the command of the operative clause: "the right of the People to keep and bear arms shall not be infringed." That is about as clear as language can get. Under no rule of grammar of which I am aware can the prefatory comment - "A well regulated Militia, being necessary to the security of a free State" - be considered a limiting phrase which would control the scope of the operative phrase. Rather, it is clearly a comment as to a purpose of the Second Amendment.

This is the sort of thing that pisses me off. The issue isn't one of "grammar", it is one of context. And yes, words without a prefatory statement may very well have a different meaning than words with a prefatory statement. Consider:

1. There shall be no sales at trade shows within the county.

2. The public safety requiring that guns be sold through licensed dealers, there shall be no sales at trade shows within the county.

Now, are you going to tell me that the prefatory clause has no bearing on what 2 means?

Look, in the end, I don't disagree with the bottom line position taken by Scalia and by Bart that there is an individual right to bear arms. But this is just a classic example of how silly the entire conservative rhetorical scheme on judging is. OF COURSE context matters, and prefatory clauses can render even seemingly unambiguous language narrower. That's what context does. Among other things, it helps us identify what the ambiguities are as well as helping us resolve them.

And when Bart says "I know of no law of grammar", he's not speaking as an academic expert on the English language. (Neither am I.) He's just popping off his mouth. He really doesn't care whether experts on interpreting English texts who have devoted their lives to studying meaning (including latent ambiguities) would agree with him or not. It's just a talking point.

Context always matters. Sometimes it doesn't change things (though actually I do think that the militia clause changes things even for Justice Scalia (especially with respect to how he interprets US v. Miller), though he won't admit it). Sometimes it does. But this idea put out by gun rights advocates who have no particular expertise on the workings of the English language that you can draw an artificial rule that "a preamble can never narrow an operative clause" is just unmitigated crap.
 

As I recall, of the 69 briefs filed, two were referred to as briefs of historians. I read both and thought Rakove's was superior, in spades, as the other focused excessively on English law and not on the issues faced by the Framers. (I have not as yet read the other 67 briefs, and old age may keep me from being able to accomplish this, especially since the post-Heller conversations take up so much time.) I hope Prof. Rakove will contribute more conversation at this Blog.
 

I did recognize him, Mark. As I pointed out, he was one of the professional historians who were defending Bellesiles' fraud after he was exposed.

This demonstrates at best bad judgment where gun control has saliency. His status as a professional historian doesn't mean squat, in that instance he proved that he could be wrong where even moderately informed laymen had no trouble getting it right, if gun control was salient.

This isn't an ad hom, I'm just pointing out his judgment on this subject is demonstrably lacking.
 

I have read the bloggers' award winning book on original meanings and found it very good. I also recall an op-ed where he strongly rejected the gun rights view. I found it much less good.

Anyway, I don't agree with the sentiment that Scalia was noticably worse than Stevens. He could have been bad too, but Stevens was not better. To suggest as much, sorry, is wrong.

For instance, take Stevens' quickie dismissal of the English Bill of Rights, an influence of much more than the 2A. One thing alone -- yeah, it protected Protestants. In this country, we have religious freedom.

Yes, there they had legislative supremacy. Our system is different. But, this doesn't erase the English bill was quite important to our development.

Likewise, Stevens might have cited the debate, but was it honest? In his view, even commentators interpreting things in the turn of the 19th Century that didn't agree with him basically wasn't aware of the context of the amendment's ratification.

Such claim of ignorance really needs more proof than supplied. Likewise, as Sandy noted earlier, Stevens' statement of how clear everything is (and the idea they framers surely didn't honor some natural right of self defense) "risible" to quote Stevens.

Stevens' opinion had its good side, probably. But, to ignore its depths is really disgraces the historian here who should know better. It suggests a bias that leads the like of Brett to (on some level correctly) sneer.
 

This isn't an ad hom, I'm just pointing out his judgment on this subject is demonstrably lacking.

In this particular case, you're so far out of your league that it's laughable. You might as well try going out to the pitcher's mound and throwing a fastball by A-Rod.
 

Oh, stuff it. Anyone with even a layman's knowledge of the relevant material recognized a few pages into Bellesiles' book that he was playing fast and loose with the truth, and this dude was defending the accuracy of the work long after it had been demolished.

I'm sure he's a decent historian where his feelings don't enter into the matter, but he's proven that on THIS subject, his judgment is lousy.

Sorry, you don't get to defend an academic fraud long after it's exposed, and not have it come back to haunt you when you start opining on the same topic.

Out of my depth? I knew Bellesiles was a fraud before Rakove did, I think that says something.
 

Dilan:

A prefatory comment like that which precedes the Second Amendment and a number of state constitutional amendments of that era suggests a reason for the operative clause which follows.

Gramatically, a prefatory comment is positive language adding to the operative right by providing an example rather than negative language limiting the right in some way. The Second Amendment prefatory comment has no negative language from which to infer limits on the operative right.

Furthermore, the language of the operative clause confirms the plain grammatical reading of the prefatory clause as a positive comment rather than a limiting clause.

The command in the operative clause is that the right "shall not be infringed." This command clearly states that no limits shall be placed on the right and only makes sense if the prefatory clause is a positive comment on what is included in the operative right.

It makes no grammatical sense to interpret the prefatory comment as limiting the right to the subset of militia duty and then follow that clause with a command that the right to keep and bear arms shall not be limited.

Let us rewrite the First Amendment to read like the Second Amendment:

"An exchange of political views being necessary for the operation of a free State, Congress shall make no law abridging the freedom of speech or of the press."

Can anyone here offer a grammatical case that the prefatory comment here limits the operative command that "Congress shall make no law abridging the freedom of speech or of the press" to protect only the "exchange of political views" and nothing else?
 

Can anyone here offer a grammatical case that the prefatory comment here limits the operative command that "Congress shall make no law abridging the freedom of speech or of the press" to protect only the "exchange of political views" and nothing else?

Bart, I'll tell you what we can offer: your own juvenile arguments.

Exhibit A would be your own arguments here on this blog against the dissemination of "enemy propaganda" which happens to be "speech" and which according to your argument de jure is an absolute right which can in no way be infringed.

You are so utterly inconsistent in your application of "legal analysis" that your words carry all the heft of dried leaves blowing in the wind.
 

Thanks to Professor Jack Rakove for a great post (and for his great overall scholarship in this area). And three cheers for Dilan for saying what ought to be obvious. I would add that it makes no sense to say that the prefatory clause states a purpose, and then read the purpose out of the so-called "operative" clause, (which of course says nothing about self-defense in the home or otherwise). Finally, if the court is going to play the role of the Supreme Court of Historical Appeals, it is incumbent on it to look at all the historical evidenced, not what conveniently and selectively supports an ideological position. Justice Scalia ignores evidence of legislative intent and debates so he can impose his own personal views. Breyer is correct that it is Scalia's "methodology" which empowers judges. The legal question is not whether the Second Amendment protects an individual, collective or civic right at some point in history, but whether a particular current legislation burdens that right unreasonably.
 

On the PBS "News Hour" last evening Prof. Douglas Kmiec appeared and discussed the Heller case. He lamented the fact that both the majority and dissent were so far apart on the original meaning of the Second Amendment.

Which started me thinking: Maybe J. P. Stevens' opinion went into great historical analysis and detail because he wanted to upset the entire originalist applecart---to show that on this amendment's language two different interpretations of the historical record were permissible. His side garnered 4 votes, Nino's 5, but in the end we find outrselves with where Kmiec finds himself---realizing that there can be no agreement on such a fundamental tenant of originalism.

All and all, Stevens' opinion may be one of the most subtle, sophisticated opinions in decades.

The war over originalism is over.

dah
 

Professor Rakove's brief was a fine and exhaustively thorough historical treatment of the militia in America. It would have been great if ever Article I, Section 8, Clauses 15 and 16 needed to be interpreted by the Supreme Court. For understanding the Second Amendment -- not all that useful.

However, this attempt at misdirection did not fool the majority, which focused on the right being described, not on the one stated reason why the right benefited the United States of America.

The historical English origins of the right were apropos here for two reasons: the right of the Englishman to be armed had never been tied to militia service, and the rights of Americans equalled or exceeded those of Englishmen in every instance.

I loved Prof. Milton Rakove's books by the way.
 

My apologies for the "Oh, stuff it!", but I stand by my assessment of a historian who defended a fraud far too long.
 

okay, now i see the proper principles of statutory construction.

take any part of a law that you like and call it "the operative clause".

take any parts that you don't like, and call them "prefatory comments".

and you expect anyone to find that plausible as a substitute for argumentation?
 

Scalia also used a largely original understanding approach in the Giles confrontation case.

Souter concurred, but noted that (ala Mark Tusnet in "Out of Range") that didn't really decide the question.

Honestly, I wish Souter concurred here. But, c'est la vie.
 

"An exchange of political views being necessary for the operation of a free State, Congress shall make no law abridging the freedom of speech or of the press." Can anyone here offer a grammatical case that the prefatory comment here limits the operative command that "Congress shall make no law abridging the freedom of speech or of the press" to protect only the "exchange of political views" and nothing else?

Actually, Bart, if the First Amendment read like that, the argument that it only applies to political speech (made by Bork in his famous 1970 law review article, "Neutral Principles and First Amendment Analysis", would be quite a bit stronger than it is.

Your argument is nothing more than a result-oriented ipse dixit.
 

My apologies for the "Oh, stuff it!", but I stand by my assessment of a historian who defended a fraud far too long.

While I appreciate the apology, it wasn't necessary.

As for Prof. Rakove, his reputation stands far beyond my poor power to add or detract.
 

At my age I don't worry too much about my reputation any more. Whether the Cubs' starting pitching will hold up is another matter.

Anyone who wants to check my record on l'affaire Bellesiles can read the following postings on two H-net listservs
H-Law for 4/18/2001
H-OIEAHC FOR 5/28/2002 and 1/27/2003
The first of these contains the following comment: "The criticisms raised about Bellesiles'
documentation deserve serious consideration, and if he has really
screwed up, or distorted the evidence, then he should be held
accountable, and if he can't defend his use of sources or rebut and
refute the criticisms, then his work should be discredited." I think I was also quoted to that effect in one or two published news articles on the matter. It remains an open question in my mind how much of Bellesiles' problem is to ascribed to incompetence, how much to fraud, but in either case it is inaccurate to portray me as a diehard defender. I thought (still think) that the questions he raised are interesting ones, and that we know a lot less about the use of firearms in colonial America than we should. That knowledge, if attained, would not be relevant to the "public meaning" style of originalism that I thought was the critical object of my original posting, but it would be to the explicitly historical approach that I describe here because it bears directly on the question, how were the framers and ratifiers of the Constitution and Second Amendment thinking about the recent or prospective role of the militia. When, for example, George Mason worried about the militia being disarmed under the Constitution, he was not envisioning the BATF going door to door seizing weapons, but Congress failing to keep the militia well-armed (or regulated).

Jack Rakove
 

kid and dilan -- Context, or rather structure, is useful to figure out the meaning of the Second Amendment. First of all, we can presume the Second Amendment refers to a right of individuals because it is prefaced by the First Amendment, and followed by the Third through Ninth Amendment, all of which refer to rights of individuals against the power of their government. Only after all of these does an amendment mentioning to state power appear. Had the Second Amendment referred to state powers or state rights, it would have been put next to the Tenth Amendment. The Constitution was well organized by subject; it does not skip around.

Second, we can use grammar to study the structure of the amendment. Grammatically speaking, the Second Amendment contains only one clause, the preface being a verbless noun constituting an absolute adjective. "The right of the people to keep and bear arms shall not be infringed" constitutes a complete thought all by itself, with a subject "right" and a predicate "shall (not) be infringed." "To keep" and "(to) bear" modify the noun "right" and explain what sort of right is being referred to. The right belongs to the people just as in the rest of the first nine amendments.

The other part of the sentence is the noun "militia," modified by the adjective "well-regulated" and by the participial phrase "being necessary to a free state." This part cannot express a complete thought on its own, and merely modifies the sense of the sentence.

No words are present in the sentence that would limit the right to militiamen, or condition the right on militia membership. No "onlys" or "provided that" etc. etc. as were used in contemporary documents. Therefore, the introductory phrase does not limit the right, but merely describes a reason why and how the uninfringed right can benefit the U.S.
 

First of all, we can presume the Second Amendment refers to a right of individuals because it is prefaced by the First Amendment, and followed by the Third through Ninth Amendment, all of which refer to rights of individuals against the power of their government.

I happen to agree with your conclusion, but it's problematic, to say the least, from an originalist perspective.

A great many people in 1791 did not see these amendments as protecting individual rights per se. The official Federalist position, remember, was that no BoR was necessary because the limited powers in the Constitution left Congress unable to affect such rights. Thus, for example, Hamilton in Federalist 84:

"Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

In this view, and equally in the view of many anti-Federalists, the BoR was NOT an expression or list of individual rights, it was a confirmation of the limits on the power of the federal government (specifically, the necessary and proper clause).

This explains the language of the 1A -- not "the people have a right to free speech", but "Congress shall make no law" (and it's very hard indeed to see the Establishment Clause as expressing an individual right). Or, take the takings clause: " nor shall private property be taken...." That's a restriction on government's power, not the expression of a right. Or at least it would have seemed that way to many in 1791.

The grammar argument is no more persuasive than multiple other such arguments.

In saying all this, I'm not even denying your conclusion that the 2A protects an individual right. My sole point is that neither the history nor the text are definitive.
 

Former law student:

In the end, I don't disagree that the 2nd Amendment protects an individual right. And I do agree with the "context" (i.e., look what comes before an after it) argument you make on that.

But what you and Bart are claiming is some sort of "rule" of grammar is nothing of the sort. The Second Amendment is not an English assignment-- it is a legal text. Like all legal text (statutes, constitutions, contracts), there are a number of established tools to construe it. And the idea that these tools DO NOT and CANNOT include the prefatory clause that is part of the very provision we are construing is stupid. Idiotic. Imbecilic. Unworthy of serious consideration.

This isn't the way we construe statutes, it isn't the way we construe constitutions. And whether or not you believe there is some "rule of grammar" that requires it (in fact, I think most English professors would seriously dress you down and say you don't know what you are talking about, but I am not expert enough on English grammar to know for sure), the fact is that the RULES OF LAW, i.e., of construction of legal text, which are what matters here, hold that context, including prefatory text, can change the interpretation of a text.

And for good reason-- see my earlier 2 examples, in which an apparent ban on the sale of any item at a trade show becomes a ban on gun sales only through a prefatory clause. That example is grammatically identical to the Second Amendment.

The truth is, you guys aren't honest enough to say "I think the Second Amendment should protect an individual right not connected to militias because I really think gun rights are important." That's what you actually believe. But instead of being honest, you guys make up "rules of grammar" and pretend to be experts on English usage, which you aren't, and deliberately disregard the ACTUAL rules of statutory construction which say that prefatory clauses count.
 

I should add one other thing. There's a whole bunch of jurisprudential philosophy works (I am thinking of HLA Hart and the like) regarding "no vehicles in the park" and what it might mean. In other words, while conservatives live in their alternative universe where made up "rules of grammar" trump established methods of interpretation, legal philosophers (who are about twice as smart as conservatives) have been bandying this problem about for 50 years and have much deeper and more nuanced thoughts about how to interpret a text.

But you would have to care about ideas rather than just winning elections for this stuff to matter to you, and I've seen no evidence that you folks really do.
 

I'm surprised that Scalia did not suggest that "well regulated militia" may have related to rations such as prunes or metamucil (assuming there was metamucil back then).
 

Mark Field -- I accept your phrasing that the first eight amendments limit the power of government in specific enumerated ways.

Dilan -- judging from the prefaces to California statutes, a statute's stated goal is irrelevant to its interpretation. (The People of California find and declare as follows...) But here is the rule you accused me of making up:

ABSOLUTE PHRASE

Usually (but not always, as we shall see), an absolute phrase (also called a nominative absolute) is a group of words consisting of a noun or pronoun and a participle as well as any related modifiers. Absolute phrases do not directly connect to or modify any specific word in the rest of the sentence; instead, they modify the entire sentence, adding information. They are always treated as parenthetical elements and are set off from the rest of the sentence with a comma or a pair of commas (sometimes by a dash or pair of dashes). Notice that absolute phrases contain a subject (which is often modified by a participle), but not a true finite verb.

* Their reputation as winners secured by victory, the New York Liberty charged into the semifinals.
* The season nearly finished, Rebecca Lobo and Sophie Witherspoon emerged as true leaders.
* The two superstars signed autographs into the night, their faces beaming happily.

When the participle of an absolute phrase is a form of to be, such as being or having been, the participle is often left out but understood.

* The season [being] over, they were mobbed by fans in Times Square.
* [Having been] Stars all their adult lives, they seemed used to the attention.
 

alan said...

I would add that it makes no sense to say that the prefatory clause states a purpose, and then read the purpose out of the so-called "operative" clause..

Neither I nor the Heller majority are reading the militia purpose out of the operative clause. Rather, an armed citizenry is necessary to the existence to the general militia made up of all the People.

In reality, it is the dissent who wishes to disarm the general militia made up of all the People by not only limiting the right to the militia, but also truncating the definition of militia to the federalized National Guard.
 

dilan said...

But what you and Bart are claiming is some sort of "rule" of grammar is nothing of the sort. The Second Amendment is not an English assignment-- it is a legal text. Like all legal text (statutes, constitutions, contracts), there are a number of established tools to construe it. And the idea that these tools DO NOT and CANNOT include the prefatory clause that is part of the very provision we are construing is stupid. Idiotic. Imbecilic. Unworthy of serious consideration.

To start, the first rule of constitutional interpretation is to read the actual text. One cannot read English without applying the basic grammatical precepts of the language. To argue that basic grammar has not place in constitutional interpretation is absurd.

Furthermore, neither I nor the Heller Court wrote out the prefatory comment.

Once again, the prefatory comment is a positive statement which implies that keeping and bearing arms for service if the militia is called up is one purpose for the following operative right.

If the drafters of the Second Amendment wanted to use the initial clause to limit the operative right, they would have used limiting language in the initial clause and would not have used language implying an uninfringible right in the second clause.

Basic grammar.
 

Mark Field -- I accept your phrasing that the first eight amendments limit the power of government in specific enumerated ways.

Then can I assume you agree that these limits apply to the states via the 14th A?
 

merely modifies the sense of the sentence

Right. Those people who are inclined to approach this debate on the basis of grammar all agree that the first part (the absolute phrase) modifies the sense of the entire sentence.

Dilan rightfully calls you on your assertion because there is nothing inherent in the concept of an "absolute phrase" that determines how the sense of the sentence is modified; the notion that the absolute phrase is always a positive statement or a mere example--but never a limiting factor--is ridiculous.

"Weather permitting, the People can fly kites in the park."

"God willing, we'll have a thousand customers tonight."

"All things being equal, higher oil prices will lead to lower oil demand."
 

Is a handgun the first weapon one is issued
when one joins the Militia?
 

"Neither I nor the Heller majority are reading the militia purpose out of the operative clause. Rather, an armed citizenry is necessary to the existence to the general militia made up of all the People."

Actually, I'd argue that the majority DID read it out, when they pulled that "common civilian use" slight of hand, to avoid admitting that the arms covered were any suitable for militia use.
 

"God willing, we'll have a thousand customers tonight."

I'm surprised but pleased at the suggestion that the introductory phrase is a mere incantation, like inshallah.
 

"Our starter, our numbers 2 & 3 back-up all being injured, you'll be put into the game at QB."
 

Brett:

IMHO, Scalia arrived at an historically accurate definition of arms.

Militia arms at the time of the Constitution were in fact small arms commonly owned by the People for private use, but not all arms suitable for military use.

This is also a useful definition to incorporate evolutionary technological advances in small arms such as cartridges, bolt action and semi automatic feeds without having to extend to exponential absurdities like suitcase nukes.

Automatic feeds fall into a gray area. However, I am willing to sacrifice the right to possess automatic firearms in exchange for a return to a robust guarantee to possess and carry nearly all other small arms.

I do not believe this limit would cripple the check of an armed citizenry on the government. Scalia implied that an Armed citizenry would have little chance against our modern standing Army. I completely disagree. The Army had a difficult time checking about 5 million armed Sunni in Iraq. In the United States, an tyrannical Army would face around 200 million armed Americans.

Scalia is offering a 90% solution. Do not look that gift horse in the mouth.
 

I'm surprised but pleased at the suggestion that the introductory phrase is a mere incantation, like inshallah.

Then I encourage you to use it in everyday speech to savor the logical consistency:

"A well regulated militia, being necessary to the security of a free state, the Yankees will win the pennant this year."

"A well regulated militia, being necessary to the security of a free state, my Uncle Louie won't come to Thanksgiving dinner drunk again."
 

"A well regulated Militia, being necessary to the security of a free State, shall have the obligation to provide prunes and/or metamucil to is members, as they keep and bear arms."
 

In regards to the comments re arms, if you read over the various state constitutional provisions that detail the arming of the militias, as well as the Militia Act of 1792, the arms that militiamen were required to equip themselves with were long weapons, not pistols. Officers, as well as cavalry soldiers such as dragoons, were the only troops who needed pistols at the time. The average farmer/militiaman during the Revolution did not purchase a pistol to defend the family homestead, put food on the table, or go to war when required. It would be interesting to ponder whether a revolver or colt-45 would have passed the Miller test in 1939. Justice Silberman of the DC Circuit certainly believes that modern handguns, although most hold multiple rounds and many are semi-automatic, are obviously protected as lineal descendants of the original breach-loading flintlocks. Is this Kyllo-esque logic what the Framers really had in mind, though?
 

former law student:

The "rule" you quoted (without any source citation) says NOTHING about interpretation. (Not surprising, because grammar and interpretation are two separate disciplines.)

Again, go back and look at my 2:10 post near the top of the thread. I set out two sentences, one with a gramatically identical prefatory clause to the one in the Second Amendment. They clearly have two separate meanings; the prefatory clause clearly narrows the meaning.

What I accuse you and others of making up is this principle that as a matter of INTERPRETATION, prefatory clauses never narrow the operative clause. There is no such "rule"; indeed, there are uncountable examples where it has and does.
 

To start, the first rule of constitutional interpretation is to read the actual text. One cannot read English without applying the basic grammatical precepts of the language.

There is no basic "grammatical precept" that rules out INTERPRETING texts in their context, including prefatory clauses. Rules of grammar tell us how to put words together-- they don't prescribe ABSOLUTE rules that COURTS must follow when interpreting LEGAL DOCUMENTS.

And the rules of interpretation-- which unlike your complete unmitigated BS grammatical rules, actually CONTROL the issue of how the Second Amendment should be construed, PERMIT the use of prefatory clauses. And for good reason-- check out my 2:10 post near the top of the thread and you will see why.
 

so .. here's a question ..ince the gov't can't restrict one's right to bear arms .. why are there bans on firearms in all the national parks ?? and [2] will Heller change that ??
 

dilan, your sentence is not parallel to the Second Amendment, and your prefatory phrase changes nothing. The independent clause says there will be no sales of anything, and guns are merely a subset of anything. The prefatory phrase explains the reason to bar the sale of this subset.

A parallel sentence is, A well-regulated household, being necessary to the tranquility of a husband, the right of women to do housework, shall not be infringed.

Do you really believe that such a sentence would prohibit husband-free women from doing housework?
 

Do you really believe that such a sentence would prohibit husband-free women from doing housework?

Do you really believe it would allow strange widows to wander into your house and do housework?
 

Dilan:

To the extent that legal interpretation is different from grammar, here are the principles of textual construction which apply here:

Noscitur a sociis: To the extent that the prefatory comment is ambiguous, it's meaning can be determined by reference to unambiguous operative clause. Because the operative clause commands that the right shall be not limited, the prefatory comment cannot be interpreted as a limiting provision.

Avoiding Absurdity: It is absurd to interpret the prefatory comment as a limiting provision when the operative clause unambiguously commands that the right shall not be limited.

Clear Statement Rule: A provision of the Constitution shall not be interpreted to abridge long standing rights of individuals. See the scholarship offered by the majority tracing the right to keep and bear arms back hundreds of years into English history.

In pari materia: All similar combinations of prefatory comment and operative clause in state constitutions drafted at that time have been interpreted the prefatory comments as simply noting a single but not exclusive purpose for the operative clause.
 

The Green Bag has published several interesting articles on the problem of identifying the actual text. It is surprisingly complicated. As relevant here, the commas may or may not be part of the text, and the presence may affect meaning.
 

I'll sign on to the "originalist" modes of interpreting the Second Amendment -- any of them -- so long as we all undestand that the "right" being protected consists solely of a right to keep only those weapons that existed at the time of the framing of the Constitution. Enjoy your flintlocks and front-loading muskets, gentlemen!
 

dilan, your sentence is not parallel to the Second Amendment, and your prefatory phrase changes nothing. The independent clause says there will be no sales of anything, and guns are merely a subset of anything. The prefatory phrase explains the reason to bar the sale of this subset.

If you believe this, you will never be a judge.

Look again. Sentence #1 says that no sales at any trade shows are permitted. Sentence #2 says that no GUN sales at trade shows are permitted. It's clear as day.

You guys are constructing an artificial rule that you will IGNORE crucial context and get intended meanings WRONG in order to ensure that you don't have to discuss well regulated militias. It is the worst type of unprincipled judicial activism, which is of course all too typical of conservatives who consistently refuse to enforce the laws as written or defer to the political branches.
 

Bart:

I don't want to start a long thread with you on statutory construction. Suffice to say, none of the doctrines that you identify bar the use of purpose clauses to interpret statutes or constitutional provisions. See Padilla v. Hanft, 4th Cit. 2005 (purpose clause of Authorization to Use Military Force supports adoption of broad interpretation of provision); Michigan Bell Telephone v. MCIMetro Access, 6th Cir. 2003 (construing purpose clause of telecommunication statute to aid in interpretation of statute); compare Cutshall v. Sandquist, 6th Cir. 1999 (purpose clause enacted AFTER commencement of litigation receives no weight).

Really, your arguments in interpretation boil down to "the framers may have told us this important information about what they were doing, but I refuse to consider it because I am a judicial activist conservative who doesn't enforce constitutional provisions as written and believes that unelected judges should impose their will over the democratic choices of the majority".
 

Mr, DePalma,

so glad to see you on another discussion about grammar. perhaps you will return to address the grammatically proper reading the 1A's "no law respecting an establishment of religion" we discussed before, now that grammar is once again front and center:

nerpzilla said...

BD: Establishment is the act of forming an organization or, in this case, a state religion. The Establishment Clause text nowhere calls for a broader separation of church and state in all matters.

The clause states “Congress shall pass no law respecting an establishment of religion.” The preposition “of” is used instead of “a” because of the general aspect of the clause. Your reading reads out the “of” and reads in “a,” making the clause specify no establishment of a national religion. By using “of,” the clause no longer discusses the establishment of a single religious sect, but instead, “establishment of religion” must be read together.

To start, let me thank you for your thoughtful response which actually addresses, rather than sidesteps, my textual argument.

I do not see how the use of "of" rather than "a" changes the meaning of "establishment." Establishment means the creation of an organization or thing. In this case, the organization or thing being established is "religion." Religion established by the state is by definition a state religion.

“respecting” is specifically chosen also – early proposals also had “touching” as the word – to create a broad nature of the amendment.

"Respecting" simply means in regard to. Thus, the Establishment Clause merely prohibits Congress from passing any laws in regard to establishment of religion. I agree that "respecting" is a broad term, but its prohibition is still limited to the controlling phrase "establishment of religion."

In order to arrive at their various holdings that the government cannot become overly entangled in religion, the Courts had to write out the term establishment from the Establishment Clause to have it read "Congress shall make no law respecting...religion." That is the only way you can textually sidestep the controlling term on the Establishment Clause.

This was not some “personal stance” of Jefferson’s, both him and Madison felt it was crucial to the health of the republic to keep church and state separate."

The fact that Jefferson and Madison may have strongly believed that a wall between church and state was crucial to the health of the Republic does not remove this belief from the realm of personal opinion. This was not the argument being made by Madison or anyone else among the drafters. Madison spoke of stopping the government from adopting a religion and forcing citizens of other faiths to conform to that religion. He did not change this argument as the Establishment Clause developed and added the word "respecting."
# posted by Blogger Bart DePalma : 12:40 PM
Monday, June 25, 2007


nerpzilla said...

Mr DePalma- I must disagree with your textual reading. the clause states:

"Congress shall make no law respecting an establishment of religion."

an is an article. it can only modify a noun. "establishment" is therefore a noun, and "of religion" is a preposition modifying "establishment." "an establishment of religion" is the same as a "religious establishment." Therefore, Congress shall make no law "respecting a religious establishment." This means, as the founders understood it to mean, the national government was completely barred from making any laws dealing with religious institutions.

...


I was considering bringing this point up in support of my argument that Mr. Madison's later position advancing a stricter separation of church and state is both contrary to the language of the actual Establishment Clause and to the interpretation of that provision which he sold to other drafters during the constitutional convention.

Mr. Madison's veto statement is no different from one of Mr. Bush's signing statements advancing his interpretations of his Article II powers. While Bush and Madison are free to advance their own personal interpretations of the Constitution, these opinions bear no more weight than those of you and I.

While apparently there are some who think your opinion is superior to J-Mad or TJ's, I must humbly side with the Founders.

I had a good chuckle upon reading charles' post concerning the relative trustworthiness of myself and Mr. Jefferson. While I might start purring if I keep getting stroked that way, I am going to be a wet blanket and observe that opinions are irrelevant.

Rather, we need to stick with the objective facts. The Establishment Clause says what it says and the drafters' arguments during the debates, including that of Mr. Madison, are on the record. For the reasons I have advanced before, I would rest my case that the Establishment Clause requires and was meant to require only that Congress may not establish a state religion.
# posted by Blogger Bart DePalma : 4:01 PM

Bomb Throwers and Dismantlers: Some Notes on Today's Supreme Court Cases [Discussing last year's Morse decision, aka "Bong hits for Jesus" case.]

If basic grammar is so important in the context of the second amendment, it seems strange that you would ignore the plain text (no difference between "of" and "a[n]") in the First. In the second, you have argued that
To start, the first rule of constitutional interpretation is to read the actual text. One cannot read English without applying the basic grammatical precepts of the language. To argue that basic grammar has not place in constitutional interpretation is absurd, yet you have, in the past, apparently held different beliefs, not concerning yourself with whether an "an" or an "of" was used, and whether the word "establishment" is grammatically an noun or a verb. Is this a recent change, or is there a reason to the inconsistency? If the latter, under your jurisprudential theory, which amendments need to be strictly construed with proper grammar, and which ones can we simply substitute other parts of speech so that the text supports predetermined results?
 

Dilan:

I would suggest that this variation on the First Amendment is a more accurate version of the Second Amendment format than your gun show hypo because it has a general comment on the importance of one form of speech followed by the First Amendments actual operative command:

"An exchange of political views being necessary for the operation of a free State, Congress shall make no law abridging the freedom of speech or of the press."

Can you offer a grammatical case that the prefatory comment here limits the operative command that "Congress shall make no law abridging the freedom of speech or of the press" to protect only the "exchange of political views" and nothing else?
 

nerpzillicus said...

"an" is an article. it can only modify a noun. "establishment" is therefore a noun, and "of religion" is a preposition modifying "establishment." "an establishment of religion" is the same as a "religious establishment." Therefore, Congress shall make no law "respecting a religious establishment."

This means, as the founders understood it to mean, the national government was completely barred from making any laws dealing with religious institutions.


The second point does not follow from the first.

Conceding for the sake of argument your grammatical construction, the results are still the same. "Establishment of religion" and "religious establishment" both refer to a state religion.

The problem with your grammar is that the phrase "establishment of religion" implies a future act wile your revised term "religious establishment" implies an event that has already occurred. Given that the First Amendment is forbidding future acts, the first phrase makes more sense.

Once again, in order to arrive at their various holdings that the government cannot become overly entangled in religion, the Courts had to write out the term establishment from the Establishment Clause to have it read "Congress shall make no law respecting...religion."
 

"An exchange of political views being necessary for the operation of a free State, Congress shall make no law abridging the freedom of speech or of the press." Can you offer a grammatical case that the prefatory comment here limits the operative command that "Congress shall make no law abridging the freedom of speech or of the press" to protect only the "exchange of political views" and nothing else?

Bart, this has nothing to do with grammar. It has to do with two things-- INTERPRETATION and your political ideology.

In fact, if the First Amendment had that language, my bet is that no matter what you claim, it would be a lot more likely that Bork's 1970 view of the First Amendment (i.e., that it only applied to political speech) would be adopted. And even if it were not adopted wholesale, you would see the exceptions with respect to things like obscenity and other nonpolitical speech interpreted a lot more broadly than they are.

And the reason is that despite what you say, as a matter of INTERPRETATION, a prefatory clause can often be an important guide to what the author means to include in the "operative" clause and what he or she does not.

As I said, what is really going on-- and what you won't admit-- is that result oriented judicial activists like yourself who substitute your personal views for the law as written and who substitute the decisions of unelected judges for the work of democratically elected legislatures don't like the "well regulated militia" language, don't want it to have any impact on the interpretation of the Second Amendment, and therefore latched onto whatever argument they could think of to deprive it of any effect.

As I said, I think it is truly sad that there are people out there who believe that unelected judges should impose their own policy preferences over those of democratically elected bodies. As so many intelligent commentators have told us, this is the worst kind of tyranny. And Bart, your weak arguments on this issue are clearly a fig-leaf to cover the actual agenda of overriding the wishes of the American people as expressed by the decisions of their local governments.
 

Mr. dePalma asks, "Can anyone here offer a grammatical case that the prefatory comment here limits the operative command ..."?

I would suggest reading the Amicus of the Professors of Linguistics and English.
 

As a friendly amendment to Dilan's point immediately above, it is no affront to grammar to use the prefatory clause -- "An exchange of political views being necessary for the operation of a free State" -- as a guide to what one of the key terms of operative clause -- to wit, "the freedom of speech or of the press" -- actually means. This is a definitional question, not a question of grammar. "[T]he freedom of speech or of the press" is not self-defining. Indeed, the inclusion of the definite article suggests that the drafter had in mind a particular notion of a particular species of freedom in mind.
 

"Can anyone here offer a grammatical case that the prefatory comment here limits the operative command ..."? --> the Amicus of the Professors of Linguistics and English.

The PLE brief was not able to offer a grammatical case that the prefatory phrase limits the operative command. They tried but failed to refute the conclusion of the DC Circuit court that the prefatory phrase articulates only a purpose, not its “exclusive” purpose, Parker, 478 F.3d at 386, 389, and the purpose actually articulated in the Amendment is only the Amendment’s “most salient political benefit,” which the court described as being the preservation of “the militia.” Id. at 390.

To attempt to show that the prefatory phrase limited the operative command, the PLE were reduced to handwaving that "bear arms" had an exclusively military meaning, and that "well-regulated" meant that the militia was subject to regulation, instead of that the militia possessed the qualities expected of the militia, as in the parallel idioms of well-regulated household, mind, young man, young woman, child, etc.

By separating "well" from "regulated," the PLE put the cart before the horse in the following. Note that their interpretation of the meaning of the term "well-regulated" after the word "but" in the following is quite reasonable, while their interpretation in the beginning of the following sentence is quite fanciful:
The use of the past participle “regulated” in that modifier suggests a militia that not only is “subject to” regulation under the militia laws, but also is in possession of the qualities that flow from participation in regular military exercises—orderliness, discipline, proficiency with arms, knowledge about maneuvers and so on.
 

In a 5 to 4 decision on June 12, 2008, the United States Supreme Court in Boumediene v. Bush, ruled that detainees being held at Guantánamo Bay can challenge their detention in federal civilian courts. In other words, five justices conferred constitutional rights upon non-citizen illegal combatants. The constitution does not even contemplate such an interpretation, but yet, Justices Kennedy, Ginsburg, Souter, Breyer and Stevens found that right in the document.

If the five justice above found a right in the constitution that was not even contemplated, then surely, it is very difficult to see how four of those justices failed to find an individual right to arms in the Second Amendment. You see, the Second Amendment does talk about the right of the people, and since Justices Ginsburg, Souter, Breyer and Stevens seem to have an affinity for “erring” on the side of creating rights for individuals, it is very difficult to see how they failed to find an individual right in the Second Amendment.

Perhaps to much weight was given to ideology.
 

In a 5 to 4 decision on June 12, 2008, the United States Supreme Court in Boumediene v. Bush, ruled that detainees being held at Guantánamo Bay can challenge their detention in federal civilian courts. In other words, five justices conferred constitutional rights upon non-citizen illegal combatants. The constitution does not even contemplate such an interpretation, but yet, Justices Kennedy, Ginsburg, Souter, Breyer and Stevens found that right in the document.

If the five justice above found a right in the constitution that was not even contemplated, then surely, it is very difficult to see how four of those justices failed to find an individual right to arms in the Second Amendment. You see, the Second Amendment does talk about the right of the people, and since Justices Ginsburg, Souter, Breyer and Stevens seem to have an affinity for “erring” on the side of creating rights for individuals, it is very difficult to see how they failed to find an individual right in the Second Amendment.

Perhaps too much weight was given to ideology.
 

Whether the method used was cogent or not, anyone who reads Article VI of the Articles of Confederation can clearly determine that militia was not an organized State body as that was prohibited.

There are many letters from members of congress showing what they thought of the 2nd Amend such as the one from Lee: “To preserve liberty, it is essential that the whole body of the people
always possess arms, and be taught alike, especially when young, how to use
them." from Letters from the Federal Farmer to the Republic (1787-1788), Letter XVIII

Let us not use outcome based analysis.
 

Given Original Meanings' excellent debunking of the value of trying to ascertain the intent of people focused about slavery on almost every issue, it is nonetheless delightful to hear Prof. Rakove's analysis of original intent on the individual v. militia gun issue. What I wonder is why the common ground sought by modern federalists is not based upon the notion that the 2nd Amendment's expressed militia rational can now only clearly (and therefore constitutionally per J. Posner) serve to reserve all measures of gun control to the States. Perhaps the Founders, all too cognizant of possible civil war and sensing the weakness of the 9th and 10th Amendments, sought to cement the ability to defend themselves in the 2nd.
 

Professor Rakove is a "real historian" who has himself engaged in law office history in his Heller amicus brief. For those who want to see exactly why the Second Amendment dispute has been ongoing for over four decades, read this History News Network article severly criticizing Rakove's erros of fact and off-track history: http://hnn.us/articles/47238.html
 

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