Balkinization  

Wednesday, July 02, 2008

Does the Constitution protect a substantive right to hunt?

Sandy Levinson

I am inspired by some of the responses to Jack Balkin's last post on Heller; I agree completely with Jack's argument, and I'm curious about the implications of some of the respondents' arguments.

Let's assume that it is legitimate to use a firearm to hunt, and let's even assume that that's what anyone in the late 18th century would (properly) have believed and, indeed, what many Americans have believed since then. But is there a right to hunt per se? Imagine, for example, that animal-rights supporters take power in some state and simply outlaw the hunting of any and all animals. (Any killing of predators will be taken care of by professional "animal control officers" who will uniquely have the right to use deadly force against them.) That would, obviously, also make it illegal to use your gun (or bow or arrow, etc.) to hunt an animal.

Would any reasonable person argue that the Constitution would prohibit a state (and perhaps Congress as well, operating under the same view of the Constitution that legitimizes the Endangered Species Act) from outlawing all hunting and thus making rifles, shotguns, etc., absolutely "useless" for their most common intended purpose? If one finds a "right to self-defense" (that includes the possession and even use of firearms) in the Second Amendment, does that entail, for anyone other for a fanatic, that "a right to hunt and kill animals" is also a protected Second Amendment right? Would the state really be estopped from stating that killing animals is no longer a "reasonable use" of firearms? Isn't this just one more argument in favor of the Ninth Amendment, which so easily allows us to differentiate between self-defense and killing animals, instead of shoehorning everything one likes into (and excising everything one dislikes, such as bringing firearms into federal courthouses from) the Second Amendment?

[UPDATE: I have corrected a typo in the last paragraph. But let me borrow from a point made by University of Pennsylvania Professor of Law Paul Robinson in an op-ed in yesterday's New York Times, "Shoot to Stun," that suggests that a number of non-lethal weapons are available, including tasers, that are far more effective as means of self-defense than handguns. So does the Second Amendment protect a right to handguns even if there is extremely good evidence that the purpose of self-defense can be achieved by modes less likely to kill people (or to be the source of accidental deaths when found by children, etc.)? If guns can effectively be prohibited as means of hunting, because of animal rights concerns, then why couldn't they be prohibited as means of self-defense if other weapons are easily available and do the job (of self-defense) far more effectively.

Incidentally, should the Supreme Court take judicial notice that people who kill others, even in self-defense, sometimes feel remorse (as Kennedy argued was the case with women who had abortions), so this would count as an additional reason to require the substitution of non-lethal means of self-defense over lethal ones?]



Comments:

"Would the state really be estopped from stating that killing animals is no long as "reasonable use" of firearms?"

could you please revise this into coherence?
 

This comment has been removed by the author.
 

"If one finds a "right to self-defense" (that includes the possession and even use of firearms), in the Second Amendment"

Actually, I find that right to self defense in the Ninth amendment. It's a right so fundamental the founders never even considered it might be denied, or else they'd have explicitly guaranteed it, too, and that's what the Ninth is for, after all: The rights so obvious nobody thought to enumerate them.

Because there's a right to self defense, self defense is one of the legitimate purposes for which an arm may be kept or born.

I doubt the founders believed in a right to hunt, and certainly not without considerable qualification. Hunting is, thus, only a legitimate purpose for keeping and bearing where it is legally permitted.
 

The Second Amendment protects the right to kill animals to the same extent that it protects the right to kill humans.
 

Likewise with respect to the First Amendment. If one wishes to kill either an animal or a human in order to express oneself, and one challenges a statute against killing animals or humans as chilling one's rights under the First Amendment, then the court would apply the Supreme Court's O'Brien test for "incidental restrictions" on speech and uphold the statute.
 

Maybe I'm totally mistaken, but I thought Heller was really a case about whether the Constitution contains a right to keep arms, not whether it contains a right to use them against intruders or what have you. Stevens, I think, differs from Scalia in that he would restrict the right to a certain class, namely, state militia members. So I don't see the force of your objection to the commenters on Balkin's post, since they're not arguing that the Second Amendment protects all common uses of arms - rather, their claim is that the right to possess arms is available to everyone (with room for reasonable regulation regarding felons and the like), militia member or not.
 

Whether it includes a right to kill animals, the right to keep and bear Arms certainly includes a right to shoot ridiculous law professors who won't give up with their silly, stupid arguments about why the Constitution should mandate European-style gun control.
 

"the right to keep and bear Arms certainly includes a right to shoot ridiculous law professors"

Wow. Out of bounds.
 

Mortimer Brezny is not only nasty, he also can't read. There is not a word in anything I've written that suggests that the Constitutioin "mandates" gun control. Moreover, he might recall that I actually supported the majority result, even though I think that Scalia's opinion is subject to lots of legitimate criticisms. But the point is whether the Constitution permits (not mandates) regulation of guns by the state. I assume that he agrees that the answer is yes--i.e., at least some regulation is perfectly permissible, as Scalia goes out of his way to concede. So the only question concerns the limits of legitimate regulation even under the Heller version of the Second Amendment.
 

it seems to me that hunting was always subject to restriction.

it seems to me that the strongest argument in favor of a well armed populace is revolution against our government.

those loony mid-west survival groups actually have a point somewhere buried in the paranoia.

but, who is paranoid now?
 

I do not own a firearm and have never been hunting. But my objection to the professor’s post is the suggestion that only a “fanatic” would support a right to use firearms for hunting purposes. I don’t think that is a crazy idea. After all, in the late 18th century, a great many people relied on hunting game, at least in part, to feed themselves and their families. The right to self-preservation is surely a right protected by the Ninth Amendment. I thus doubt it would have occurred to anyone in 1791 that hunting could be prohibited altogether. In the modern world, the self-preservation rationale obviously doesn't carry the same weight, but the practice of hunting is nevertheless a deeply ingrained part of the culture. It’s not my cup of tea, to be sure, but who am I to impose my sensibilities on everyone else. So, while everyone agrees that even legitimate uses of firearms are subject to reasonable regulation, a complete prohibition on hunting strikes me as completely unjustified, particularly where it poses no unreasonable risk of harm to other human beings, animal rights fanatics to the contrary notwithstanding.
 

a complete prohibition on hunting strikes me as completely unjustified, particularly where it poses no unreasonable risk of harm to other human beings, animal rights fanatics to the contrary notwithstanding.

Sam, you obviously are not making a constitutional argument, but are merely revealing your lack of regard for animals -- and revealing it ways that you may not even recognize. You think that the whether hunting should be banned depends upon whether it imposes an unreasonable risk of harm to humans; its effect on animals is not even a consideration to you. In addition, you apply the epithet "fanatics" to anyone who disagrees with you, and, with the phrase "to the contrary notwithstanding," you imply that their views are not worth considering. I suggest that you open your mind and read Peter Singer's Animal Liberation.
 

Three questions come to mind as we ponder the historical basis for the Second Amendment's protection of an individual's right to own a gun:

At the time of the ratification of the amendment:

1) Was a white woman allowed to legally own a gun in her own name?

2) Were blacks---men and women---allowed to own guns in their own individual names to "defend themselves" and to hunt, etc. ?

3) Were Native Americans allowed to own and use guns to defend themselves and their lands and to hunt ?

dah
 

In response to the point borrowed from Professor Robinson, it seems to me that the "self-defense" argument by gun rights activists has always been a bit of a red herring. There are very few situations where having a gun is a safe way of protecting oneself. Envision, for instance, a mugging--attacking approaches from behind, gun already drawn. Drawing your gun while avoiding his fire simply won't be feasible, unless perhaps if you are Neo, liberated from the Matrix.

And therein lies at least some of the rub. Gun owners like to think of themselves as super-soldiers, who would be able to pull off Billy the Kid stunts. Moreover, as Professor Robinson's point illustrates, in any case where the attacker would not have an inherent and insurmountable advantage (i.e., doesn't have a gun), shooting him would be morally and legally impermissible.

So I conclude two things. First, gun rights activists are starry-eyed about their gunplay.

Second, I think that for many it is simply a raw desire to have the law in their own hands. That is, the use of the gun in "self-defense" is actually the use of a gun for punishment, or revenge--getting the attacker back for the indignity of it.
 

I'm not necessarily advocating this, as I haven't yet thought through it, but I think there's something interesting to explore in the idea that hunting is the way that most 18th century Americans learned to shoot well enough to even die heroically at the hands of the British during the war of independence. To the extent someone believes in the insurrection justification for the second amendment, I would think that protecting the right of people to learn how to do it might be part of that general right.
 

There is probably a lot to Sam's point that hunting was considered a "fundamental right" in the 18th century because it was indeed a way of feeding oneself and one's family. But he also notes, I'm sue altogether correctly, that that simply is not the case today for more than a very tiny group of people. So is this an example of how changes in social organization lead to the disappearance of what was formerly viewed as a "fundamental right" precisely because other, more efficacious, ways have been developed to provide food for subsistence. And if that's true with regard to "the fundamental right to hunt in order to provide food for one's table," why couldn't it also happen for "the fundamental right to possess arms for self-defense in the home." (These changes might not affect the "fundamental right to possess arms to overthrow a tyrannical government.")
 

Raffi is surely right "that protecting the right of people to learn how to [use firearms to defend themselves" is likely "part of [the] general right" to self-defense. But it's not clear why this would require that people have the right to learn-how-to-defend-themselves-by-hunting. I'd have thought that, even if--as a matter of fact--many people in the eighteenth century learned how to shoot well by hunting, this wouldn't entail the conclusion that hunting was essential to learning how to defend oneself then. Even if it was, I'm confident it isn't now.
 

Sandy:

[L]et me borrow from a point made by University of Pennsylvania Professor of Law Paul Robinson in an op-ed in yesterday's New York Times, "Shoot to Stun," that suggests that a number of non-lethal weapons are available, including tasers, that are far more effective as means of self-defense than handguns.

One can only charitably attribute this absurd suggestion to a lack of experience handling tasers and firearms

First, tasers are one shot devices with extremely limited range that often fail because one or both of the two required elements do not stick to baggy clothing. A taser does not even measure up to a Constitution era flintlock pistol as a self defense weapon nevertheless being superior to a modern pistol.

Second, criminals do not arm themselves with tasers. Rather, they are likely to be carrying a revolver or semi automatic pistol. Ask any police officer, criminal or almost any sane person with a passing knowledge of firearms gained from television whether they would want to come to a gun fight with a taser.

Finally, as a single shot weapon, you are out of luck if you confront two or more assailants with a taser.

So does the Second Amendment protect a right to handguns even if there is extremely good evidence that the purpose of self-defense can be achieved by modes less likely to kill people...?

I dunno. Do you think the government can abridge the First Amendment right to speak out against government policies on the grounds that hiring a lobbyist is a far more effective means of influencing government policy?

Is there any precedent for abridging a right in the Bill of Rights because the right is not the most efficient means of achieving a purpose?
 

Henry,

You are partly right. I do agree that animals, as senient beings, are certainly objects of legitimate moral concern. Some animals (primates, whales, etc) may even be entitled to more consideration than they are commonly afforded. But I do not believe that the typical objects of hunting -- deer, birds of various sorts, etc -- have rights, because they are not moral agents. Some very respectable thinkers(among whom I would include Prof Singer) disagree, but that doesn't remove me from the mainstream, much less prove that I'm wrong.

Moreover, as a legal matter, is there really any serious dispute about whether constitutional rights are reserved for human beings? We may have all sorts of legal (and moral) duties to the environment, to obey the Endangered Species Act, and so on, but it doesn't follow that the objects of our concern therefore have rights. So, whatever the scope of the Second Amendment turns out to be, it only extends to human beings. In that regard, I simply don't see the justification for prohibiting an activity, even a recreational activity, that doesn't risk any appreciable harm to anyone.
 

Sam,

As to your first paragraph, whether only moral agents can have rights is an old philosophical question; suffice it to say that human infants are not moral agents yet they have rights. In any case, utilitarians such as Singer, believe that all sentient beings are entitled to consideration of their interests, and that has nothing to do with rights.

As for your second paragraph, I agree that Second Amendment rights apply only to humans. But it doesn't follow from that that Second Amendment rights cannot be limited to protect non-humans. Second Amendment rights can be limited to protect anything, including non-living things. Congress could enact a law providing that you cannot shoot a rock, if it had a justification that was adequate to meet whatever test the Court applies to limitations on the Second Amendment.
 

There is probably a lot to Sam's point that hunting was considered a "fundamental right" in the 18th century because it was indeed a way of feeding oneself and one's family.

But this is where historicist interpretative models get interesting. After all, the mother country's attitude to hunting had changed quite drastically in the preceding half-century, with the enclosure of common land and the emergence of sport hunting for the upper classes.

For Blackstone, the right to hunt is a 'natural right' (in the Lockean sense) that has been invested in the sovereign power and made subject to regulation by the sovereign.

In short, it's feudal, and accompanied by a common law right to hunt on one's own property, as well as the general customary right to control pests and glean from harvests.

The intriguing question -- and one I'm certainly not qualified to address -- is the extent to which that legal model was adapted to colonial rule, with its very different landscape, and subsequently to the post-colonial model of sovereignty. That said, I'd lean towards it being vested in the state power.
 

I would advise everyone to track down a fascinating article in the New Yorker a couple of weeks ago, on attempts by the LAPD to develop non-lethal technology. An abstract is available at http://www.newyorker.com/reporting/
2008/06/02/080602fa_fact_wilkinson, (obviously, you should eliminate the space between / and "2008"). It's not at all clear, according to the article that experienced police would necessarily prefer lethal weapons to effective non-lethal ones.
 

So the only question concerns the limits of legitimate regulation even under the Heller version of the Second Amendment.

Sandy,

I was joking. I am aware of your actual position. I can read, too!

I agree with your quote above. I disagree, however, that "Yes, handguns!" = "No handguns if tasers."
 

I am delighted that Mortimer and I are back on the same page, so to speak. One of the things I've learned in two decades of involvement in debates about guns is that it is impossible, out of face-to-face situations, to know when people are joking or being perfectly serious! I'm sorry I misread the posting.
 

Henry,

I think you will agree that its hard to have a philosophical debate in blog comments. As you point out, the foundation of rights is a contentious issue, and I never supposed that I have an unassailable position, although I do think its possible to articulate a principled distinction between a deer and a human infant. But I won’t even try to make that argument here. You are also correct that utilitarians like Singer reject the whole rights-based approach, but there are other philosophers (e.g. Tom Regan, if I’m not mistaken) who do adopt that approach to protecting the interests of animals. In any event, given the context, I was assuming that a rights-based approach was an appropriate mode of argument.

Your second paragraph merely restates the question at issue. Of course Congress can pass stupid laws, like prohibiting the shooting of rocks. The point of the discussion is to articulate a principled way of defining the scope of Second Amendment rights. My suggestion, following Randy Barnett on this point, is that Second Amendment rights aren’t limited by any particular purpose, provide the person is engaging in an otherwise lawful activity that doesn’t impose an unreasonable risk of harm to others. That might be wrong, to be sure, but at least its an attempt to answer the question.

I'll let you have the last word, if you want it.
 

Sam,

I hadn't realized that the Second Amendment protection arose because hunting is a lawful activity. If that's the case, then I propose that Congress make it a crime to intentionally kill or injure any animal, by any means (where doing so affects interstate commerce or is on federal land).
 

At the moment, non-lethal defense isn't even close to being more effective than firearms. Note that the police still rely on firearms, for instance.

If the day ever comes when non-lethal weapons are effective enough that the police give up their guns, only then will there be cause to require that ordinary citizens restrict themselves to non-lethal defense.

It should also be noted that many jurisdictions currently allow people to carry guns for protection but bar them from carrying non-lethal weapons like stun guns.


Even if (when?) the day comes that there is a truly effective non-lethal defense against other people though, that doesn't mean that same defense would prove effective against a grizzly bear or other dangerous animal. Chances are good that people would still need to use firearms to defend against dangerous animals.

And until the government can guarantee that everyone will always have enough to eat, there will surely be a right to hunt animals for food.
 

And until the government can guarantee that everyone will always have enough to eat, there will surely be a right to hunt animals for food.

But who should have that right -- those who need to hunt so as not to go hungry, or those who hunt for "sport" and then eat the animal they kill?
 

This underlines the value of understanding that all use of guns aren't 2A concerns per se, nor that this ends the debate.

Too often we hear cites to the 2A by those most concerned with things like collecing or hunting, not militia service (and it brings with it obligations too) per se.

The amendment is not really directly about self defense either. Scalia noted it was enacted for another reason, even if it protects that too.

It surely isn't about hunting. Now, the Framers were probably wary about restrictive English game laws. There also was a necessity and probably pleasure reason for the right too (see also, the right to fish).

But, the 9A is probably the best place to look for that, and maybe equal protection in some fashion. And, changing needs, environmental concerns and so forth can legitimize many restrictions.

The right to keep and bear arms for militia service, which includes a self defense component under Heller, is different though. The 2A expressly says "shall not be infringed" for that specific purpose.

If its premises are no longer valid, we can't just ignore it. We are after all stuck various dubious measures, see Levinson, that we can't just ignore.

If we are going to balance various means (can we do this for other freedoms?), it still is a dubious conclusion to suggest a handgun should not be protected. Especially, per Heller, when common consensus still holds it generally as beneficial.

BTW, a good comparison as to animal protection would be the Santeria case, esp. Blackmun's opinion that suggested a neutral animal protection measure would be legitimate, even if it might affect free exercise.
 

in alaska the people have a right to subsistence which concerns hunting and taking from the fisheries. i am not sure if it applies to everyone.
 

The only founding document -- of the level of law and legal authority -- which expressly stipulated a "right" to "fish and fowl" (the actual term) -- or which I'm aware is the VT constitution. And in that it is also expressly limited to "on public lands".

Otherwise, the phrase "the right of the people to keep and bear arms" isn't vague in its meaning unless one rips it out of its standard context: the militia clauses of the original thirteen state constitutions, from four of which was formulated the Second Amendment.

One of those four was VT's constitution, in which both "the right of the people to keep and ber arms" and the "right" to "fish and fowl" are stipulated -- but in entirely separate clauses. "The right fof the people [etc.]" is contained in, as it is in all other instances, the Militia Clause.

Thus the Founders recognized the difference between the plural "people" and the private individual right to own guns.

It is only by ignorance or ignoring of the actual legal history, and the debates of that which became the Second, and a concerted effort to eliminate the line between public-institution militia, on one hand, and private individual on the other, that one can arrive at the falsification of the legal history and law that is Heller.

Shall we yet again "ebate" the "merits" of Bush -- even though it has none -- or shall we go to the Constitution, where it is stipulated that such election disputes be resolved by CONGRESS? Well, presumably law professors must theorize and speculate in order to retain tenure -- and the actual law, beginning with the Constitution, be damned. It's more fun to "debate" crap than it is to assert the actual law against the crap. Thus Yoo can be defended on the grounds of "academic freedom" even as those engaging in that bogus defense well know that his torture memoes were not an academic exercise carried out in the academy.

When a freedom is more important than truth, is that freedom other than a lie?
 

"I doubt the founders believed in a right to hunt, . . . ."

Your doubt is incorrect.

". . . and certainly not without considerable qualification. Hunting is, thus, only a legitimate purpose for keeping and bearing where it is legally permitted.

"# posted by Brett"

The VT constitution expressly stipulates a right to "fish and fowl" -- and is, at the same time, limited to "public lands".

However, that is a clause entirely separate from the Militia Clause, which latter incorporates the phrase, "the right of the people to keep and bear arms".

Both are separate because different, which is further indicated by the use of the PLURAL "people". (It is "We the people," not "I the people" or "We the individual.")
 

"Maybe I'm totally mistaken, but I thought Heller was really a case about whether the Constitution contains a right to keep arms, not whether it contains a right to use them against intruders or what have you. Stevens, I think, differs from Scalia in that he would restrict the right to a certain class, namely, state militia members."

And in so doing, Stevens is basing his view on the DEBATES of that which became the Second BY THOSE WHO WROTE IT. Militia is alternative to standing army -- not "individual" as alternative to standing army.

Nor was the militia a "rag-tag band of volunteers" desptie the false myth perpetuated by the pseudo-patriotic gun-nuts and the NRA. For centuries before the Constitution and Bill of Rights the militia had been consistently governed UNDER LAW, a major concern being stability in laws and gov't -- i.e., prevention of military coups. That same reality continued, unbroken, to, through, and after, "revolution". The members of the militia didn't just "show up" out of patriotism; they were ENLISTED, and if they DIDN'T show up as required, they were penalized for not doing so.

What so amazes is the ignorance of those basic facts on the part of those who would discuss "militia" and the Second Amendment, and whether the Second -- an absurdity on its face -- "protects" an "individual, PRIVATE" right of ANY kind.

That same concern was in the forefront during the debates of the Second Amendment: militia as alternative to standing army. It wasn't "individual" as alternative to standing army, any more than "people" is "individual," or "militia" is "individual".

The ONLY POSITED "individual right" debated concerning the Second by those who WROTE it was that of CONSCIOUS OBJECTION -- exemption from COMPELLED militia duty. That being voted down, the Second has nothing whatever to do with "individual" anything. And never has had anything whatever to do with "individual".

And how much difference has Heller made -- other than being yet another right-wing subversion of the Constitution? None: gun control wasn't unconstitutional before, and it isn't unconstitutional now. Rather, there's a very good chance that gun-nuts will not have to contend with only one set of gun-control regulation, but now also a second applying specifically to the Second Amendment.

But to hell with all that; let's instead pretend along with the wingnuts and "Libertarians" that the Constitution established an anything-goes anarchy in which political whim is freely substituted for rule of law.
 

"The Second Amendment protects the right to kill animals to the same extent that it protects the right to kill humans.

"# posted by Henry"

It says that? By eans of well regulated militia?

Have you read the debates by those who WROTE the Second Amendment to actually learn what THEY intended with it?
 

"Whether it includes a right to kill animals, the right to keep and bear Arms certainly includes a right to shoot ridiculous law professors who won't give up with their silly, stupid arguments about why the Constitution should mandate European-style gun control.

"# posted by Mortimer Brezny"

Unfortunately, you don't know what you're talking about.

The Founders/Framers engaged in gun control, before and after ratification of Constitution and Bill of Rights. That included gun prohibitions and confiscations.

As examples: there was no counter-"revolution" because the Constitnental Congress suggested, and the states enacted, laws disarming the Tories, and prohibiting their possession of weapons.

Other laws disarmed those who refused to SIGN an oath of loyalty to "the cause". Others took the arms of thoese not being used to fight the "revolution" and gave them to those who would.

There is no way -- if one actually knows the actual legal history -- that one could conclude that the Founders/Framers viewed gun control -- or confiscation or prohibition -- as unconstitutional.

"Mandating" gun control is not "European-style" or any other sort of "style". It is about PUBLIC SAFETY, and stability in laws and gov't.
 

"Mortimer Brezny is not only nasty, he also can't read. There is not a word in anything I've written that suggests that the Constitutioin "mandates" gun control. Moreover, he might recall that I actually supported the majority result, even though I think that Scalia's opinion is subject to lots of legitimate criticisms. But the point is whether the Constitution permits (not mandates) regulation of guns by the state. I assume that he agrees that the answer is yes--i.e., at least some regulation is perfectly permissible, as Scalia goes out of his way to concede. So the only question concerns the limits of legitimate regulation even under the Heller version of the Second Amendment.

"# posted by Sandy Levinson"

I've made this point before, but I'll make it again:

1. Ratification of the Bill of Rights was completed on December 15, 1791.

2. Subsequently, on May 8, 1792, Congress enacted the "Militia Act".

What did the "Militia Act" do? It implemented US Con. Art. 1, s. 8, cl. 15 and 16 MANDATING that the militia be regulated by Congress.

And that the "Militia Act" was enacted SUBSEQUENT to the ratification of the Second Amendment makes clear that the Second is not a bar to regulation of that which is within its scope: the militia.

And that is ALL that is legitimately within the Second: the militia. The militia is a PUBLIC institution, whereas the private indivdiual is not, thus each is subject to a separate body of law.

Is the right to self-defense absolute? No. Is the right to own, or to defend oneself with, a gun absolute? No. Are any rights absolute? No.
 

"I'm not necessarily advocating this, as I haven't yet thought through it, but I think there's something interesting to explore in the idea that hunting is the way that most 18th century Americans learned to shoot well enough to even die heroically at the hands of the British during the war of independence. To the extent someone believes in the insurrection justification for the second amendment, I would think that protecting the right of people to learn how to do it might be part of that general right.

"# posted by Raffi"

You make obvious that the false wingnut propaganda has been effective. By contrasrt therewith:

US Con. Art. 1, s. 8. c. 15. [The Congress shall have Power] To provide for calling forth the Militia to execute [enforce] the Laws of the Union, [and] suppress Insurrections . . . ."

There is no "right of revolution," except to those who confuse non-law "Declaration" with Constitution.
 

"(These changes might not affect the "fundamental right to possess arms to overthrow a tyrannical government.")

"# posted by Sandy Levinson"

That "fundamental right . . . to overthrow a tyrannical government" does not exist (which was an argument made by the South vis-a-vis the Civil War) -- unless one simultaneously overthrows the Constitution while claiming one is instead defending it.
 

It's amazing how untethered wingnut fantasy has polluted this duscussion:

"Raffi is surely right "that protecting the right of people to learn how to [use firearms to defend themselves" is likely "part of [the] general right" to self-defense."

Except that that isn't how it worked IN REALITY. The Militia was UNDER THE LAW, and underwent TRAININGS. The members of the Militia were not "private citizens" who just showed up out of "patriotism"; they were ENLISTED, exactly as is done with regular military, and had NO CHOICE BUT to show up, else they be subject to a range of penalties stipulated IN LAW.

That reality is reflected in the first draft of that which became the Second Amendment:

"The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best defense of a free country: BUT NO PERSON RELIGIOUSLY SCRUPULOUS OF BEARING ARMS SHALL BE COMPELLED TO RENDER MILITARY SERVICE IN PERSON."*

*"people" is PLURAL, as in "We the people," which is not instead, "I the people" or "We the individual". "person" is individual.
 

"I simply don't see the justification for prohibiting an activity, even a recreational activity, that doesn't risk any appreciable harm to anyone.

"# posted by Sam"

Then you do agree that Dick Cheney should be prohibited hunting?
 

"It surely isn't about hunting. Now, the Framers were probably wary about restrictive English game laws. There also was a necessity and probably pleasure reason for the right too (see also, the right to fish)."

The VT constitution address/ed both -- "the right of the people to keep and bear arms" and the right to "fish and fowl". But it did/does so SEPARATELY. The first is militia -- people is plural, and that is a wholly seaprate clause, as is individual/private "fish and fowl" clause.
 

"Even if (when?) the day comes that there is a truly effective non-lethal defense against other people though, that doesn't mean that same defense would prove effective against a grizzly bear or other dangerous animal. Chances are good that people would still need to use firearms to defend against dangerous animals."

Yeah: I'm sure it happens all the time, day in and day out, that each of us is regularly confronted by a grizzly bear or other dangerous animal, thus justified in having assault weapons and lobbying for bazookas, tanks, and nukes.
 

"Mortimer Brezny is not only nasty, he also can't read. There is not a word in anything I've written that suggests that the Constitutioin "mandates" gun control."

And yet it in fact does do that:

"US Con. Art. I., s. 8, c. 16. [The Congress shall have Power] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

Congress' authority on the point -- and as reflected in the "Militia Act" of 1792 -- includes stipulation as to kinds of weapons authorized, and required -- and prohibited -- use by the militia.

No sane society neglects to regulate dangerous substances and objects, both for public safety, and preservation of laws and gov't. Anyone who believes otherwise is a loon.
 

JNag.. can we safely assume you don't agree with the outcome in heller... ?? :)
 

Self defense is not limited to using a gun or a rifle. One can use his fists, elbows, knees, feet (shod or not), voice, a lamp, a book, a pike, a knife, or other material things that may be available at the time the right of self defense is employed. How about spraying mace or some other chemical? The emphasis upon guns is too convenient a political argument invoking the Second Amendment. Some of these methods of defense are more deadly than others. Of course the person using force in self defense must prove the danger, etc, that justifies the use of such force. I don't think the Constitution addresses whether or not the use of such force was justified under the circumstances. With the advent of motion pictures followed by television, we have long been visually exposed to the use of guns in self defense. Perhaps that is why the use of guns in self defense is imbedded in the discussion of the Second Amendment. Maybe it goes back to childhood games of cowboys and indians. But "arms" in the Second Amendment is not limited to guns. Yet the emphasis in Heller and post-decision discussions is upon guns, versus other "arms." In due course can we expect the use of "arms" other than guns to come into play in self defense? For example, let's take a very wealthy person fearful of his life who hires people to protect him, as part of his self defense, both at home and away from home, and how they and he might be armed for his self defense. Might the "arms" utilized in this self defense go well beyond guns? If so, then shouldn't the same, funds permitting, be available to a not so wealthy person? And how far will the concept of self defense be stretched? Is all this really a matter of the Second Amendment or of the basic laws of the states and the federal government in the protection of the citizenry?
 

"At the moment, non-lethal defense isn't even close to being more effective than firearms. Note that the police still rely on firearms, for instance.

"ORally"

And how often, pray tell, have you needed to engage in self-defense in which having a gun was necessary?

And I mean IN ACTUALITY, not in your paranoid fantasies.

The police are not an issue, as they are allowed to have weapons which the general population is prohibited having.
 

"Jkat" --

"JNag.. can we safely assume you don't agree with the outcome in heller... ?? :)"

Most definately. :]
 

where would a laymans best track be in finding those original debates JNag ..et al ??
 

"Jkat" --

"where would a laymans best track be in finding those original debates JNag ..et al ??"

Check Amazon for these titles:

Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore: Johns Hopkins), Ed. by Veit, et al.

The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties (Madison, WI: Madison House), Ed. by Conley and Kaminski.

The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins (NY: Oxford U.), Ed. by Neil H. Cogan.
 

"Jkat" --

"where would a laymans best track be in finding those original debates JNag ..et al ??"

I also recommend reading this -- perhaps before the others -- as it begins with "Where the states' constitutions came from -- and in what order." --

The Birth of the Bill of Rights 1776-1791 (Numerous publishers -- in print), Robert Allen Rutland.

A tid-bit:

The first state to adopt a constitution was NH. The next state borrwed some from NH's constitution, and added a bit of its own stuff. The third state borrowed from those two constitutions . . . etc.

Thus one finds the Militia Clause is universal -- in every state constitution -- and in only a few states at variance by a few words -- local conditions, donchaknow.

Every state -- at the suggestion of the Continental Congress -- adopted a constitution in 1776-77, except MA-Bay, which adopted in 1780. MA-Bay's first effort failed -- in large part because it lacked a Bill of Rights, which was something of a fetish at the time. The person most credited with defeating it -- as author of "The Essex Result" -- was Theophilus Parsons. (He would later author the proposed amendments to the US Constitution which the MA-Bay Convention included with its Notice of Ratification of that Constitution.)

It was also defeated in part because framed by the legislature -- thus these questions:

"Couldn't, then, the legislature amend it at whim?"

"Couldn't, then, the legislature repeal it at whim?"

So was established, as alternative -- the legislature too must be UNDER the constitution -- the world's first constitutional convention. The second effort included a Bill of Rights, and was ratified by the people, and of course included requirement that amendment must also be not by the legislature but by the people.

One fascination with the evolution of Charters to constitutions is that it is both rather straight forward and simple, and yet complex in detail of relatively few broad themes. Another is how much was retained from early formulations of foundational documents.
 

John Adams is credited as the principal author of the MA Constitution, which some say was influential with respect to the US Constitution. The latter seems to read much better and more logically than the former, which seems convoluted in places and a hard read. I have not compared the constitutions of other states enacted before the US Constitution for readability. Surely there was a benefit in having other formats to consider when the US Constitution was being drafted. Are any state constitutions, whether pre- or post-US Constitution, as readable as the US Constitution? Back in 1787 perhaps the present day adage that a camel is a horse designed by committee was not in vogue. Could it be that the framers were the creme de la crop who could avoid provincialism? So my question is, is there a scholarly work that addresses, compares, the readability of the US Constitution and the states' constitutions? With the benefit of hindsight, how do the more recently adopted state constitutions compare with the readability of the US Constitution? Did any of these newer state constitutions tighten up what may have been perceived as ambiguities or weaknesses in the language of the US Constitution?
 

With the benefit of hindsight, how do the more recently adopted state constitutions compare with the readability of the US Constitution? Did any of these newer state constitutions tighten up what may have been perceived as ambiguities or weaknesses in the language of the US Constitution?

Certainly not the CA Constitution. It's roughly 130 pages long. Reading ERISA is more fun.
 

"Shag from Brookline" --

"John Adams is credited as the principal author of the MA Constitution, which some say was influential with respect to the US Constitution."

Yes. Assigned to a subcommittee of three -- James Bowdoin, John Adamas, and Sam Adams. From the history, John Adams wrote all of it -- except the section establishing a state religion, which was written by Sam. Seems Sam wasn't actually about "revolution," but rather about "re-establishing" "Puritan virtue" -- which from my readings of the history hadn't existed in the first place, unless they had a radically different meaning of the term -- and never missed an aopportunity to foment, lie, cheat, and kill toward that end.

"The latter seems to read much better and more logically than the former, which seems convoluted in places and a hard read."

The language of the MA is noticeably different from the other state constitutions which preexisted it. Perhaps it was that Harvard thing, as both John and Sam (Bowdoin too, probably) were educated there.

"I have not compared the constitutions of other states enacted before the US Constitution for readability."

They're all relatively easy to read; and quite alike in form, order, and phrasing -- the revelation as to why being Rutland's Birth of the Bill of Rights.

"Surely there was a benefit in having other formats to consider when the US Constitution was being drafted."

The Second -- "Right to Bear Arms" was drawn from:

PA Dec. of Rights, Art. XIII.
NC Dec. of Rights, Art. XVII.
VT Dec. of Rights, Art. XV.
MA Dec. of Rights, Art. XVII.
(Conley and Kaminski, xviii; same info. in Veit, et al.)

The sources for such as the First are many more than that.

"Are any state constitutions, whether pre- or post-US Constitution, as readable as the US Constitution?"

My favorite current, as a pleasure to read, is TN's. All the other pre- -- excepting the MA, as you note -- are in most/all particulars essentially the same.

"Back in 1787 perhaps the present day adage that a camel is a horse designed by committee was not in vogue. Could it be that the framers were the creme de la crop who could avoid provincialism?"

I think a few bright lights were able to persuade the others to transcend provincialism, though that didn't occur with such as slavery.

"So my question is, is there a scholarly work that addresses, compares, the readability of the US Constitution and the states' constitutions?"

Not to my knowledge (I'd be surprised if there weren't); then again, I've not thought of seeking such a comparison. MA's is somewhat convoluted compared with all the other state constitutions, all of which read pretty much the same (whole clauses were borrowed intact, with no or infinitesimal change/s).

"With the benefit of hindsight, how do the more recently adopted state constitutions compare with the readability of the US Constitution?"

Though it can be argued, the "first" CT constitution was framed-ratified in 1956 -- until which year they continued with their original Charter, with a few changes made to conform it to the norms/Federal requirement. That in itself is indication of how little actually changed in the form/s of gov't from British to American/US. The RI constitution isn't all that old either.

(The bicameral legislature came into being in 17th century MA, as result of a legal case over possession of a cow.)

"Did any of these newer state constitutions tighten up what may have been perceived as ambiguities or weaknesses in the language of the US Constitution?"

I think most -- speaking only of the Original Thirteen -- retain most of the original language, except where there were conventions and ratifications of later reformulations. There was an arrangement of the MA constitution done, as I recall during the 1920s, and there was litigation over whether the reorganized was law or not. Nope.

Some of the very first amendments to state constitutions were to the oath of office, to provide an alternative to swearing to the belief that the Old and New Testaments were divinely inspired.

GA's first constitution barred active clergy holding office, and protected religious speech -- so long as not against the state/seditious. Those sorts of provisions (an equivalent was in SC's constitution) were amended after ratification of the US Constitution.

VT's was amended when it was admitted to the Union to change "President" to "Governor".

(Some of the most interesting -- and entangled -- legal/history concerns such as MA-Bay, ME, NH, VT, and NY -- to the north. And CT and RI to the south. Conflicting land grants in ME caused problems; ME was part of MA until 1820; MA-Bay administered/governed NH for a long time; VT was claimed by both NH and NY.)

The early laws of CT -- the several colonies in CT which would become towns/cities in the state -- were borrowed from MA-Bay. (They were also founded by either banishees or "adventurers" from MA-Bay.)

All in all, one finds a universality in the state laws and constitutions because so much migrated or was borrowed back and forth.

Most difficult as concerns state constitutions is finding debates -- legislative or convention (some first constitutions were framed by legislatures, and adopted without a ratification process) -- either because records weren't kept, or have gone missing.

It seems the most complete record of any state's laws MA-Bay, in major part because of a preservationist/antiquarian movement (not limited to MA) in the 19th century, much of that mandated by statute.

As result we have the "Body of Liberties" of 1641 (Shurtleff's Records preserve most/all of the prior law -- 1628/9-40, statutory and case -- cases on adultery are interesting; the real hair-fainter is the sentence in a child molestation case . . . in which it appears the victim/s were children of a Magistrate), said to be the first "constitution" on this continent; the codification of 1648 (said to be the first codification on this continent, but I find an earlier from New-Plimoth -- Brigham); the codification of 1660, with Supplements to 1672; and the codification of 1672, with Supplements to 1686.

It was circa 1686 that MA-Bay's Charter was revoked, and from then to 1691ish (and new Charter), during which interim Andros was overthrown, there was essentially no gov't in MA-Bay. Created havoc in real estate: it was uncertain whether lands granted were actually owned by those to whom granted.

Some of those are available online; 1641 is important (it includes Leviticus), but for the pleasure of excellent scholarship must-sees are William Henry Whitmore's codifications -- the 1660 and 1672 codifications and Supplements, and his Bibliographical Sketch of the Laws of the Massachusetts Colony; in that he also discusses the 1648 codification -- presumed permanently lost -- as being of "1649".

John D. Cushing also did a three-volume Laws and Liberties of Massachusetts 1641-1691 (I'm looking for copy of Vol. I), which includes all Whitmore (Whitmore died before the sole copy of the 1648 codification was found, that first published by Harvard, in 1929, with Max Farrand introduction). And the series "The Laws of the Original Thirteen States," each a facsimile of the first volume/s of laws from the date of the state's constitution to whichever year the codification ended. And a series of colonial/pre-statehood for each of the "Original Thirteen". And A Bibliography of the Laws and Resolves of the Massachusetts Bay 1642-1780. (The latter is useful for the "revolutionary" period, which statutes can be readily found at such as the MA state house library.)

That doesn't mention the multi-volume Laws of the Province of MA-Bay, from 1691 at least into the 1770s, begun in the late 19th century and "completed" in 1921.

The Brigham and Whitmore are available in facsimile reprints. I got Brigham from Amazon (for less than its current price), and by scorched-earth-thorough looking the two Whitmore codifications from Hein. His Bibliography, from Law Exchange, was reprinted in 2004, and is available either on amazon or directly.

If anyone is interested, don't hestiate on Brigham and Whitmore. Both were lawyers (Brigham's was first published in 1836), and Whitmore worked for the City of Boston essentially as archivist and antiquarian (his published in 1889-90). Whitmore includes 1641; and the 1648 codification can be readily found in various editions, of which I have two, Amazon having one publish circa 1998.
 

A big "Thanks!" to JNagarya for his detailed response. I'll do some follow up at Boston's Social Law Library and perhaps the Boston Athenaeum. Sharing, not squirreling, knowledge helps all of us to learn and in turn to help others; in a way, we are all teachers and students, for life.
 

"Shag from Brookline" --

"A big "Thanks!" to JNagarya for his detailed response. I'll do some follow up at Boston's Social Law Library and perhaps the Boston Athenaeum. Sharing, not squirreling, knowledge helps all of us to learn and in turn to help others; in a way, we are all teachers and students, for life."

It coulda been written neater.

I discovered the Brigham and Whitmore at the old 1st Cir. Appellate Ct. library -- all first editions -- while learning to do legal research. Took a while to make head or tail of them, when I could make time to make the effort.

Also with those three volumes was a fourth -- Ancient Laws and Charters, published in 1814, one of the editors of which was Joseph Story. Whitmore does a detailed critique of it.

Also of interest: I spoke with the author (Atty. Muldoon) of a book about MA law, each area of law given a chapter, and each chapter being a history of the law in its area. I called him about it because it was printed by some tiny publisher in NH -- to ask him, that is, about why no major law-text publisher took it.

He explained that when he graduated law school in the '50s, he had an idea of "where the law came from". I only stumbled upon those volumes by happenstance, but I can't help agreeing with him: it is essential to have a sense of the continuity of the law -- it didn't just come into being yesterday.

I read the Brigham first (it being the oldest as to beginnings) as one would read an ordinary book -- a novel, say. It began with a little spark in the wilderness that flickered, and almost went out. Thanks to Injuns, it didn't, and the colony slowly grew; and with that one saw the evolution of a legal system from its beginnings. And as the colony grew, the law became increasingly elaborated.

One doesn't read a few hundred years of law and come away with the idea that anarchy/"Libertarianism" will work.

It was the most amazing thing to see the rudimentary establishment of a social order, and then the evolution from that of the legal system.

One of the earliest prohibitions which struck me: the smoking of tobacco within 30 yards of barns and haystacks. And as one read one saw the routine and regular regulation of alcohol and shot & powder -- no big deal.

What also amazed was how familiar it all was: there's nothing new under the sun.
 

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