Balkinization  

Wednesday, July 02, 2008

Is Heller an Original Meaning Decision?

JB

Many commentators, including my good friends Randy Barnett and Larry Solum, have praised Justice Scalia’s opinion in Heller v. District of Columbia as a sparkling example of original meaning originalism. After having read the opinion closely a number of times, I am not so sure.

I do not doubt that Scalia uses original meaning methodology at the beginning of the opinion. Rather, the crucial move that decides the case– and that separates the majority from the dissent– is not an argument from original meaning. Let me explain.

The first part of Scalia’s opinion does make a very straightforward inquiry into original meaning. It asks what the words of the Second Amendment meant at the time of enactment. The “meaning” it looks for is what Larry Solum calls “semantic content,” the concepts that the clause uses and the ways that they are put together to form sentence meaning.

So Scalia concludes, after some discussion, that the semantic content of “keep and bear arms” means roughly the same what it means today, something along the lines of “to possess and carry weapons in case of confrontation.” Actually, the extra words “in case of confrontation” are not necessary to the original meaning. They are an implication Scalia adds, in large part, I think, because he wants to prepare the reader for his argument about self-defense.

Scalia points out, and I think correctly, that the original meaning of the phrase “keep and bear arms” isn’t limited to military uses. It could refer to non-military uses, like hunting or self-defense. Such a construction of its scope is consistent with the original meaning of the clause. It is not a generally recognized term of art with a meaning that must be more limited.

So far, so good. The next step is to note that the Amendment states a principle, not a rule or a standard. The principle is that “the right to keep and bear arms shall not be infringed.” What exactly is this principle, and what is its proper scope? The principle in the Second amendment, like many principles in the Constitution, is vague. For example, the First Amendment says that “Congress shall make no law . . . abridging the freedom of speech.” The key word in this sentence is not “no” but “freedom.” Whatever the freedom of speech is, Congress may make no law abridging it. But what precisely is the freedom of speech? Does it include all acts of speaking? Is reasonable regulation of speech an abridgement of the freedom or is it merely a ban on license or abuse.” Moreover, as Justice Scalia himself has pointed out, the word “speech” in the First Amendment seems to be a synecdoche, that is it is a part that stands for a larger class of related things, like writing, printing, painting, sculpture, music, telecommunications, and so on. So even once we know the original meaning, we must fill in vague principles with constitutional constructions.

Back to the Second Amendment. We know there is a principle: don’t abridge the right of the people to keep and bear arms. But we don’t know what the content of that principle (or set of principles) is; and the original meaning of the sentence, the clause meaning, does not tell us. It could point to any number of different principles.

Here’s where the opinion gets tricky. What most people would do, and what both Scalia and Stevens do, is to look back into history to see what principles the framers and ratifiers sought to put into effect through their choice of words. That is, they are looking for the “original principle” or “original purpose” of the clause, and it’s important to understand that this inquiry involves a different aspect of “meaning” than asking about the original semantic content of the clause. The argument is that if a principle was an original purpose, then we should interpret it according to that purpose today.

It turns out that there is an original principle that everyone agrees the framers and ratifiers had: it was to prevent the federal government from disarming citizen militias organized by the states. This would deter federal tyranny, insurrection, and foreign invasion. Call this the principle of preservation of state militias. There is a second principle that almost everyone agrees was an original purpose: to prevent the federal government from disarming citizen militias that were not organized by states, but that might arise spontaneously to fight a tyrannical federal government, tyrannical state government, anti-republican insurrection, or foreign invasion. Call this the principle of republican insurrection. Both of these principles are civic republican ideas: they assume that citizens formed militias as a public duty they owed to each other and to the republic. Citizens would band together, either organized by states, or spontaneously, to protect each other and the republic from invaders or tyrants. It was not a purely individualist or liberal right to be free from state interference as we imagine rights today. Rather, it was a right that arose from a common duty of political obligation.

The history strongly supports that among the original purposes of the text was constitutionalizing these two principles: the principle of preservation of state militias and the principle of republican insurrection. We can see this from the preamble to the Amendment, which speaks of militias, from the history of the English Bill of Rights, in which Protestants wanted the right to defend themselves against the Stuart Kings (this is an example of the insurrectionist theory), and also from the drafting history of the Second Amendment, which demonstrates civic republican ideas about the obligation to serve in the militia (that is why there was discussion of an exemption for religious dissenters). Justice Scalia rejects the drafting history as evidence of original meaning, but it is quite relevant to discovering original purpose, and that is what both he and Justice Stevens are interested in at this point in the discussion.

There is also a third principle that the text might have been created to protect: It might have been designed to constitutionalize the common law right of self-defense using generally available weapons. And now comes the key issue in the case.

The problem is that the historical evidence that the framers and ratifiers sought to constitutionalize this common law right is mixed. It is far less strong than the evidence for the first two purposes. There is evidence that goes both ways in the history, and some pieces of evidence can point both ways depending on how you read them and the context in which you consider them. You can see some of this evidence by comparing the historical versions offered by the majority and the dissent, each of which articulates the history in ways most favorable to itself and each of which pretends that there is no other possible conclusion to draw from the history. That by itself should lead you to be dubious of the confident claims that both sides make.

Nevertheless, we can say one thing: The original meaning of the text is consistent with all three purposes, including the right of self-defense. So if we wanted to construe the Second Amendment to constitutionalize the common law right of self defense, we could. There is nothing in the original meaning of the text that stops us. That is true even though the preamble speaks of militias, because, as Scalia correctly points out, this does not necessarily limit the scope of the clause. It might be one reason not to read the clause to constitutionalize the common law right of self defense, but it is not a conclusive reason.

However, as one moves into the 19th century, people’s attitudes change. More and more people think that the common law right of keeping and bearing arms in self defense is a fundamental constitutional right. Some of them think it is part of the Second Amendment, others don’t identify it with any particular part of the Constitution but regard it as a basic right of citizenship. Either way, by late 1840s there is evidence that lots of people think that this is a basic right. In particular, the framers of the Fourteenth Amendment think it is a privilege or immunity of citizenship, and there is strong evidence that they believe that this right is one of the privileges or immunities of citizens of the United States that the States must protect under the Fourteenth Amendment.

So even if the evidence is unclear that self-defense was an original purpose in 1791, the evidence is strong that it was a purpose of the framers of the Fourteenth Amendment when they wrote the Privileges or Immunities Clause, which was designed to incorporate the individual or personal rights in the Bill of Rights, including the individual rights protected by the Second Amendment. And because people believed this in 1868, that is a reason to think that this interpretation is a permissible construction of the Second Amendment as it applies to the federal government. Once again, the text can bear it, despite the preamble.

And here is the point: The argument that the Second Amendment constitutionalized the right of self-defense does not follow directly from the Amendment’s original meaning, as Scalia claims it does. Just because a reading is consistent with original meaning, that does not mean that it is required by original meaning.

Rather, it is a permissible construction or gloss on the Amendment. It is a gloss that develops over time, and becomes generally and widely accepted by Reconstruction, and continues throughout the 19th century, as Scalia’s opinion suggests. However, because Scalia wants to insist that this was always an original purpose of the Amendment, he reads this 19th century history as proof of the original purposes of 1791. This is anachronistic. And, as noted above, he confuses original meaning – i.e., the content of the words used – with original purpose and original expectations.

Scalia seems to believe (incorrectly) that the purposes attributed to a clause at the time of the founding are a part of its original meaning. Having made that mistake, he also seems to believe that if a purpose attributed to an amendment is not among its original purposes, it cannot be a legitimate purpose because it is not part of the original meaning. This means that the 19th century evidence is only relevant to him if it proves what people believed to be the purposes of the Amendment in 1791. If, it turns out that a particular purpose (self-defense) developed over time as a result of gradual evolution of American values, it is not an original purpose. Hence it is illegitimate to attribute it to the text.

I disagree with this entire line of reasoning. The question of original meaning is different from the question of original purpose and original expectations. Original meaning originalism says that we are bound by the first kind of meaning: what concepts did the words point to (or what was the semantic content of the words) at the time the text was adopted? Where the original meaning is vague, we must engage in constructions to flesh out the text and apply it to present day problems.

It would have been far more honest to say the following: Does the Second Amendment constitutionalize the right of self-defense? The original meaning can bear this construction. The evidence that this was an original purpose is mixed, although there is some evidence. But this purpose– constitutionalizing the common law right of self-defense– became an important purpose, perhaps the most important purpose attributed to the Amendment throughout the 19th century, as the country gradually moved away from civic republican ideals and toward what we would now call classical liberal notions. This gloss on the text is a permissible construction, and it is a construction that has deep roots in our history and traditions. Therefore we should accept it as one of the purposes of the Second Amendment. So Scalia’s basic conclusion is correct.

But note that this is not an argument derived wholly from original meaning. Rather, it is an argument from what I would call text and principle. It starts with the original meaning and then, noting that the text points to a principle, it asks what the principle is. It then inquires into the larger purposes behind a vague text, and the purposes don’t have to be the originally intended purposes. Other purposes can count, as long as they are consistent with original meaning. In this case, the Privileges or Immunities Clause was believed to protect the right of self-defense against the states. This is an especially powerful reason for holding that the Second Amendment, which binds the federal government, also protects this right. (Thus the strong evidence for incorporation of a self-defense right against the states gives us good reasons to adopt this permissible construction of the Second Amendment with respect to the federal government).

Scalia’s basic result, I repeat, seems to me to be correct. But the key move in his opinion is not a deduction from original meaning. It is permissible reading, but Scalia does not want to recognize that it involves a choice on his part. He reads history anachronistically and he confuses original meaning with original purpose and original expectations in order to avoid presenting what he is doing as a choice.

Heller is a permissible construction of a vague text, consistent with original meaning but not compelled by it. The right of self-defense became associated with the Second Amendment over the course of history, as generations of Americans asked what the Constitution and the Bill of Rights meant to them in their own time. The argument for the constitutional right of self-defense is, in other words, an argument from living constitutionalism. Justice Scalia is well known to despise the idea of living constitutionalism. But what he has given us in Heller is actually a living constitutionalist argument disguised as law office history.

Comments:

I think you're overanalyzing this: As the 2nd amendment doesn't qualify the right as to purposes, it's a right to keep and bear arms for ANY legitimate purpose.

The right of self defense isn't just a quintessentially legitimate purpose, it's the specific purpose Heller was appealing on the basis of! The reasoning would have been exactly the same had Heller sued for his right to own a gun for any other legitimate purpose.

You should stop straining to find something wrong with the opinion.
 

Brett is exactly on point as to the original meaning of the operative clause found by the Court - Americans (less felons and the insane) may possess and carry arms for any lawful reason.

Sandy also speculated that Scalia was attempting to incorporate the common law right to self defense into the Second Amendment. However, I would suggest that a better reading of that opinion is that Scalia was simply noting that self defense was a well established lawful purpose for bearing arms.

A future plaintiff may want to use Scalia's analysis to establish a Ninth Amendment implied right to self defense, but I do not think that the plaintiff would succeed arguing that the Second Amendment guarantees such a right.
 

Brett and Bart,

I don't think that quite works, because Scalia in dicta indicates that he doesn't believe that the 2nd amendment recognizes a right to keep and bear arms for any legitimate purpose. Or more specifically does not believe it recognizes a right to keep and bear ANY firearm for any legitimate purpose, but only a right to keep and bear those firearms that were in "common use"
Scalia then does not address (or does not adequately address) the problem that modern handguns were not in common use at the founding (if that is the standard), or the problem that the reason so called unusual arms (fully automatic rifles for instance) are not in common use today, if that is the standard, is because they were banned by federal law - and not any inherent unusualness in the arms themselves.
Scalia only gets to avoid the parade of horribles (massive proliferation of AK-47s, M16s, whatnot) and thereby make his opinion acceptable by adopting a non-originalist framework.
 

Great post.

There's a good reason Scalia didn't try to hold that you could bear arms for "any legitimate purpose" or "any lawful reason" -- that would be question-begging. The entire issue in Heller is which purposes are "legitimate" within the Amendment and which are not. Both sides agree that state militia-related purposes are legitimate; the question is whether individual self-defense in the home is also.

Scalia goes to enormous lengths to draw that tenuous thread of "self-defense" talk out of the tangle of 18th century sources. He ends up placing a lot of weight instead on the 19th century source material that, as Jack Balkin correctly observes, provides far more support for his interpretation. Even if you think Scalia need not have done this, or should not have done this, you have to acknowledge that Scalia himself, at least, thought it very important to trace his individual self-defense theory to (what he argued were) originalist sources. He did not think he could get by with the sleight of hand of "any legitimate purpose." His incongruously anachronisic efforts to read all that 19th century material back into the 18th century really illustrates that the case is, as this post puts it, an example of "a living constitutionalist argument disguised" as original meaning originalism.
 

You should stop straining to find something wrong with the opinion.

Again, if the post was titled "Another thing wrong with the Heller decision," your comments would make a bit more sense. As a response to the specific matter of it being a "sparkling example" of original meaning originalism, Jack's post should be understood in the context of his position vis-a-vis originalism and all its many variants. He should be able to address concerns about points made in matters clearly relevant to his specific research and theoretical interests without being accused of straining to find something wrong in the opinion. In fact, if I'm not mistaken, by emphasizing that Scalia is arguing from text and principle, Jack comes closer to compliment than insult, and his repeated assertions that Scalia's result is correct point to a satisfaction with the outcome.

The means are a different matter entirely, and the faults in a particular line of originalist reasoning seems a more than suitable topic for someone who has published articles on the distinction between x,y,and z brands of originalism.
 

one thing that is clearly *not* part of the original text, whether in its semantic content or in its purpose, is a label stating that the first fourteen words are a "preamble" or "preface".

the bill of rights has a preamble. the second amendment does not.

a lot of nonsense is spouted about how one part of the 2a is a 'preamble' and not all of it contains 'operative clauses'.

if you see anyone taking this line, you can tell that they are trying to write their own constitution, not reading the one in front of them.
 

To the extent that the right to bear arms appears to be most analogous to the right to vote (i.e. both a privilege and a duty, and suitable only for responsible citizens, thereby excluding felons and the insane), the 2nd Amendment also seems unlikely to apply to non-citizens.

Brett says,
"The reasoning would have been exactly the same had Heller sued for his right to own a gun for any other legitimate purpose."

I don't think so. Suppose Heller were an avid target shooter and preferring to use a handgun for such purposes. I have no doubt Brett would consider target shooting to be a legitimate purpose, but I find it unlikely that Scalia would be able to find target shooting in either the 1789 or 1866 purpose for the 2nd Amendment.
 

Suppose Heller were an avid target shooter and preferring to use a handgun for such purposes. I have no doubt Brett would consider target shooting to be a legitimate purpose, but I find it unlikely that Scalia would be able to find target shooting in either the 1789 or 1866 purpose for the 2nd Amendment.

I think Brett's point is more comprehensive than this. He is saying that once we agree on what the clause "means", we must interpret the clause literally, such that any weapon which fits the description "bearing arms" may be "kept". The purpose for which you "keep" it does not matter.

There are problems with this argument, though it's a common enough view of how the legal system is supposed to work. I'll mention just one here: that's not, in fact, the way the legal system works, nor the way it worked in 1790.

To the contrary, and no matter what the document (statute, will, contract, or constitution), the courts never ask whether the wording is broad enough that it "could" apply. That would, upon reflection, be a silly question to ask. The reason there's a dispute is precisely that one party thinks the literal words DO cover the situation while the other party thinks they don't. Language simply isn't definitive enough to give us incontrovertible answers.

What courts do in these cases, therefore, is use various interpretive principles they've developed over the centuries in order to resolve the dispute. One of those principles -- and it pre-dates the Founding by quite a long time -- is to ascertain the purpose of the law (in old-style language, the "reason" of the law).

Note that even a strong originalist shouldn't have any problem applying this principle. It was exactly what the Founders would have expected a court to do. (Somewhere there's a quote from Hamilton saying just this, but I can't locate it right now.) Thus, the shift from "semantic content" to "purpose" is something that courts do every day in myriad situations and were doing long before the Constitution was a gleam in Madison's eye.
 

I think I hear W.V.O. Quine groaning under the weight of law professor and judge-made philosophy of language. It's one of those things that intrigues me about law. On the one hand, it has to be operational. It has to govern. It has to deal with messy humans in a messy world. On the other hand, there is a drive to rationalize it into a deductive, rigidly valid system. To achieve any kind of theoretical purity, there has to be inquiry into theories of language, etc. Yet, these theories of language are deployed with an eye towards achieving results. They aren't developed for pure theory's sake, as a philosopher of mind, or a philosopher of language has the luxury of doing. Yet, so much time, and brainpower, is spent on "puzzling through" these theories of interpretation in order to align opinions along a pure, theoretical axis. It's just silliness. We need some Neo-Realists to smash up this bunk. Or Neo-Neo-Realists. Or whatever. (Notwithstanding Tamanaha's views. (Apologies if my spelling was in error.))
 

I should add that yes, I know Quine is dead.
 

I disagree with this entire line of reasoning. The question of original meaning is different from the question of original purpose and original expectations.

So, Professor Balkin, you're upset that you're not an originalist and that a sound originalist opinion rejected your "variant" of originalism, which isn't really originalism at all. I guess your varient of originalism is about as persuasive to originalists as your theory of partisan entrenchment is to liberals who post at Slate.
 

-- There is a second principle that almost everyone agrees was an original purpose: to prevent the federal government from disarming citizen militias that were not organized by states, but that might arise spontaneously to fight a tyrannical federal government, tyrannical state government, anti-republican insurrection, or foreign invasion. --

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That majority gave short shrift to this notion, and as a result, I think falls short of expressing "original intent." I appreciated too, your attachment of the notion of "civic" or "civil" responsibility inherent in this "power to the people."

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But a couple of further observations. I think the word "free" as in "free state" embodies this notion of trusting the public to resist use of its power of "republican insurrection." Such a move is extreme, and ought not be taken or threatened unless the government threatens the condition of "freedom." And your use of "spontaneously" plays into that. Without the hardware, a "free" people couldn't "spontaneously" check the power of their government.

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Finally, the ability to mount self defense against common criminals, or to form a posse to bring a "gang" to justice (I'm picturing bringing the gang to a court, not to a lynching tree) is enabled by a sufficiently common ownership of militia weapons. In other words, the self-defense facility is inherently internal to the "republican insurrection" facility.

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Limiting the right to keep and bear arms to the self-defense realm reduces the power of the public to reign in its government. I think that is an error in the majority's opinion. At the same time, today, the political reality is that people don't want the power to throw off their government. And so, "self defense" is enough comfort that they are protected.
 

I think the word "free" as in "free state" embodies this notion of trusting the public to resist use of its power of "republican insurrection."

The Dorr Rebellion and Luther v. Borden put a much bigger dent in this theory than Heller.
 

-- The Dorr Rebellion and Luther v. Borden put a much bigger dent in this theory than Heller. --
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Not to mention the Civil War.
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Still, while respectfully noting which side prevailed in each of those unpleasantries, I hold (FWIW - just an expression of personal firm conviction, not of being in charge) that the 2nd amendment is meant to recapitulate (not "grant") the right of a free people to throw off their government by force of arms.
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Even if the "right" isn't taken all the way to implementation, the fact that the power is there has a balancing effect. As a parallel (probably not a good one, given a feckless Congress), the ability to mount impeachment - and maybe even threatening it without carrying it out - serves as a check.
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At any rate, it's silly to think the function of the 2nd amendment, as seen by the founders, is just to let people defend their personal homestead and no more.
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And so, I persist in finding the majority opinion to be unfaithful to original intent. Just the same, it's substantially better than the alternative offered by the dissent.
 

"...You should stop straining to find something wrong with the opinion."

Yes, Jack, for pity's sake, please stop with the critical thinking already!!
 

David Biron Davis has convincingly argued that slavery was extraordinarily important to the republic's social and economic culture during the early republic. So much so, that it seems reasonable to conclude that the founding generation believed that the right to keep and bear arms was intended in part to guard against and suppress slave rebellions.

If so, this has unexplored repercussions.

However, it does seem to me that Steven's speculation as to the intent of the Republican prosecutor in the Reconstruction era case of US v Cruikshank isn't as implausible as it first seemed to me: after the civil war, it seems that the Republicans did indeed believe that the freedmen had the right to assemble into a militia (state sanctioned or otherwise) and to keep and bear arms to resist the organized white forces that were terrorizing and killing them.
 

The claim that a writer is "overanalyzing" a Supreme Court opinion is not a proper or acceptable criticism leveled against a commentator who is critically examining the principles avowed by an opinion's author and the manner in which he or she has applied those principles in judging the facts before them.

For example, if a judge's supreme tenant is to honor the acts of the legislative branch unless those acts clearly fall outside the bounds established by federal constitutional provisions and amendments thereto, as Justice Breyer claims in identifying the overriding principle that guides his judicial thinking, then analysts who evaluate his decisions are entitled to "overanalyze" his opinions (that is analyze in depth and with a critical eye theclaimed bases for the decisions and whether Justice Breyer is employing his first principles in a consistent way) contributes significantly to the debate as to whether the author really follows principles or just picks and chooses among a potpourri of occasionally conflicting guideposts to justify his or her ruling in any case. That is what our commentator has attempted to do in this case in exposing some frailties in Justice Scalia's typically forceful, but not necessarily principled decision in Heller. I welcome such thoughtful analyses and believe that the decision-making process -- particularly at the Supreme Court level -- can benefit from more of it.

jbaio Legal observer form New York.
 

It turns out that there is an original principle that everyone agrees the framers and ratifiers had: it was to prevent the federal government from disarming citizen militias organized by the states.

Where was this shown to be a concern of the framers? Did any early drafts read "A well regulated Militia, being necessary to the security of a free State, the right of the States to maintain Armouries for the Use of their Militias, shall not be infringed."
 

Where was this shown to be a concern of the framers? Did any early drafts read "A well regulated Militia, being necessary to the security of a free State, the right of the States to maintain Armouries for the Use of their Militias, shall not be infringed."

A number of anti-federalists expressed this concern in the ratification debates on the Constitution. That was the background, for example, to Federalist 29.

In addition, it's pretty much universally agreed that the purpose of the BoR, originally, was to restrict the new federal government; it didn't apply to the states at all. Barron v. Baltimore. Thus, most people agree that the 2A exists at least in part to protect state control over the militia.
 

Federalist 29.

I will check it out, thanks.

the purpose of the BoR, originally, was to restrict the new federal government; it didn't apply to the states at all.

Applicability of the BoR to the states could hardly have been a significant concern at the time. Think about the sequence of events for a moment: The states already existed and were in a loose confederation at this time. A state citizen knew where he stood with respect to his state government -- most states had adopted a declaration of rights of some kind. But people felt that the confederation was not good enough, that a more perfect Union was needed. Naturally people did not want to yield any rights they then possessed just to have this more perfect Union. So the BoR assured that the federal government would not take away any rights or freedoms that people enjoyed under their state's government. The appeal, if any, to a voter of the continuation of a state's power to maintain a militia is more abstract.
 

Applicability of the BoR to the states could hardly have been a significant concern at the time.

Actually, it was a concern. For example, Madison's original BoR included a freedom of religion clause applicable to the states. Congress eliminated this (to Madison's considerable regret -- he told Jefferson that he considered it "the most valuable" one).

In addition, the anti-federalist component had a large states rights aspect to it. They wanted restrictions on the feds which would limit federal power vis a vis the states. By enforcing these rules against the feds, the BoR partially met that goal. As an obvious example, by banning a federal religious establishment, those states which had established religions (MA and CT) could preserve their own.
 

Here, for example, are some of the amendments proposed by the NY ratification convention showing the states rights concerns:

"That nothing contained in the said Constitution is to be construed to prevent the legislature of any state from passing laws at its discretion, from time to time, to divide such state into convenient districts, and to apportion its representatives to and amongst such districts."

"That the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state."

"...that no treaty is to be construed so to operate as to alter the Constitution of any state."

And here are some from VA:

"That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government."

"When the Congress shall lay direct taxes or excises, they shall immediately inform the executive power of each state, of the quota of such state, according to the census herein directed, which is proposed to be thereby raised; and if the legislature of any state shall pass a law which shall be effectual for raising such quota at the time required by Congress, the taxes and excises laid by Congress shall not be collected in such state."

"That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislature of any state shall neglect, refuse, or be disabled, by invasion or rebellion, to prescribe the same."

"That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."

This last one, of course, speaks directly to the issue you raised.
 

JB --

If the first 2 original meanings of the 2nd Amendment are so clear, how come nobody talked that way before the decision? Is it because originalism only functions post hoc, as a measure of the extent to which a Court opinion incorporates an understanding of historical meaning, a mill with which law professors can grind exceedingly fine but of no utility to the decisional process?

Furthermore, you don't seem to address the efficacy of the drafters of the 14th Amendment in making their understanding of privileges and immunities part of the Bill of Rights. While the Court went through a struggle over incorporation, by which the provisions of the Bill of Rights were made applicable to the states by operation of the 14th Amendment, apparently at the same time there was reverse incorporation, by which 19th Century concepts of privileges and immunities were made applicable to the federal government by virtue of the 5th amendment due process clause. Bolling v. Sharpe.

It is also inteeresting that the 2unambiguous meanings of the 2nd Amendment are both structuralist in nature, that is, both address the division of power and authority between state and federal government and between branches of the federal government. This is certainly at the core of Madison's enterprise and the Convention addressed its substantive disagreements through structural compromises. These compromises could not overcome the moral differences, resulting in the Civil War and a series of morality-based Amendments (13-19). It is this structuralism that made the Federalist Papers necessary to explain the intended function of the structure, the lessons negative and positive the Founders drew from history.

I continue to see Heller as the apex of originalism. The next new thing is already out there waiting to resonate to the opinions of a new Court.
 

I admit I haven't read Heller as carefully as I would like as of yet, but my first instinct is to agree with Scalia's result, if not necessarily his analysis.

But shouldn't we be analyzing Heller along with Scalia's dissent in Boumediene? Scalia's qualified (at least by dicta) position in Heller rests on the principle that the Constitution takes some policy choices off the table. Yet in Boumediene, Scalia was perfectly willing to allow the Congress (and presumably the president, if read in tandem with his other habeas dissents) to end-run habeas corpus. If the Constitution takes certain policy choices off the table, that would definitely be one. This has frightening implications for the intellectual credibility of Scalia's originalism.
 

If you think the Constitution guarantees that private militias can assemble and store arms, you clearly think the Constitution is a suicide pact just waiting for the Hells Angels, the Crips, and the Blackwaters of this land to pull the trigger.
 

-- If you think the Constitution guarantees that private militias can assemble and store arms, you clearly think the Constitution is a suicide pact just waiting for the Hells Angels, the Crips, and the Blackwaters of this land to pull the trigger. --
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Those outfits are already keeping and bearing arms. I'd not give them free rein, preferring instead to be able to form an armed counterforce if necessary.
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Plus, the 2nd amendment doesn't mean "disarm the government" or "disarm the police." Sheesh.
 

"that the original meaning of the phrase “keep and bear arms” isn’t limited to military uses."

In fact it is. It appears in MILITIA CLAUSES exclusively.

The only state constitution that included a right concerning guns other than as member of the militia -- which was a formal status, not the loony nonsense about volunteer "patriots" -- was VT's. And that was as a WHOLLY SEPARATE clause; and whereas it included the phrase "fish and fowl" it DID NOT include the phrase "right of the people" in any form.

And I suspect that was included as counter to -- but not prohibition against -- the fact that gun-control, and even confiscation, laws had existed, and were not out of the question for the Founders/Framers who had enacted just such laws.
 

"I think you're overanalyzing this: As the 2nd amendment doesn't qualify the right as to purposes, it's a right to keep and bear arms for ANY legitimate purpose. . . ."

"# posted by Brett"

Let us know when you've actually READ the Second Amendment, and not merely your favorite distorted snippet from it.

Meanwhile, the Second doesn't say "anyone can have guns for ANY legitimate purpose. It's history, and its specific terms, concern ONLY "well regulated militia".

What is a "well regulated militia"? It is a militia UNDER LAW. Are you a militia? No -- and claiming to be won't make it so. Is a "militia" an "indivdiual"? No, it is not.

The Second never had anything whatsoever to do with "individual" anything. And it still doesn't, those wanting it otherwise, and ignorant of the legal history and INTENTS of those who WROTE it notwithstanding.

One needn't "strain" to find the decision wrong: one only need read the DEBATES of those who WROTE the amendment.

Their concern was an alternative -- the militia -- to a standing army. Period. None of that has anything whatsoever to do with "individual" anything.
 

"If you think the Constitution guarantees that private militias can assemble and store arms, you clearly think the Constitution is a suicide pact just waiting for the Hells Angels, the Crips, and the Blackwaters of this land to pull the trigger.

"# posted by EliRabett : 11:59 AM"

You've got taht exactly right. What is the meaning of "WELL REGULATED"? It means UNDER RULE OF LAW, as enacted by Congress.

"-- If you think the Constitution guarantees that private militias can assemble and store arms, you clearly think the Constitution is a suicide pact just waiting for the Hells Angels, the Crips, and the Blackwaters of this land to pull the trigger. --

"Those outfits are already keeping and bearing arms."

Then illegally so, as they are NOT subject to the Militia Act/Title 10, which is REQUIRED if one is to be a LEGAL militia.

"I'd not give them free rein, preferring instead to be able to form an armed counterforce if necessary."

Why not prosecute them for what they are? Criminal gangs? That's what the Founders/Framers did with Shays' under the Articles, and what they did with "Whiskey" post-ratification.

"Plus, the 2nd amendment doesn't mean "disarm the government" or "disarm the police." Sheesh.

"# posted by cboldt"

The Second Amendment only does one thing: guarantees the states their right to keep WELL REGULATED militia -- "WELL REGULATED" meaning UNDER RULE OF LAW as enacted by Congress.
 

Off the wall --

"Federalist 29.

"I will check it out, thanks."

The Federalists, in addition to not being law, is IRRELEVANT to the issue: The Federalist consists of newspaper articles written by a minority of delegates to the Constitutional Convention with the express purpose of "selling" the Constitution.

At the time it was still beleived by Madison that there was NO NEED for a Bill of Rights, therefore it doesn't apply to the Bill of Rights.

"the purpose of the BoR, originally, was to restrict the new federal government; it didn't apply to the states at all."

Actually it both restricts the Federal gov't AND secures specific rights against infringement.

The Second Amendment is one which NEED NOT be "incorporated" in the 14th in order that it apply to the states because it was a STATES right to begin with: it's purpose was to assure the states that they could keep their WELL REGULATED militia.

"Applicability of the BoR to the states could hardly have been a significant concern at the time."

It already applied to the states to the degree it secured rights against Federal infringement.

"Think about the sequence of events for a moment: The states already existed and were in a loose confederation at this time."

Nope. The Constitution was ratified WITHOUT a Bill of Rights; theefore, with ratification, the US was no longer a "confederation".

It was the first Congress under the newly-ratified Constitution which debated and framed the Bill of Rights.

"A state citizen knew where he stood with respect to his state government -- most states had adopted a declaration of rights of some kind."

From four of which was formulated that which became the Second Amendment.

"But people felt that the confederation was not good enough, that a more perfect Union was needed. Naturally people did not want to yield any rights they then possessed just to have this more perfect Union. So the BoR assured that the federal government would not take away any rights or freedoms that people enjoyed under their state's government. The appeal, if any, to a voter of the continuation of a state's power to maintain a militia is more abstract."

Huh? Completion of ratification of the Constitution occurred on: June 21, 1788.

The Bill of Rights, framed by the first Congress under the newly-ratified Constitution, was submitted to the states for ratification on: September 25, 1789.

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

"# posted by former law student"

Wingnuts have managed to make of The Federalist more than it is worth -- even as they actually argue for states rights. It is a volume of articles -- up-front admitted to have been an "advertising campaign" intended to "sell" the Constitution -- written extra-legislatively by a small minority of delegates to the Constitutional Convention. And as it its intent was to "sell" the Constitution, it is not reliable in all particulars.

In some respects it is useful history, but in none is it law.
 

""That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."

"This last one, of course, speaks directly to the issue you raised.

"# posted by Mark Field"

Which latter is, of course, about rule of law -- "WELL REGULATED" -- which Congress has never neglected to provide. And here is the position held on this very issue by a famous Founder who was also an anti-Federalist:

SPEECHES of His Excellency the Governor

and

Messages Transmitted by His Excellency to the General Court During the Legislative Year

[May Session, 1792.]
Wednesday, June 6.

. . . .

GENTLEMEN,
I have directed the Secretary to lay before you such Acts & proceedings of the Congress of the United States, as have been forwarded to me: Among them, is an Act for regulating the Militia of the States. That Act appears to me to be quite consonant to the Constitution of the General Government, & I shall, as commander in Chief of the Militia of this State take every measure within my power to render the Militia respectable under it. . . .
JOHN HANCOCK.

Council Chamber, June 6th, 1792.
_____

That included, of course, conforming the state's EXISTING Militia Act -- under which the state's militia had already been "WELL REGULATED" for hundreds of years -- to the Federal, in keeping with the supremacy clause.
 

"It turns out that there is an original principle that everyone agrees the framers and ratifiers had: it was to prevent the federal government from disarming citizen militias organized by the states."

This is a mistatement of the actual history.

"Where was this shown to be a concern of the framers? Did any early drafts read "A well regulated Militia, being necessary to the security of a free State, the right of the States to maintain Armouries for the Use of their Militias, shall not be infringed.""

"# posted by former law student"

The point that is avoided or missed is this: there were no so-called "citizen militias" in the sense implied: voluntary gatherings of "patriots". From the outsidet on this continent, the colonies' militias were UNDER THE RULE OF LAW; they wer not simply ferocious pro-freedom gun-nuts picking up arms to preotect their colonies and gov'ts. Rather, such militia were REGULATED UNDER LAW FROM THE OUTSET.

That means that, by the time of the "revolution," the several states' militias had existed for hundreds of years, and had all along been REGULATED UNDER THE RULE OF LAW. The MA-Bay Colony's militia act of at latest 1645 stipulated what the militia was to do if it met an unfamiliar and unidentified armed band -- and it wasn't "Get together and party hardy"; it was, rather, essentially, "Shoot first and check IDs later."

The purpose of the militia was all along NOT solely about defending the community against external enemies; it was ALSO about protecting the gov't -- stability of laws and gov't -- from overthrow. Thus the militia being UNDER the rule of law, not in spite of it.

The "in spite of" is illiterate wingnut/gun-nut hogwash.

How much debate, in the debates and framing of the Bill of Rights, was there of the purpose of the militia being to "defend against" "tyrannical" gov't -- Federal or otherwise?

NONE. ZERO. NADA.

And that isn't because it was understood that that was a/the purpose of the militia; it is becasue the militia was intended to be an alternative to a standing army -- and thus NOT to be a threat to law and gov't.

That was further ensured by designating, in the several state constitutions, that the Commander in Chief of the militia -- this nothing new either -- be the state's governor. Is the state's governor intended or expected to "defend against" his own gov't?
 

"David Biron Davis has convincingly argued that slavery was extraordinarily important to the republic's social and economic culture during the early republic. So much so, that it seems reasonable to conclude that the founding generation believed that the right to keep and bear arms was intended in part to guard against and suppress slave rebellions."

Where the "history" for that "argument" and conclusion is I don't know. What I do know is that the only "rebellion" which received extensive commentary by the Founders/Framers, and which some conclude/d "caused" the Constitution, was Shays' -- which was composed entirely of WHITES.

"However, it does seem to me that Steven's speculation as to the intent of the Republican prosecutor in the Reconstruction era case of US v Cruikshank isn't as implausible as it first seemed to me: after the civil war, it seems that the Republicans did indeed believe that the freedmen had the right to assemble into a militia (state sanctioned or otherwise) and to keep and bear arms to resist the organized white forces that were terrorizing and killing them."

Where does one find that "history" outside Stevens' speculation? See Presser for refutation of "non-state-sanctioned" militia being approved.

"# posted by Craig Roecks in NV"

What alarms is that so much of the self-serving ahistorical claims made by wingnuts/gun-nuts has come to be treated unquestioningly as actual fact, rather than the false propaganda it is.
 

"Thus, most people agree that the 2A exists at least in part to protect state control over the militia.

"# posted by Mark Field"

Yep. It was a compromise intended to enlist sufficient support from Anti-Federalists to ensure ratification of the Constitution.

The Second was a state's right from the outset. It did not, though, amend or negate the Militia Clauses in the Constitution, therefore Congress retained/s the authority and duty to -- well -- regulate the states' militia.
 

hey .. mark field ..

tha ks ever-so-much for the links to the door rebellion and the luther .v borden links ..

the luther case is fascinating reading .. imo ..
 

"Thus, most people agree that the 2A exists at least in part to protect state control over the militia.

"# posted by Mark Field"

Yep. It was a compromise intended to enlist sufficient support from Anti-Federalists to ensure ratification of the Constitution.


Funny, when I argued that the Bill of Rights made the Constitution more appealing to the voters, you argued that the Constitution was already ratified, so the Bill of Rights could have no such effect. In future, if you want to argue both ways, you might want to put each argument in a separate thread.

The Second was a state's right from the outset.

The Second was a right of the people from the outset. The Bill of Rights carefully distinguishes "the people" from "the states" in the Tenth Amendment, and makes it clear that "the people" are individuals in the Fourth Amendment. Thus the Second Amendment refers to an individual right to keep and bear arms. As further evidence that he Second Amendment referred to an individual right, Englishmen had held this right, disconnected from militia service, since at least 1689 when the English Bill of Rights was enacted. Any Bill of Rights interpretation that assumes that Americans agreed that they had fewer rights than Englishmen is a non-starter. Finally, a Second Amendment referring to powers of states would be a tremendous non-sequitur, because the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth all refer to the rights of individuals, while mention of the powers of states was reserved for last, in the Tenth Amendment, and even there they are shared with the people.

It did not, though, amend or negate the Militia Clauses in the Constitution, therefore Congress retained/s the authority and duty to -- well -- regulate the states' militia.

Right, because the Second Amendment has NOTHING (as you might put it) to do with the Militia Clauses. The Second Amendment merely states that the right of individuals to own and use arms is a prerequisite for the properly functioning militias needed by polities.

As I've posted here before, "well-regulated" was an idiom used at the time to describe households, young men, young women, ships, children, etc. etc., none of which are regulated by Acts of Congress. Here, well-regulated means to function properly, like clockwork, or more precisely, to meet expectations for the item being described.
 

"former law student" --

"Thus, most people agree that the 2A exists at least in part to protect state control over the militia.

"# posted by Mark Field"

"Yep. It was a compromise intended to enlist sufficient support from Anti-Federalists to ensure ratification of the Constitution.

Funny, when I argued that the Bill of Rights made the Constitution more appealing to the voters, you argued that the Constitution was already ratified, so the Bill of Rights could have no such effect."

Pay attention, okay? --

1. Completion of ratification of the Constitution occurred on: June 21, 1788.

After that the gov't, including the Congress, was organized under the newly-ratified Constitution.

Got that?

2. The Bill of Rights was proposed to the states by the first Congress on:September 25, 1789.

3. Raqtification of the Bill of Rights was completed on: December 15, 1791.

"In future, if you want to argue both ways, you might want to put each argument in a separate thread."

Now "both ways" about it. Here's what happened:

The split on ratifiying the Constitution was roughly fifty-fifty when it came to MA-Bay ratifying. Whereas delegate Sam Adams betrayed no bias either way, John Handcock, who was highly popular, was head of the anti-Federalist faction. The anti-Federalists were opposed to ratification of the Constitution essentially because it had no Bill of Rights.

So a compromise was struck:

1. Along with the state's Notice of Ratification could be included PROPOSED amendments to the Constitution. And,

2. Hancock was promised he would be made first President, or VP, or whatever. Hancock, being outrageoulsy vain, bought it.

3. Hancock brought his faction with him, and read the proposed amendments to the Convention, giving the impression he had written them. (They were actually written by wealthy conservative Federalist merchant Theophilus Parsons.)

Thus the Contitution was ratified in MA.

Subsquent states to ratify followed that example by including PROPOSED amendment with their Notice/s of Ratification.

4. James Madison pulled together the vaious proposed amendments and codified them into a resolution he submitted in the first Congress.

The Second was a state's right from the outset.

"The Second was a right of the people from the outset."

This is the fact: there were the Militia Clauses in the Constitution -- which freaked the anti-Federalists, as they didn't appear to protect the states' right to keep their militia (which they'd had all along).


"The Bill of Rights carefully distinguishes "the people" from "the states" in the Tenth Amendment, . . . ."

Yes. And?

". . . and makes it clear that "the people" are individuals in the Fourth Amendment."

Does the Fourth say "person"? Or does it say "people"? (I'm playing with you: I don't buy the NRA's presentist imposition of twentieth century grammar onto texts written during a time when there wasn't a standard spelling, and paragraphing and punctuation were a relatively new innovation.)

"Thus the Second Amendment refers to an individual right to keep and bear arms."

Since when did the Fourth or Tenth Amendment become a substitute for the Second?

"As further evidence that he Second Amendment referred to an individual right, Englishmen had held this right, disconnected from militia service, since at least 1689 when the English Bill of Rights was enacted."

The Constitution, and Bill of Rights, were not drawn from English law. They were drawn from several centuries of law evolved on this continent into, as of 1776-77, and 1780, state constitutions which included their own Bills of Rights. The Second Amendment was drawn not from English law -- from which the Founders had declared INDEPENDENCE, and on which declaration had won.

"Any Bill of Rights interpretation that assumes that Americans agreed that they had fewer rights than Englishmen is a non-starter."

The assertion that the Constitution and Bill of Rights have something to do with English law is a non-starter. As is the lack of understanding that one of the cuases of the "revolution" was that the colonists in some respectes claimed GREATER rights than the English had -- which led to extensive turmoil in the 17th century, and interim period during which MA-Bay's Charter was revoked (for having acted as if it had greater rights than the Crown allowed), and the overthrow and imprisonment of the Royal governor, in MA-Bay.

The effort was to consolidate colonies into larger "Dominions," under Gov. Edmund Andros. The outcome of that "revolution" was not only the dissolution of the colonial system, as intended, but also the establishment of the provincial system -- under which the colony of MA-Bay, as example, became "Province of" (why did the provincials claim instead to be "colonists"? politics).

"Finally, a Second Amendment referring to powers of states would be a tremendous non-sequitur, because the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth all refer to the rights of individuals, while mention of the powers of states was reserved for last, in the Tenth Amendment, and even there they are shared with the people."

And yet the Second Amendment DOES use the term "state" -- which means GOV'T -- not "people". And nothing in the Federal Constitution -- or Bill of Rights -- changed that fact. The state's militia had all along been UNDER the law, with the governor, as stipulated in the states' constitutions, as the head of the militia. The governor IS the head of the state gov't, correct?

The purpose of the militia is the defense of the community. The ultimate purpose of the militia is the defense of the STATE/[system of] gov't/rule of law.

Again: "We the people" is not, "We the individual," or "I the people". "People" is PLURAL, as "person" is individual. And again: I won't buy into the NRA's effort to apply twentieth century grammar -- and distortions at that -- to documents which were written before such grammar existed.

The phrase "the right of the people to keep and bear arms" was incorporated in the state constitutions' Militia Clauses in 1776-77 (and 1780). The only constitution which has anything other than that -- i.e., individual right concerning guns -- is VT's, which secures -- in a wholly separate cluase -- the right to "fish and fowl".

The phrase USUALLY reads: "the right of the people to keep and bear arms in defense of the STATE". And if one reads the DEBATES, one sees combined with that, in various configurations, the concern that standing armies are a threat to liberty. This, from Elbridge Gerry, of MA-Bay:

". . . . What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty."

And there is considerable debate of the clause -- last in the first draft -- "no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

Not whether it should be, but WHAT it should be -- should it, as example, include the person exempted paying a fixed amount of money? Find someone who will serve in his place? Might such a clause find half the population becoming "religiously scrupulous" during wartime?

"Person" is without question "individual". As is obvious to the barely-literate. "People" is as obviously PLURAL. Sam Adams in speaking of that phrase spoke of the militia being composed of "the whole of the people". He DIDN'T say "the whole of the person" or "the whole of the individual," neither of which would have made sense.

And why was that phrase -- the ONLY "individual right" debated concerning the Second Amendment --subject to so much debate -- and eventually voted DOWN? You really need to read the DEBATES, else you're high on the smell of the NRA's fraudulent cork. There are two basic parts to the debates of that which became the Second Amendment: that the militia is the preferred alternative to a standing army; and whether there should be a "conscientious exemption" clause to apply to those who are "religiously scrupulous of" -- AGAINST -- "bearing arms" in INVOLUNTARY MILITIA DUTY.

Yes: they called it "duty" not "right".

Meanwhile, according to Heller, the private ownership of guns is no less subject to regulation under the Second -- though Scalaia had to ignore the debates in order to find such a right there -- than they were outside the Second. As I've said here or elsewhere: the NRA's Second Amendmnet lie -- if one calls it instead an "argument" -- is a dead end; and worse: it results in DOUBLE the amount of regulation of private, individual ownership.
 

If I understand Balkin’s post correctly, he is saying that knowledge of original purposes is important and useful to original meaning originalism only insofar as a knowledge of original purpose(s) can help to control original meaning. That is, a meaning that is inconsistent with a known original purpose cannot be an original meaning. Beyond this, original purpose(s) have no real significance for original meaning originalism. But Balkin does not elaborate on his sentence, “The question of original meaning is different from the question of original purpose and original expectations,” so it is difficult to know precisely what he means. Speaking broadly, though, it would clearly be antithetical to original meaning originalism to seek constructions of the constitution which suit present political exigencies and which are consistent only with original purpose(s) but not with original meaning. If an interpretation is consistent with original meaning, then it is necessarily also consistent with original purpose, but the reverse is not true. So, once again, the purpose of recourse to original purpose is to help us control the interpretation of original meaning.

According to Balkin, then, the right of an individual to bear arms for the purpose of self-defense in the home cannot be demonstrated to have belonged to the original meaning of the Second Amendment. The right came to be so viewed over the course of the nineteenth century. What I do not understand is that Balkin seems to think that, in light of this history, the question has now been correctly decided in accordance with some principle of living constitutionalism to which he explicitly subscribes and to which Scalia in fact subscribes, but only under the cloak of a misapplied original meaning originalism. But what is the principle to which Balkin explicitly subscribes? Why should a particular understanding of the nineteenth century be allowed to control our interpretation of the Second Amendment? Is the idea that the interpretation which is closer chronologically to the original document gets particular weight, a weight that tends to override every subsequent possible interpretation?

So here is another possible interpretative strategy. One of the original purposes of the constitution is to promote the public safety. An interpretation of the Second Amendment which is inconsistent with that original purpose cannot be correct. The right of an individual to bear arms for the purpose of self-defense in the home is (by hypothesis) inconsistent with the maintenance of public safety. Therefore, that right cannot correctly be found in the Second Amendment, because original meaning cannot be inconsistent with original purpose. This strategy appears to satisfy Balkin’s requirements for correct interpretation, although both of its premises would have to be justified.

In conclusion, I do not understand the interpretative principles adumbrated in Balkin’s precis of living constitutionalism in his post, because that constitutionalism seems at first blush to be more moribund than living to this reader.
 

Why should a particular understanding of the nineteenth century be allowed to control our interpretation of the Second Amendment?

The argument is that the drafters and ratifiers of the 14th A (1) intended to incorporate the BoR against the states; and (2) understood the 2A as including an individual right to keep and bear arms. Thus, the original intent of the 14th A supports the right in question.
 

But Mr. Field, you're simply restating the fact that, for some reason, something that happened in the 19th century is supposed to be the controlling interpretation, and I just don't see why that should be the case. That is, either one opts for some sort of originalism and adheres to the original constitutional text, or one adheres to some sort of gradualism, and there are presumably a few other possibilities. But if one is adhering to gradualism, or living constitutionalism, or whatever one wants to call it, why privilege the 19th century in any particular way? I can see that the views of the people who drafted and ratified the 14th Amendment are important and cannot be ignored, but I cannot for the life of me see why they should be decisive.
 

But Mr. Field, you're simply restating the fact that, for some reason, something that happened in the 19th century is supposed to be the controlling interpretation, and I just don't see why that should be the case. That is, either one opts for some sort of originalism and adheres to the original constitutional text, or one adheres to some sort of gradualism, and there are presumably a few other possibilities. But if one is adhering to gradualism, or living constitutionalism, or whatever one wants to call it, why privilege the 19th century in any particular way?
I can see that the views of the people who drafted and ratified the 14th Amendment are important and cannot be ignored, but why should they be decisive? Indeed, how can they possibly be decisive?
 

Because the intent of the drafters and ratifiers of the 14th A is originalism so far as that amendment is concerned.

At least that's the argument. I'm not an originalist, so I'm just trying to state their position as I understand it.
 

"ledocs" --

"But Mr. Field, you're simply restating the fact that, for some reason, something that happened in the 19th century is supposed to be the controlling interpretation, and I just don't see why that should be the case. That is, either one opts for some sort of originalism and adheres to the original constitutional text, or one adheres to some sort of gradualism, and there are presumably a few other possibilities. But if one is adhering to gradualism, or living constitutionalism, or whatever one wants to call it, why privilege the 19th century in any particular way? I can see that the views of the people who drafted and ratified the 14th Amendment are important and cannot be ignored, but I cannot for the life of me see why they should be decisive."

Well, on one hand is the "rule" that when two provisions of law conflict, the later of the two controls. On the other hand, there are the bdebates by the Framers of the Bill of Rights, and then the 14th Amendment by late-comers who seem to have ignored the debates.

I'm not necessarly an "originalist," but as those who are held by the belief that the Second protects an "individual" right claim to be "originalists" or "original intenters" -- virtually claim to have known the Framers personally -- then I'm perfectly willing to refute their belief on their ground and by by means of their preferred rules.

The fact is that the Framers, as concerns the Second, only debated one posited "individual" right: that of conscientious exemption. Otherwise, there is absolutely no discussion of anything "individual" in any way, shape, or form, as the concern was an alternative to a standing army -- and that was the militia.
 

Fifteen professional historians filed an amicus brief on the history of the Second Amendment supporting Washington DC in the Heller case. It is clear that the minority of the Court in their Heller dissent relied on that brief for historical information.

The reason there was a 5/4 split in the Heller decision is because the majority justices rejected the arguments from these fifteen academics. Why? Because their amicus brief contained obvious errors of fact and actually avoided the most relevant period information regarding the Second Amendment's development. The brief was worthless because of these shortcomings.

For a detailed and documented look at erroneous assertions and misleading arguments found in the professional historians' amicus brief, look at On Second Opinion blog: http://onsecondopinion.blogspot.com
 

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