Balkinization: Don't Trash the Constitution, Justice Scalia

Comments:

Justice Scalia really shouldn't be as much of a saint to some people who use him as some model justice.

I think Thomas is wrong-minded on many things, but at least he has a more principled take on things here. And, Scalia's smarmy oral argument manner even makes me almost respect Thomas' silence. What did mommy say about not talking when you can't say anything nice?

Ironically, the Court asked for discussion of a subject nearly no one -- but the silent one -- really cared about. Why, I don't know. It is curious when Kennedy and Ginsburg was concerned about the open-ended nature of P/I.

They surely are not worried TOO much about that when unenumerated rights are secured under the Due Process Clause. I personally don't think substantive due process is as silly as some do. There has been good defenses of it, including using original understanding approaches.

But, not being open-ended is not exactly one of its pluses.

---

* BTW, someone should tell the justices that Justice Harlan concurred in Griswold; he dissented in Poe v. Ullman.

# posted by

Joe : 8:03 PM

Actually, I'm pretty sure Bork's "inkblot" was the 10th amendment, not the P&I clause.

Nor do I see any particular conflict between Scalia's disdain for "using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights", and using the Due Process clause to judicially enforce limitations on Democracy that ARE set forth in the Bill of Rights.

Which, you might note, includes the 2nd amendment.

Scalia isn't much of an originalist, which is hardly surprising when you realize he had to get nominated and confirmed. He's better known for a long-standing opposition to upsetting long settled law, even if it's bad law. So his opposition to overturning Slaughterhouse was hardly a shocker. It's been around too long for him to seriously consider overturning, no matter how bad a decision he might personally think it.

That opposition to overturning settled law, even bad settled law, also explains the hash he made of the Heller decision. 80 years of gun control were just too much for him to be willing to tackle head on. He's only willing to restore the 2nd amendment on the margins. You can't do that, and produce a very intellectually sound decision.

# posted by

Brett : 8:06 PM

At least according to this article by Ian Ayers, see n 34 (citing The Tempting of America at 166), Bork used in reference to the P or I Clause. http://www.law.upenn.edu/journals/conlaw/articles/volume11/issue5/Aynes11U.Pa.J.Const.L.1295(2009).pdf. I don't have the book itself, so let me know if I'm wrong about this.

# posted by

Doug Kendall : 8:16 PM

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# posted by

Joe : 8:16 PM

Yeah, there is no shortage of Irony when Justice Scalia does anything in his power to avoid rethinking the laughably bad interpretation of PorI from the Slaughterhouse Cases, yet was perfectly willing to find an individual right to a gun in the Second, when it had been assumed for years that it only protected a shared militia right.

(And before the Usual Suspects jump on me, realize I am NOT saying Heller is wrong, I am saying Scalia was willing to overrule what was the (if not consensus) dominant understanding of the Second, and find what had not ever been found in it before, but heaven forbid he consider whether the prior, discredited understanding of the PorI should remain good law.)

Hypocrite.

# posted by

nerpzillicus : 10:45 PM

Hypocrite and judicial activist. When it suits him.

Another bitter irony is Robert's mythical fealty to a "balls and strikes" approach to the law. So when they disregard the text and history of the law when arriving at their decisions, is it a "ball or a strike?"

What's demonstrable is not much is slowing the culturally and legally revanchist conservative right-wing Supremes from reshaping the law to their liking.

Stare decisis is little more than the gallows trapdoor lever they pull when they want to hang some pesky bit of jurisprudence because it didn't pay sufficient homage to their beady-eyed bourgeois sensibilities.

# posted by

rrheard aka Rabble Rousing Misanthrope : 11:30 PM

So far we have one person who thinks the 10th amendment was the inkblot and another who thinks it was the P/I clause. Judge Bork's actual testimony was: "I do not think you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says 'Congress shall make no' and then there is an ink blot and you cannot read the rest of it and that is the only copy you have I do not think the court can make up what might be under the ink blot if you cannot read it."

# posted by

Steve M : 12:37 AM

---It is true that some individuals have an idiosyncratic view of the
Fourteenth Amendment. Most famously, Judge Robert Bork of the
U.S. Court of Appeals for the D.C. Circuit, who, having aided Presi-
dent Richard Nixon in the “Saturday night massacre” by discharging
Special Prosecutor Archibald Cox, attempted to “nullify” the Four-
teenth Amendment by characterizing the provision as an “ink blot.” 34--

http://www.law.upenn.edu/journals/conlaw/articles/volume11/issue5/

Ayers P. 1300

# posted by

D. Ghirlandaio : 2:04 AM

I'm halfway into Kurt Lash's "The Origins of the Privileges or Immunities Clause, Part II: John Bingham's Epiphany" recently made available via SSRN at:

http://ssrn.com/abstract=1561183

I read Part I that examined antebellum P/I that was well done. I had hoped that Part II would have been published on a more timely basis to have been considered for McDonald v. Chicago. Lash makes it clear that Part II is not directly aimed at McDonald and that we shall have to wait for Part III that will address the public understanding of the 14th Amendment's P/I Clause.

Jack Balkin's recent essay "The Reconstruction Power" focuses on the Civil War Amendments, including the 14th Amendment's P/I Clause.

I can understand Justice Scalia's concerns with "the professoriate." Scalia is suspicious that the P/I Clause would open (reopen?) the door to more justice. Jack's essay focuses upon Congress' powers under the Civil War Amendments that had been stifled by the Supreme Court.

In my view, Heller was wrong. Scalia's limiting dicta in Heller has been criticized by the yahoos as not supported by originalism and history. Scalia needed this safety valve. But the yahoos responded that there should be no limits or at least strict scrutiny. The yahoos will press to limit the limitations. On the Lehrer Newshour yesterday, Marcia Coyle pointed to the issuance shortly after oral arguments of a press release by the yahoos to that effect, that gun rights with the money behind it will exceed the anti-abortion sources in upcoming elections. Perhaps this may solve the unemployment problem.

I thought the City of Chicago's brief was well done. In fact, I think that that brief convinced Scalia - and Roberts - to focus upon the traditional due process clause of the 14th Amendment for incorporation.

I did read the brief that included Mr. Kendall and Jack Balkin. I thought it was too much "law office history" as were most of the briefs in support of incorporation. In my view, Kurt Lash has been the most thorough on the history. Unfortunately his Part II and upcoming Part III (perhaps months away - hopefully before the McDonald decision is issued) may not influence the outcome. My fear is that gun rights will continue for years to come to take up the time of the judiciary and will lead to Justice Scalia matching CJ Taney's Dred Scott decision for infamy.

Now back to Kurt Lash's Part II and John Bingham.

# posted by

Shag from Brookline : 5:10 AM

Yup, I tend to get the 9th and 10th amendments mixed up; They're right next to each other, and both get ignored by the judiciary.

Nerp, it's easy for Scalia to distingish the P&I clause, and the 2nd amendment:

P&I clause: 140 year old SUPREME COURT ruling, which nobody but us obsessives cares about anymore.

2nd amendment: 80 years of LOWER court rulings, 3-4 million member NRA, and gun control movement getting it's ass handed to it across most of the country.

Be assured, that if the gun control movement had triumphed during the years the Supreme court wasn't taking 2nd amendment cases, and the meaning of the 2nd amendment was no longer a live controversy with millions of armed Americans ready to be really pissed off if he spiked their favorite Amendment, Scalia would have tossed the 2nd amendment into the same dustbin of history the P&I clause resides in.

As it is, gun controllers should be glad Thomas doesn't have 4 allies on the Supreme court, or I'd be down at the gun shop buying that full conversion kit for my Calico. You got half a victory: The 2nd survived, neutered.

# posted by

Brett : 6:37 AM

Is Brett being denied his manhood with this?

"As it is, gun controllers should be glad Thomas doesn't have 4 allies on the Supreme court, or I'd be down at the gun shop buying that full conversion kit for my Calico. You got half a victory: The 2nd survived, neutered."

What's Brett afraid of? Books? Or is he shooting blanks?

# posted by

Shag from Brookline : 7:02 AM

Brett-

2nd amendment: 80 years of LOWER court rulings,
Uh, what about Cruikshank, Presser, and Miller? All Supreme Court cases, all having been interpreted for years (the first two for over one hundred years) to hold the Second only protects bearing arms as it relates to State militias. Again, maybe those cases are wrong, but you are being dishonest if you assert there isn't old Supreme Court precedent supporting no individual right to bear a weapon.

3-4 million member NRA, and gun control movement getting it's ass handed to it across most of the country.

Under this logic, why are you still complaining about Wickard? Since the vast majority of Americans approve of the national regulation of commerce, doesn't this make the post-1937 New Deal Court's decisions correct?

# posted by

nerpzillicus : 9:53 AM

Uh, what about Cruikshank, Presser, and Miller? All Supreme Court cases, all having been interpreted for years (the first two for over one hundred years) to hold the Second only protects bearing arms as it relates to State militias. Again, maybe those cases are wrong, but you are being dishonest if you assert there isn't old Supreme Court precedent supporting no individual right to bear a weapon.

Heller did not overrule Miller. Anybody who says otherwise is either illiterate or dishonest. I try to give people the benefit of the doubt, but there is no good faith reading of Miller that can possibly lead to that conclusion. At no point did Miller even hint that there was no individual RKBA. (It could have been a two sentence opinion if that were the holding: "The second amendment applies to state militias. Miller isn't in a state militia, so the second amendment doesn't apply.") Miller held that the weapon had to be suitable for militia use, not that the individual asserting the RKBA had to be doing so as part of a militia.

Heller did not overrule Cruikshank or Presser, both of which held that the Second Amendment didn't bind the states. (Now, McDonald could overrule those decisions, but those decisions were both pre-incorporation in general, and thus both have been severely undermined by many years of incorporation precedent.)

# posted by

David Nieporent : 10:34 AM

"no good faith reading"

So the lower courts which held that Miller did not protect the personal ownership of firearms such as a handgun at home was not acting in "good faith," but in fact were "illiterate" and so forth.

Such passion. I'm quite game to those who argue that Miller did not require such a reading. But, the justices (particularly Scalia and Kennedy) repeatedly looked at the ruling in askance for a reason: in part, its focus on the militia reasonably led to a more restrictive interpretation.

The other two cases though are different. They are anti-incorporation rulings, not rulings that interpreted the 2A as such. Some language in them actually support the individual rights' view. Presser even suggests states cannot totally ban arms given the feds need to call up the people (with arms) for federal militia service.

The anti-incorporation rulings are defunct as to the 1A. Reliance on them alone in this context is curious really. They would in effect prove too much.

# posted by

Joe : 11:21 AM

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# posted by

Joe : 11:43 AM

Mr. Nieporent,

Heller did not overrule Miller. Anybody who says otherwise is either illiterate or dishonest.

I'll convey your opinion to Justice Stevens and the other dissenters in Heller. Although I think your argument is meritorious, my point was a) it's been interpreted to mean just that for years now (so there are apparently a lot of dishonest, illiterate judges out there; and b) Supreme Court precedent existed supporting the no individual right to bear arms. For instance:

The second amendment provides that "A regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. Construing this language according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia. This is precisely the manner in which the Supreme Court interpreted the second amendment in United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), the only Supreme Court case specifically addressing that amendment's scope. There the Court held that the right to keep and bear arms extends only to those arms which are necessary to maintain a well regulated militia.

In an attempt to avoid the Miller holding that the right to keep and bear arms exists only as it relates to protecting the public security, appellants argue that "[t]he fact that the right to keep and bear arms is joined with language expressing one of its purposes in no way permits a construction which limits or confines the exercise of that right." Reichert br. at 35. They offer no explanation for how they have arrived at this conclusion. Alternatively, they argue that handguns are military weapons. [footnote 8] Stengl's br. at 11-13. Our reading of Miller convinces us that it does not support either of these theories. As the Village correctly notes, appellants are essentially arguing that Miller was wrongly decided and should be overruled. Such arguments have no place before this court. Under the controlling authority of Miller we conclude that the right to keep and bear handguns is not guaranteed by the second amendment.

QUILICI V. VILLAGE OF MORTON GROVE, 695 F.2d 261 (7th Cir. 1982)

Sorry if I must be dishonest or illiterate by relying upon federal appellate court judges for that interpretation of Miller. As I said, I am not arguing whether Miller and/or Heller were correctly decided, just whether the cases created a long precedent (even only an assumption of precedent or incorrect precedent) that no individual right to bear arms exists. So at the risk of being illiterate or dishonest, I disagree with you. Miller implied the Second Amendment's overarching purpose was for militia/military regulation. This whole "it depends on the weapon" thing is a stilted reading, betrayed by years of subsequent interpretation, of what the basic premise in Miller was. Misread? potentially. But don't throw that kind of accusation around when the vast majority of interpretations of Miller thought it had knocked down IRKBA. Heller's majority says it didn't overrule Miller, but the Roberts Court has a habit of not saying it's overruling things when it is.

# posted by

nerpzillicus : 11:46 AM

Moreover, Miller:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

If an individual right to keep and bear weapons exists - independent of the weapon's usefulness for militia purposes, then the Court's holding that absent "any evidence tending to show that possession or use of [weapon]... has a reasonable relationship to the preservation or efficiency of a well regulated militia” is the test for Second Amendment protection is erroneous. If that is required for Second Amendment protection, then an individual right is subservient to it. If a State decides handguns are not necessary to its militia, then under Miller, a handgun ban would be proper – agree?

Now this gets back to the nunchucks case in the Second Circuit - if those weapons could not have been shown to have a reasonable relationship to the preservation or efficiency of a well regulated militia, then Miller would have held that a regulation banning them was constitutional - therefore, it isn't the weapon that makes the difference, it's the weapon's relationship to the militia. Under Miller, an individual does not have any right to bear arms unless that arm is related to the militia. You can call that an individual right till you are blue in the face, but I ain't buyin' it. There is no hint in Miller that the right to bear arms can be separated from regulation of the militia. And that is how everybody saw it for years:

Following Miller, “[i]t is clear that the Second Amendment guarantees a collective rather than an individual right.” United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); see also Thomas v. Members of City Council of Portland, 730 F.2d 41, 42 (1st Cir.1984) (same, citing Warin ); United States v. Johnson, 497 F.2d 548, 550 (4th Cir.1974) (cited with approval in Lewis, 445 U.S. at 65 n. 8, 100 S.Ct. at 921 n. 8) (same). Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.

Hickman v. Block, 81 F.3d 98 C.A.9 (Cal.),1996.

I don't think any honest reading of the 14th permits the conclusion in the Slaughterhouse cases. But whether or not that is the case, reliance upon that case has created precedent. Same with Miller, up until Heller.

# posted by

nerpzillicus : 11:46 AM

As far as Presser and Cruikshank, yes they were incorporation cases, but:
“We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States.”
Presser, at 264–265.

“The plaintiff in error was not a member of the organized volunteer militia of the State of Illinois, nor did he belong to the troops of the United States or to any organization under the militia law of the United States. On the contrary, the fact that he did not belong to the organized militia or the troops of the United States was an ingredient in the offence for which he was convicted and sentenced. The question is, therefore, had he a right as a citizen of the United States, in disobedience of the State law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State?If the plaintiff in error has any such privilege he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred.”
Presser., at 266.

(Ironically, Presser and Cruikshank are based on the Slaughterhouse cases, so we are back to the beginning anyway).

Now, I'll be the first to acknowledge that that is a far cry from spot on holding of the issue. But, the Court, before making it clear that the Second only applied to the feds, states its opinion that the State can regulate people from assembling as an extralegal militia for drills without violating the right of the people to keep and bear arms (most likely because it is the State that has the power to regulate militias). But depending on how far you think an individual right extends, the dicta in Presser certainly hints individual rights (if any exist) are subservient to State regulation, and some do not exist at all.

My point again, is that there was precedent out there, and it was well settled for quite a time, that the Second Amendment was a collective right. Scalia has no problem overturning that settled understanding, but refuses to eve look at a case no one seems willing to defend? Just doesn't seem consistent.

# posted by

nerpzillicus : 11:47 AM

"a provision that, until Heller, was interpreted to permit the arming of STATE militias"

Originalists can argue that those that limited the right in this fashion were wrong.

The correct interpretation would be that the people have a right to be armed. The 2A reaffirmed this pre-existing right (as the 1A did for others) in respect to the feds. The 14A applied it to the states, the Civil War showing the states too could not be trusted to protect the rights of the people without such an amendment in place.

There is evidence from the time of the framing of the 14A that people at that time understood personal gun ownership was a fundamental right, including from state prohibition. In particular, newly freed slaves needed guns to protect themselves.

A telling indicator is when CJ Taney in Dred Scot noted that blacks could not be citizens, since citizens have a right to keep arms.

---

as to the "collective right" issue, see here.

I don't see how "subservient to State regulation" language in Presser really tells us much one way or the other. Heller would not change the result in the case if some "militia movement" group wanted to drill in D.C.

# posted by

Joe : 12:02 PM

Joe-

I don't see how "subservient to State regulation" language in Presser really tells us much one way or the other. Heller would not change the result in the case if some "militia movement" group wanted to drill in D.C.

I would argue the logical conclusion would be that a State has the power to regulate its militia, and thus to determine what is necessary for its militia. What if the State determined its militia would only consist of men 18-35? Under Miller, a woman, or a 35+ man, could not show his or her possession of a gun related to the efficiency or preservation of the militia - if that's the only test. Those, those individuals would not have a right to bear a weapon, even a weapon used by the militia as I defined it, since the person is unable to claim his or her possession is related to militia use. That's how I read Miller (Miller had to do with State action).

Heller is weird, because the Second Amendment, without an individual right component, has no application in DC, since it is not a "free State" needing a militia. If the Second is only a collective right of the people of a State, then DC is not a jurisdiction it applies to, and I can think of no reason why the feds couldn't ban every kind of weapon.

# posted by

nerpzillicus : 12:15 PM

I don't think Presser really offers a conclusive determination for such a broad statement. It noted:

"But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state."

As with Miller, your reading is possible, but I don't think it is advisable to read too much into that one case given the narrow question it examined.

The 2A does have an individual rights component, and dicta in previous cases (see my link) can be interpreted to imply as much. Also, "free state" in this context is not only something like N.Y. or Alabama.

It is basic political theory, including city-states like Athens, in which an armed population is necessary for freedom. This would have application to D.C. and the federal territories, the latter held in Dred Scott v. Sandford to include a right to own a firearm as applied to citizens.

Basic English political theory, including as cited by Blackstone, held that citizens needed arms to protect their rights. This allowed regulation, and maybe (arguably) even only allowing rifles and the like (Breyer's dissent in Heller), but a total ban would surely be too much.

# posted by

Joe : 12:41 PM

Joe, with respect to this:

"It is basic political theory, including city-states like Athens, in which an armed population is necessary for freedom. This would have application to D.C. and the federal territories, the latter held in Dred Scott v. Sandford to include a right to own a firearm as applied to citizens."

might I suggest that C.J. Taney's message was, horrors, if African-Americans (whether slaves or freemen) were citizens, why then they would have a right to bear arms which, horrors, would mean they just might attack their white slavemasters, and we (whites) wouldn't want that to happen. This was a back door argument on Taney's part.

As for Athens, Joe, do you have any idea as to what constituted arms back there and then, especially those that might be borne openly or concealed under togas? (I assume Greek slaves did not wear togas.) (I accept that hemlock is deadly but doubt it would be classified as arms.) (And no Venus de Milo jokes, please.)

# posted by

Shag from Brookline : 1:26 PM

Joe -

I don't think Presser really offers a conclusive determination for such a broad statement. It noted:

"But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state."

I agree – and already admitted that Presser was a “far cry” from definitive. All I was saying was even when the real crux of the case was the Second Amendment did not apply to the states, the court still noted in passing it did not have a problem with the regulation. The “hint” was that the more important part of the amendment was militia regulation, not IRKBA. How far that goes is another question all together.

As with Miller, your reading is possible, but I don't think it is advisable to read too much into that one case given the narrow question it examined.

But, if you'll note my whole point here is not whether my proposed reading of Miller is correct or not, but that the courts, for 80 years, had no other precedent to go on. The conclusion that the Second was a collective right was rather well established from Miller, and never corrected by the Supremes. My point is that Scalia pooh-poohed revisiting the Slaughterhouse cases, because it is such well established law, but collective right theory of the Second Amendment was also quite well established, and he had no problem revising that. That's my issue. And of course the point of it is that the PorI clause is much, much more reasonable to implement “substantive due process” than the actual due process clause. For Scalia, who loves to bitch and moan about reading stuff into and out of the Constitution, to not take the opportunity to correct what is probably the most egregious striking out of Constitutional text, IMHO, suggests he has a motive for avoiding it other than letting settled law lay – considering what he did to 2A collective right theory.

The 2A does have an individual rights component, and dicta in previous cases (see my link) can be interpreted to imply as much.

I agree that the individual right component should be there, but I disagree that previous cases interpreted it that way. The link, which I have admittedly not had time to read all the way through, recognizes as much when it says :
Like the scholars, the lower federal courts are split on the issue, although their split is the opposite of the scholarly one: most federal courts which have stated a firm position have said that the Second Amendment is not an individual right. [FN13] The federal courts which follow the academic Standard Model *105 are in the minority, although the ranks of the minority have grown in recent years. [FN14] The courts on both sides, like the scholars, insist that they are following the Supreme Court.

So, sure, SOME courts found the individual right, but most didn't. And while many scholars thought there SHOULD be an individual rights component, few thought the law (at the time) recognized one.

# posted by

nerpzillicus : 2:24 PM

Also, "free state" in this context is not only something like N.Y. or Alabama.

here's where I'll completely disagree. The Amendment actually says a “ free State.” I would say that the capitalization represents the acknowledgment that the Amendment applied to “States”-proper, not just the concept of a polity. While there are limits to the Federal power under the Constitution, there is only two recognized governments – the general government and the States.

It is basic political theory, including city-states like Athens, in which an armed population is necessary for freedom. This would have application to D.C. and the federal territories, the latter held in Dred Scott v. Sandford to include a right to own a firearm as applied to citizens.

Basic English political theory, including as cited by Blackstone, held that citizens needed arms to protect their rights. This allowed regulation, and maybe (arguably) even only allowing rifles and the like (Breyer's dissent in Heller), but a total ban would surely be too much.

If there is an individual right, and it can be applied to the States, you are probably correct. My point, however, is, looking only at Presser and Miller, no limit is placed on the State to regulate the militia. If the State can choose to regulate the militia as I previously hypotheticalized (sp?), then you have to recognize an individual right to get to what you are claiming. Again, I have no problem with that after Heller – my point is pre-Heller, there was no reason to think one had ever been recognized, and, in contrast, plenty of reason to think the State's plenary authority over the regulation of its militia would trump whatever subservient individual right may have existed.

# posted by

nerpzillicus : 2:25 PM

the Roberts Court has a habit of not saying it's overruling things when it is

If I may be permitted a small edit: "the Roberts Court has a habit of saying it's not overruling things when it is".

# posted by

Mark Field : 3:31 PM

Shag, sure, Taney's horror that citizenship for blacks would supply them:

"full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went"

is the point. Blacks were some different class of people who couldn't be trusted with such rights.

A search of the Federalist will even get you a quote by Madison admitting once blacks were no longer slaves, they would be equal members of society, including having such rights.

As to arms in ancient times, no expert, but I'm not aware that small swords were outlawed, even after Caesar (admittedly of a different age) had problems oh some 2055 or so years ago.

# posted by

Joe : 4:03 PM

My understanding is that weapons were barred in both Athens and Rome except in cases of official need.

# posted by

Mark Field : 4:22 PM

nerpzillicus ...

I partially disagreed with the person who originally denounced your reading as nonsensical, so we aren't that far apart on some matters.

The link includes various cases where the RKBA is part of lists of individual rights. Lower federal courts rarely had to deal with non-felon cases or in a few cases "assault weapons" (Quicili v. Morton Grove, directly applicable in the current case is a rare exception in upholding a handgun ban; the NY nunchuck case is also not typical) so Heller was not as disruptive as one might think.

[it noted in a footnote that the lower court cases should not be assumed to be wrongly decided as to their facts]

True, dicta in various lower court cases (and maybe one SC case -- Lewis v. U.S.) went further. Since I think the matter is open to debate, I would not find any of this totally conclusive. But, it is not really the same thing as overruling Slaughterhouses, which firmly and conclusively by SC precedent limits the P/I clause.

I wouldn't really rely too much on capitalization. I would note that "state" is often used in the Constitution. "Free state" only there. And, again, it was recognized (not only by Taney) that people in the territories had the right to have a weapon too.

Also, no matter how much the state can regulate the "militia" as such, this does not mean it could totally ban ownership of arms.

The state, first, can "regulate" rights in general. Thus, freedom of speech does not mean libel is protected. Heller recognizes the right is understood to include regulation.

Second, regulating the "militia" as a whole does not mean the state can deprive people from having arms for self-defense. Some discussions of the 2A even note that arms have been regulated on a two-tier track: state militia and personal use.

Anyway, I think neither side can say as strongly as Scalia/Stevens did what pre-Heller case law firmly held as applied to lawful people having a handgun at home. The same could not be said about the Slaughterhouse Cases.

# posted by

Joe : 4:28 PM

# posted by

Joe : 4:37 PM

We don’t yet have the Court’s ruling in McDonald. It is not too late for Chief Justice Roberts, Justice Scalia and the other members of the Court to take the text and history of the Privileges or Immunities Clause seriously, and at least recognize in their opinion that the Clause was written to protect fundamental substantive right from infringements by the states. But it looked today very much like when the Chief Justice and Justice Scalia say they take constitutional text and history seriously, what they mean is that they take text and history seriously, unless it’s inconvenient to their judicial philosophy.

In order for the Court to resurrect the P&I Clause, they will need to establish its scope for the first time. Is it limited to fundamental right or anything five justices feel like creating? Can you get a majority to agree to the proper measure for a right protected under the P&I Clause?

The conservatives have no incentive to risk fracturing their five justice majority on the Second Amendment or to have an alternative majority create an expansive P&I guarantee exceeding fundamental rights when they can extend the Second Amendment to the states simply by using the current DPC precedent.

I would have preferred if the conservatives reversed the last of the really bad Reconstruction precedents, held that the P&I Clause extends the Bill of Rights to the states and expressly discarded the entire oxymoron of substantive due process, but I can see their desire not to take on mountains that they do not need to climb. The conservatives might have been willing to use the P&I route if there were no DPC precedent, but there is.

# posted by

Bart DePalma : 4:41 PM

Considering weapons/arms in ancient Greece under its then political circumstances with technological advances to the present day as advances in civilization/democracy take place, it seems that weapons/arms for defense and safety of citizens/persons just get deadlier and deadlier, suggesting that advances in civilization/democracy that should improve safety (police forces, etc) for citizens/persons will not reduce but will increase the need for citizens/persons to keep and bear arms. Perhaps Brett could come up with a Hoover-type slogan "A Chicken in Every Pot and a Converted Calico in Every Home" for his 3-4 million NRA members who also drink tea. Or is this a demonstration creative destructionism?

A reminder: The US under Bush/Cheney saw to it that the Iraqi constitution did not include a provision comparable to the Second Amendment. I wonder why, if the right to keep and bear arms is so fundamental a right?

# posted by

Shag from Brookline : 5:18 PM

Shag from Brookline said...

A reminder: The US under Bush/Cheney saw to it that the Iraqi constitution did not include a provision comparable to the Second Amendment. I wonder why, if the right to keep and bear arms is so fundamental a right?

The Second Amendment was the brainchild of revolutionaries who just finished using their arms to overthrow a government. Governments of all types tend to dislike this idea. They prefer their people disarmed, defenseless and docile.

This is perhaps the best argument for holding that the Second Amendment guarantees a fundamental right.

Perhaps the weakest contra argument is for you to be citing Dubya.

# posted by

Bart DePalma : 6:01 PM

BTW, a key component of the surge was arming local militias to defend their cities, towns and villages from al Qaeda. Our Founders would have approved.

# posted by

Bart DePalma : 6:28 PM

"Under this logic, why are you still complaining about Wickard? Since the vast majority of Americans approve of the national regulation of commerce, doesn't this make the post-1937 New Deal Court's decisions correct?"

Under my logic, Scalia wouldn't vote to overturn Wickard. My logic on this says nothing about whether I agree with Scalia. Which I frequently don't.

# posted by

Brett : 6:36 PM

The Founders were more keen on arming people AGAINST local militias, as I recall. :)

# posted by

PMS_CC : 7:04 PM

What do you mean by a "weapon?"

A knife is a weapon and would be used for household use. The same can be said about a club or whatever.

Not that it sounds logical for even citizens not to be able to have any weapons at their homes and farms.

Also, as to "official use," wouldn't adult male citizens have them just for that purpose?

Swords and spears, though my recollection is that weapons of any sort were banned in the Forum, the Senate, etc. They were not banned in homes.

By "official use" I meant they needed to have them (usually to display them) at that moment in time. For example, various public officials in Rome were entitled to armed guards, soldiers might march through the city, etc.

# posted by

Mark Field : 7:16 PM

"What's Brett afraid of? Books? Or is he shooting blanks?"

Nah, tracers. It's fun firing tracers full auto at dusk, kinda like you've got a laser rifle. But the hellfire trigger I use for that is kind of a kludge, I'd rather have select fire.

After all, the Calico is originally a machine gun, and a fine one.

# posted by

Brett : 9:32 PM

Swords and spears, though my recollection is that weapons of any sort were banned in the Forum, the Senate, etc. They were not banned in homes.

Of course, they were banned in general during some tyrants' reigns as a means of quelling the populace. The problem with looking to the past remains the same: given the dynamic nature of culture, "which Athens do we use as a model?"

# posted by

PMS_CC : 9:41 PM

I think the author is reading too much into Roberts' and Scalia's observations in oral argument. Granted they did not want to consider the privileges and immunities clause despite good historical arguments but how often have you seen either of them overturn a 140 year old judgment? Sure they are both ready to overturn more recent judgments but 140 year old one? You have got to admit its unlikely.

Secondly, both this and Jack's subsequent post claim that its the flexibility of the privileges & immunities clause that makes the conservatives reject it. But if you read the whole transcript, you would notice they considered that question and even came up with a standard which would potentially exclude such flexibility - the 'deeply rooted in American tradition' standard applied in Glucksberg and reiterated again in District Attorney's Office v. Osborne more recently by the Roberts court. That would not make it all that different from incorporation under Due Process and would still potentially exclude abortion and other unenumerated rights the Conservative wing does not like. So these charges do not hold much water as far as I can see.

# posted by

Satish : 11:27 PM

Wrapping up an earlier discussion, I had to pull out my copy of The Tempting of America to find the inkblot quote. It's essentially the argument he made at his confirmation hearing, but he references a different constitutional provision.

The judge who cannot make out the meaning of a provision is in exactly the same circumstance as a judge who has no Constitution to work with. There being nothing to work with, the judge should refrain from working. A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it. So it has been with the clause of the fourteenth amendment prohibiting any state from denying citizens the privileges and immunities of citizens of the United States. That clause has been a mystery since its adoption and in consequence has, quite properly, remained a dead letter. There are, of course, academics who bemoan this and urge the Court to revive privileges and immunities, apparently on the theory that every part of the Constitution must be used, even if that means judges are writing their own Constitution.

I confess that what baffles me is that even if the P/I clause is a mystery today (of course, it's not for those like Brett for whom the original understanding is as obvious as the back of a cereal box), could it really have been a mystery when the Slaughter-House cases were decided in 1873 -- only 5 years after the Fourteenth Amendment was ratified?

# posted by

Steve M : 12:39 AM

I'd like to point out that the lower courts, after the 14th's adoption, were actually starting to apply the Bill of Rights to the states, (For instance, striking down miscegenation laws.) before the Supreme court called a halt to that. So they must have some how managed to clean up that inkblot enough to discern some meaning underneath it.

To declare any part of the Constitution an inkblot, is to declare that the people who drafted it drafted an inkblot, the people who promoted it to the public promoted an inkblot, and the people who ratified it ratified an inkblot. It's considerably less arrogant to assume they thought those words had some kind of meaning, and inquire into what they thought it meant.

# posted by

Brett : 5:56 AM

At Volokh over the past several months there has been much by way of comments on the 14th Amendment's P/I Clause, many of them focusing upon John Bingham and somewhat on Jacob Howard with respect to their roles in getting the 14th Amendment through Congress. In an earlier comment on this thread, I made reference to Kurt Lash's recent article (Part II) on "The Origins of the Privileges and Immunities Clause" of the 14th Amendment that focuses upon "John Bingham's Epiphany." Lash's Part II is 83 pages long and is fairly dense in certain parts. I'm up to page 64 and will finish up this morning as time permits. What's clear so far is that it is difficult discerning Bingham's understanding of the P/I Clause through the course of deliberations in Congress.

Lash plans a Part III that will address the public understanding of the 14th Amendment's P/I Clause. Lash is a self described originalist of the public understanding variety. (He provides a brief but valuable description of originalism in his introduction, naming names, most of them familiar to us.) So we may have to wait a couple of months to find out from Lash what he believes was the public understanding at the time the 14th Amendment was ratified. So far it's not clear what direction Lash will be going in. So far, however, I am convinced from reading Part I and now finishing up on Part II that his historical review will be thorough and not hysterical in the manner of the mostly "law office history" approaches of some (perhaps many) in "the professoriate." (By the way, based upon Heller's opinion/dissents, the Justices are equally skilled in the "law office history" approach; and they get the last word unless overruled years later.)

So we can all guess at what the opinion/dissents in McDonald may look like in June. There will be much time thereafter to repent whatever direction SCOTUS goes in. And the quest for the Holy Grail of Constitutional Interpretation (+Construction?) will continue in the hope of restoring the lost Constitution. (Note: Sen. Byrd has a copy in his vest pocket.) America is in a "GUNS ARE US" mood so for self protection even those of us who believe in gun limits will have to lock and load. Is this a variation of M(utually)A(ssured)D(estruction)? Time to get the Calico converted.

# posted by

Shag from Brookline : 6:11 AM

I would be utterly shocked if the Supreme court were to extend Heller in such a fashion as to have any impact on widely adopted firearms regulations, of other than the most recent vintage. The most likely end result is that outlier jurisdictions such as Chicago will be forced to scale back their rather outrageous restrictions on gun ownership, to something more in line with what you'll find in neighboring jurisdictions where relative freedom to own guns easily coexists with low crime rates.

As well, you might see a few recent federal laws fall, or be modified, such as the Lautenberg amendment stripping 2nd amendment rights from anybody who'd ever been convicted of "domestic violence" misdemeanors. It was easy for the courts to give that law a pass back when the official line was that there wasn't any right to own guns. Now that the right being impacted is officially recognized as such, the legitimacy of taking it away for anything less than a felony, and especially reaching back to convictions prior to the law's enactment, will have to be readdressed.

But the ultimate impact of the decision will be limited by the fact that most jurisdictions don't impose very many restrictions on the right. If you live outside of a few large cities, your life will go on unchanged.

# posted by

Brett : 7:08 AM

Brett may believe this:

"But the ultimate impact of the decision will be limited by the fact that most jurisdictions don't impose very many restrictions on the right. If you live outside of a few large cities, your life will go on unchanged."

But the jurisdictions involved are municipalities, some or which are small, rural townships. Alas, the urban, highly populated, municipalities cannot readily police their borders to enforce what may be perfectly reasonable gun regulations. In addition to the issues a state would have to address with varying requirements of its municipalities on guns, there is the federal interstate aspect. Somehow there has to be some coordination between federal, state and municipal levels to provide protection from the dangers of proliferation of arms with the mobility available to guns owners. (There's that nasty Commerce Clause, of course, enforced by Wickard.)

# posted by

Shag from Brookline : 7:49 AM

Thanks Mark.

"the clause of the fourteenth amendment prohibiting any state from denying citizens the privileges and immunities of citizens of the United States"

The 14A speaks of "Privileges OR Immunities" ... not "and."

# posted by

Joe : 8:33 AM

Brett:

The next big issues which will affect areas outside the big cities are:

1) Whether government can deny the 2A to misdemeanants and adults with a non-criminal juvenile adjudication?

2) Whether government can deny the 2A to persons who are the restricted parties in a pro se temporary restraining order?

3) Whether the government must issue a permit to bear firearms in public either concealed or openly carried?

I plan to put this 14A decision to work almost immediately in my rural practice.

# posted by

Bart DePalma : 8:39 AM

I can envision our own Paladin:

"I plan to put this 14A decision to work almost immediately in my rural practice."

restoring his backpack emblazed with:

"HAVE GUN, WILL TRAVEL"

as well as business cards and advertising to enhance his career and the 2nd Amendment.

In his third big rural issue he refers to "firearms." Does that mean that swords, foils can be ruled out? Might not that discriminate against pirates?

And how about "my rural practice"? - as if our Paladin is a "country lawyer" like Boston's Joseph Welch of the Army-McCarthy hearings of yesteryear. Yes, the yahoo lawyers will be out there to notch their legal gun belts armed with Heller and McDonald. It's truly MAD - especially combined with a DUI practice.

# posted by

Shag from Brookline : 10:21 AM

I plan to put this 14A decision to work almost immediately in my rural practice.
# posted by Bart DePalma : 8:39 AM

Is it really a good idea to hand out guns to all the local drunks?

# posted by

Bartbuster : 11:11 AM

It is unfortunate for my clients that the DA will not offer response briefs with the same seriousness and depth as the posts offered by shag and bb.

# posted by

Bart DePalma : 12:03 PM

It is unfortunate for my clients that the DA will not offer response briefs with the same seriousness and depth as the posts offered by shag and bb.
# posted by Bart DePalma : 12:03 PM

As someone who still tries to claim that we found WMD in Iraq, you're not really in a position to judge depth and seriousness.

# posted by

Bartbuster : 12:11 PM

"to enforce what may be perfectly reasonable gun regulations."

Perfectly reasonable my eye. If you took Chicago's notion of "perfectly reasonable" firearms regulation, and applied it to speech, they'd be demanding that you wear a gag 24/7, and use sign language instead, because of the off chance you might suddenly decide to find a non-burning theater in which to yell "Fire!".

We have jurisdictions with gun control that verges on a total ban on any gun ownership, and we have jurisdictions which have essentially no regulation beyond that you can't use a gun to do anything that would be a crime if you weren't using a gun. The fact that the latter jurisdictions aren't subject to more crime than the former, (Quite the opposite.) destroys any claim that the regulations have a reasonable basis. They're merely expressions of animus toward gun ownership, devoid of any public benefit.

# posted by

Brett : 12:40 PM

This comment has been removed by the author.

# posted by

Brett : 12:40 PM

Brett would apparently combine the 1st Amendment's speech clause with the 2nd's individual right so that if you disagree with his speech then he would "talk" with his arms. It seems that carrying (either concealed, or, perhaps even more, open) to Brett may be a form of speech.

Now, I didn't say that Chicago's gun laws were "perfectly reasonable." Rather, I made reference to "what may be perfectly reasonable gun regulations" adopted by a highly populated urban municipality. Brett seems to be a no limitation yahoo. Maybe he has already order that Calico conversion kit. In fact, Brett might even look cute in Calico.

# posted by

Shag from Brookline : 1:38 PM

Is our Paladin suggesting with this:

"It is unfortunate for my clients that the DA will not offer response briefs with the same seriousness and depth as the posts offered by shag and bb."

that the DA doesn't also treat him as a joke?

# posted by

Shag from Brookline : 1:41 PM

Crime rates shouldn't be used to defend 2A rights. Either you have the 2A rights or you don't--regardless of the motivation for any regulation allowed by the Court or imposed by the States. Those fundamental rights (if they exist in an individual form) shouldn't be contingent upon crime rates--although the level of regulation may be.

The fact that areas that have particularly restrictive gun control also have higher crime rates than areas with less restrictive control doesn't mean that gun control doesn't offset crime. It means that restrictive gun control is sometimes put into place in response to high crime rates.

The whole discussion about crime rates is probably moot, though. The Freakonomics hypothesis that Roe v. Wade is responsible for the nationwide plummet in crime rates beginning around 1990 is fairly convincing, at least to me. Social programs that improve disadvantaged neighborhoods would probably be the best way to keep crime down.

My sense of things is that the most earnest supporters of gun rights are among the most vehement opponents of both the right to choose and using government funds to correct social inequality. Quite a pickle.

So, I'd advise sticking with the position that the Constitution means what it says, rather than bringing in other selling points, lest consistency in one's stance towards crime demand a change of viewpoint in other arenas.

# posted by

PMS_CC : 1:51 PM

Pat,

Strange when we find ourselves arguing for plain meaning in a venue like this, eh?

Keep in mind that many folks are entirely disinterested in reducing crime. These folks are, rather, concerned with punishing it, and would prefer to avoid conversations which question such fundamentals as "what is a crime" or "why is X an criminal act".

That said, good to see you here, still fighting the good fight.

# posted by

Robert Link : 2:49 PM

I finally finished reading Kurt Lash's Part II. I think he did a great job. To those with limited time to read the entire article, I suggest perusing the Table of Contents and reading at least the Introduction (pages 3-7) and the Conclusion (pages 81-83). As a tease, here's the 3rd paragraph from the end:

"This is not to say, however, that Bingham's view prevailed as the public understanding of the Fourteenth Amendment. As I explained in the initial section of this article, even if one determines the intention of the framers, this is not the same thing as determining the original public understanding of a constitutional text. The goal of contemporary originalism, goals which I share, seek the likely understanding of the public which considered and ratified the text. The views of those who debated and adopted the text are certainly relevant to this effort, as is the antebellum understanding of the terms which they employed. Still, determining the public meaning of Bingham's text requires more analysis than can be provided in this already substantial paper. Accordingly, this will be the focus of a third and final paper on the original understanding of the Privileges or Immunities Clause."

(Minor typos, etc, have been noted at pages 5, 7, 10, 40, 41, 54, 55, 56, 67 and 77.)

I am aware that Philip Hamburger has a contemporaneously published article on the P/I Clause of the 14th Amendment that time constraints may prevent me from reading. I have been so impressed over the years with Lash's articles on the 9th and 10th Amendments that he is the one guy for me to read if time is limited.

# posted by

Shag from Brookline : 3:38 PM

"Original public understanding" always struck me as indistinguishable from looking into a crowd and picking out your friends, even moreso than the usual journeys into legislative history. After all, we know for a fact that the Constitution and many of its amendments were written in broad and oftimes vague language in order to secure supermajority support. If the Constitution had attempted to specify every jot and detail, it likely would have met the same fate as the late and unlamented EU constitution.

Yet given a document, amendment or clause that was drafted to mean different things to different people, by design, there are scholars who believe we can settle upon a single "public understanding"? This strikes me as a hopeless exercise.

# posted by

Steve M : 3:47 PM

Steve, I don't basically disagree with you. But originalism is the major theory out there for constitutional interpretation, with the currently favored version being original public understanding. Take a took at Prof. Lash's relatively brief Introduction on originalism for a history. I took ConLaw back in the fall of 1952 and originalism was not in vogue; rather, ConLaw was all about the Commerce Clause. Ed Meese started off the current wave of originalism focusing upon intent. This version was fairly quickly exposed as not too valid, going next to original meaning, meandering to expectations, to the current public understanding by the ratifiers. Even Jack Balkin has become an originalist. I frequently refer (tongue in cheek) to the quest for the Holy Grail of Constitutional Interpretation, which some originalists seek to expand to address Construction when Interpretation won't work. I have come up with the Horseshoes Legal Theory of Constitutional Interpretation: close enough wins - 5-4!

# posted by

Shag from Brookline : 5:03 PM

"Rather, I made reference to "what may be perfectly reasonable gun regulations" adopted by a highly populated urban municipality."

You can posit these "perfectly reasonable gun regulations" all you want, but the reality is that it's Chicago that was arguing before the Supreme court. Not anybody reasonable.

# posted by

Brett : 5:39 PM

I guess Brett doesn't understand a hypothetical unless that word is used. I was addressing issues as between urban and rural that I thought should be considered at federal, state and municipal levels because of the mobility of gun owners and their guns, in response to this:

" If you live outside of a few large cities, your life will go on unchanged."

# posted by

Shag from Brookline : 5:51 PM

By the way, having taken the time to dust off Bork's book, I have to say that the section I quoted from above remains one of the most lucid defenses of originalism you'll find anywhere. No one has to agree with Bork, but you at least have to be able to come up with answers to his arguments!

One of my favorites is his response to the people (like myself) who like to say that originalism is rule by the dead hand; he says that our real problem isn't with rule by the dead hand, but with rule by living majorities! Of course Bork wrote his book before conservative judicial activism like Parents Involved was back in vogue, so it was easy for him to pretend that liberals are the only ones who have problems with majoritarianism.

# posted by

Steve M : 6:26 PM

Sure, I understand hypotheticals. Do you understand counterfactuals? The Heller court is unlikely to get anywhere even NEAR overturning reasonable firearms regulations. This is because hardly anybody OBJECTS to reasonable regulations, despite the way pro-gunners get painted as uncompromising extremists.

You want backstop regulations on urban target ranges? Maybe a requirement for the use of frangible ammo in buildings with thin walls? Penalties for discharge of a firearm in crowded areas without good cause? That's reasonable.

But that's not the sort of regulation you're talking about, is it?

# posted by

Brett : 6:56 PM

This comment has been removed by the author.

# posted by

Robert Link : 6:58 PM

This comment has been removed by the author.

# posted by

Joe : 7:04 PM

This comment has been removed by the author.

# posted by

Joe : 7:07 PM

The Heller court is unlikely to get anywhere even NEAR overturning reasonable firearms regulations. This is because hardly anybody OBJECTS to reasonable regulations, despite the way pro-gunners get painted as uncompromising extremists.

I think what you mean to say is "hardly anybody objects to the regulations that Brett considers reasonable."

# posted by

Steve M : 7:57 PM

(edited)

The breathlessness of this post would seem to indicate the writer is unacquainted with co-blogger, Professor Brian Tamanah's work showing that interpretational puffery is no predictor of judicial reality, that, instead, ideology remains the best element for forecasting results from the bench.

I reckon Justice Scalia is also probably less vocal about counter-majoritarianism now that the GOP no longer holds a majority.

# posted by

Robert Link : 8:07 PM

"I think what you mean to say is "hardly anybody objects to the regulations that Brett considers reasonable.""

We're talking about a CIVIL LIBERTY here. That means, at a minimum, that any regulation that aims to simply discourage gun ownership, or inconvenience it, is definitively "unreasonable". "Reasonable" regulations have to be crafted to be minimally, not maximally, intrusive. They have to be aimed at moderating real, not hypothetical, harms. They can't prohibit legitimate exercise on the theory that doing so will prevent abuses.

You can't, for instance, prohibit people from owning megaphones, on the theory that they might use them to commit assault by yelling into somebody's ear. You can't prohibit people from owning color copiers on the theory that they might use them to counterfeit. These are things which have legitimate uses related to a civil liberty, and are used almost exclusively for those purposes.

By similar reasoning, you can't, reasonably, prohibit ownership of firearms with legitimate uses, MOSTLY used for those uses, on the theory that they're somehow useful for assault or other criminal acts. You can't zone all gun stores out of a jurisdiction, any more than you could all book stores. You can't try to price people out of gun ownership by banning affordable guns, put up multiple hoops in the hope people will give up and go away.

Reasonable regulations? Name a few, and we'll analyze them on the above basis.

# posted by

Brett : 9:16 PM

Brett's concept of reasonable regulation would seem to mean that bearing arms, either open or concealed, just about any place could not be subject to regulation because the right to self defense/safety with arms is not limited to the home; that judges and lawyers in court rooms should be entitled to carry; in churches; in schools; in a police station; in congress; in the White House; at ballparks; restaurants; when visiting others in their homes; at work; in hospitals; wherever; all in support of self defense/safety of this civil right.

# posted by

Shag from Brookline : 10:32 PM

Brett, you made your definition of "reasonable" quite plain earlier when you explained that if a proposed regulation does not satisfy Brett's standards of empirical effectiveness then it is obviously motivated by pure animus and automatically unreasonable.

# posted by

Steve M : 10:41 PM

Take a look at today's (3/6/10) LATimes editorial "At the Starbucks saloon" on open carrying in certain rural CA gunlets (hamlets) and the dilemma of baristas with the Brady bunch stirring the pot. At first blush, this could be an SNL skit: "Padner, you put too much foam on my latte." But with guns, comedy can quickly turn to tragedy.

# posted by

Shag from Brookline : 5:54 AM

Yeah, and you guys have made your definition of "civil liberty" quite plain: When applied to any right YOU don't like, it means nothing. You'd prefer that, even if gun ownership is called a civil liberty, it continues to be given no protection.

Well, you've got 4 Supreme court justices on your side; That was the position of the Heller minority: That the 2nd amendment be called an "individual right", but that nobody ever be permitted to claim it.

The Supreme court eventually recognized that "separate but equal" was a sick joke, because the people who wanted separate were just lying about the equal part. The situation is not all that different when it comes to guns, and "reasonable regulation". When somebody starts raving about "reasonable" regulation of guns, you know they mean the regulation part, and ONLY the regulation part.

# posted by

Brett : 6:02 AM

So, again I say: Let's stop having this content free discussion of "reasonable" regulations. Propose some you think are reasonable, and we'll analyze them.

After all, I just proposed a few reasonable regulations. The defining characteristic of them being, they'd solve problems without getting in the way of people owning guns.

# posted by

Brett : 6:12 AM

Brett seems to be beyond even the "strict scrutiny" of gun totting yahoos, apparently extending Justice Black's "NO" on the 1st Amendment to the 2nd (even though the latter does not use "NO"). Justice Scalia may soon recognize that he may join CJ Taney in infamy if the yahoos have their way. (As a guess, I'd say that if Scalia was at SCOTUS in 1857, he most likely would have joined in Taney's opinion or perhaps written it himself or filed a concurrence going beyond Taney suggesting that application by states of Lord Mansfield's Somerset decision to sojourners was unconstitutional based on originalist principles.)

As to Brett's:

"You'd prefer that, even if gun ownership is called a civil liberty, it continues to be given no protection."

perhaps "reasonable" gun ownership might give some protection to potential innocent victims of "unreasonable" gun ownership. "Praise the Lord, and pass the ammunition ...."

# posted by

Shag from Brookline : 6:26 AM

Brett, where are these "reasonable" proposals of yours located?

"After all, I just proposed a few reasonable regulations. The defining characteristic of them being, they'd solve problems without getting in the way of people owning guns."

And what are the problems and how would they be solved - at the end of a barrel?

# posted by

Shag from Brookline : 6:34 AM

I'd say, given the way you don't want to provide an example of your "reasonable" regulation, you're making my point for me. You want to keep it on a hypothetical level, so you don't have to defend the claim that any given regulation actually IS reasonable.

But, logically, you can't defend "reasonable" regulation of anything, if you're going to refuse to analyze whether any particular regulation IS reasonable, or discuss the criteria for determining the same.

# posted by

Brett : 6:40 AM

"Brett, where are these "reasonable" proposals of yours located?"

"You want backstop regulations on urban target ranges? Maybe a requirement for the use of frangible ammo in buildings with thin walls? Penalties for discharge of a firearm in crowded areas without good cause? That's reasonable."

I could come up with more reasonable regulations. You wouldn't be interested, because they wouldn't reduce gun ownership, they'd just make it safer.

# posted by

Brett : 6:45 AM

It will be difficult coming up with "reasonable" regulations that could be applied universally. There may be different considerations for urban versus rural, or suburban. One size does not fit all, especially if federalism will apply if McDonald results in incorporation of the 2nd Amendment. There may be significant differences among the states and within a particular state.

Brett's approach is simplistic, perhaps simple-minded. Consider Lawrence Rosenthal's "Second Amendment Plumbing After Heller: Of Standards Of Scrutiny, Incorporation, Well-Regulated Militias, And Criminal Street Gangs" available via SSRN at:

http://ssrn.com/abstract=1245402

The article was published in "The Urban Lawyer," Vol.41, No. 1, Winter 2009 and runs 92 pages.

# posted by

Shag from Brookline : 7:59 AM

Shag:

The proposition that cities have special considerations which argue for disarming the law abiding is crypto racism. The underlying assumption is that white hunters can be trusted with guns, but not black inner city residents who are probably scary gang bangers.

If anything, the higher prevalence of crime in the cities makes possessing a firearm for defense of yourself and your neighbors far more necessary than in rural areas like my town where I can leave the door open without worrying.

As for your question - what can be solved at the end of a barrel? - my father had to use a .45 pistol to chase off gang bangers attempting a home invasion in the morning while we were all in our beds. That scene gets repeated several hundred thousand times a year.

# posted by

Bart DePalma : 8:54 AM

That scene gets repeated several hundred thousand times a year.
# posted by Bart DePalma : 8:54 AM

What a load of crap. Home invasion is extremely rare.

# posted by

Bartbuster : 9:13 AM

Our rural Paladin may not be a crypto racist but he has in effect branded himself as an out and out racist. I won't comment on his familial situation but perhaps the acorn didn't fall far from the tree, just like racism gets passed on generationally.

i doubt if our rural Paladin would take the time to read the Rosenthal article, let alone understand the complexities involved. But let me note that "The Urban Lawyer" is an ABA publication that addresses legal issues involved with urban communities. Situations vary from city to city. This is where federalism comes into play. One size does not fit all on "reasonable" gun control regulations.

While our Paladin may be fortunate with his unlocked door in rural Colorado, his mind in locked in with lock and load. Maybe his neighbors lock their doors.

# posted by

Shag from Brookline : 9:22 AM

Shag:

OK, name the legitimate and relevant non-racial considerations which make ownership and carry of firearms by the law abiding reasonable in the suburbs and rural America but not in the big city.

Good luck with the legitimate and relevant part.

# posted by

Bart DePalma : 9:32 AM

"ideology remains the best element for forecasting results from the bench"

In BT's recent book, he has a section arguing that ideology (as in lib/cons) in fact doesn't affect most cases. The Supreme Court is treated somewhat differently but deemed not to be as important given the paucity of cases. This is not to say it won't matter in close cases, but most cases are not.

As to Bork, reference to "inkblots" and the like makes it hard to take him seriously. He has also become more and more harsh in his rhetoric (talk of "tempting" and references to Sodom and Gemorrah doesn't help).

I'm sure he can be answered. I rather answer someone else personally. But, I did read once that when he was up for the SC, Stevens supported his nomination. I don't know how true that was or if he changed his mind by now.

# posted by

Joe : 10:15 AM

OK, name the legitimate and relevant non-racial considerations

Baghdad, so far you're the only one who seems to think that race is a consideration.

# posted by

Bartbuster : 10:16 AM

Per my last comment, e.g.:

"None of these judges denied that there are political aspects to judging, or that judges have subconscious biases, or that some judges some of the time consciously decide cases in a political fashion. Their argument is that this describes only a small proportion of the cases, and it is a serious error to suggest otherwise. The thrust of this article is that the judges were basically right."

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292459

His recent book covers the same ground. He does suggest there is a danger judging is becoming more political and that it is assumed to be:

"There are real reasons to be concerned about the corrosive impact of the increasingly pervasive assumption that judging is political, which is now widespread in the legal culture."

Again, again, ideology has some effect.

# posted by

Joe : 10:32 AM

BB:

so far you're the only one who seems to think that race is a consideration.

To whom do you think Shag's article is referring in its title phrase "Criminal Street Gangs?" They are nearly all African American and Latino.

# posted by

Bart DePalma : 10:57 AM

To whom do you think Shag's article is referring in its title phrase "Criminal Street Gangs?" They are nearly all African American and Latino.
# posted by Bart DePalma : 10:57 AM

The Outlaws who used to hang out at a bar near my house weren't African American or Latino.

Which brings us back to the fact that you're the only one bringing up race.

# posted by

Bartbuster : 11:09 AM

Yes, cities are different than rural areas, and not because of a diversity of skin colors, but rather the density of population. Cities--with their hurried lifestyles and rude people--are seen as target-rich environments for those who would do violence with a gun.

One would hope that everyone who is armed will be stable individuals, and (despite histrionics in partisan threads that would suggest otherwise) most people in the country are well-adjusted, stable individuals.

However, public perception is never based on facts (a lesson well learned by the GOP over the years and exemplified in the latest leaked RNC memo), so it only takes a few well-publicized examples to ruin things for the rest of us.

"Reasonable" regulations I'd like to see: licensing akin to a driver's license including a minimum age requirement and a live-fire safety test, registration of all weapons with one hell of a penalty for carrying an unregistered firearm, and mandatory disposal of a firearm after use in connection with a crime (in order to maintain a high buy-in cost for weapons preferred by criminals).

I'd love to see licensing and registration revenue pay for the added bureaucracy, so that any budgetary impact at the state level would be offset. Profits could either go to the general fund, or be used somewhere nifty like improving the social conditions of the economically punished. ("Disadvantaged" is too mild a term for some districts.)

What I don't see as reasonable--again, assuming an individual right to bear arms exists--is a restriction on the number of weapons one has, or the kinds of weapons one has (with the exception of vehicle-mounted weapons, explosives, etc. for which a state agency can't reasonably provide a live-fire safety test in a neighborhood firing range <--the etc. will be fun to determine, no doubt!)

# posted by

PMS_CC : 11:29 AM

PMS_CC said...

Cities--with their hurried lifestyles and rude people--are seen as target-rich environments for those who would do violence with a gun.

Suburbs and rural areas also have plenty of concentrations of people against which psychopaths can use guns. See Columbine H.S.

# posted by

Bart DePalma : 11:35 AM

Satish-

Granted they did not want to consider the privileges and immunities clause despite good historical arguments but how often have you seen either of them overturn a 140 year old judgment? Sure they are both ready to overturn more recent judgments but 140 year old one? You have got to admit its unlikely.

Considering Citizens United and Leegin Creative Leather Products v. PSK Inc (overturning 96-year old antitrust rule in 2007), age alone doesn't make precedent safe. Plus, one could reasonably argue Slaughterhouse has already been overturned via incorporation through substantive due process. So, the effect of the change may not actually be that earth-shattering, but the manner of incorporation would be cleaner and have a more solid textual basis.

# posted by

nerpzillicus : 11:56 AM

Joe-

I partially disagreed with the person who originally denounced your reading as nonsensical, so we aren't that far apart on some matters.

I agree.

The link includes various cases where the RKBA is part of lists of individual rights. Lower federal courts rarely had to deal with non-felon cases or in a few cases "assault weapons" (Quicili v. Morton Grove, directly applicable in the current case is a rare exception in upholding a handgun ban; the NY nunchuck case is also not typical) so Heller was not as disruptive as one might think.

I don't think Heller really is disruptive – most states protect gun rights fairly strongly, and the only problem tends to be urban areas where a majority of the citizens support the bans. Plus, Scalia allows regulation with the right, which basically makes Heller a common sense decision. Again, it's the hypocrisy that's the problem, not the actual decision. But the majority of courts that addressed State action pre-Heller did find no IRKBA.

To me, this is the key issue – the Second Amendment is unique among the bill of rights, in that it provides a specific subject in balancing the rights of the three parties to the Constitution – the feds, the states, and the people. No other Amendments – beside 10 (and arguably 3, but the states couldn't raise armies, so unless you call a militia man a soldier it would likely not get invoked, but no one ever looks at 3, anyway) – can be said to address powers vested in all three. So pre-incorporation, the federal constitution recognized it did not have the power to infringe on the right of a citizen to keep and bear. But the Amendment explicitly talks about the necessity of a well-regulated militia of a free State. Is there anything about the Amendment that limits the power of a State to regulate a person's right to keep and bear? So when one talks about an individual right, pre-Heller, is it a “right” not to be infringed by the feds, but completely regulatable by the States – see my hypo above of the 18-35 year old male militia. Most of the references in the cases in the link discuss the right vis-a-vis forfeit of the right through conviction, or when comparing whether one class of citizens are really citizens because they have the same rights. But, as a federal citizen, pre-incorporation, the feds could not infringe your right to have arms, does it follow your State could not? Pre-Heller, Illinois does not permit conceal and carry. Now, if your State permitted conceal and carry, could the feds infringe that – I would think not. However, is Illinois infringing your federal right when it prohibits conceal and carry to its citizens – not without a P/I clause or incorporation, right? This is what I am talking about when I would say there was, pre-Heller, a subservient or residual IRKBA, but only as far as State law allowed it. The feds could not interfere with that right (and the feds prohibition on interference only went so far as when the arm, under Miller, was related to militia use). So when fed courts talk about a IRKBA, do they mean a federal right the States cannot infringe, or just an individual right, inviolable by the feds, but fully defined by State regulation of the militia. Or are they just sloppy with their language?

# posted by

nerpzillicus : 11:56 AM

True, dicta in various lower court cases (and maybe one SC case -- Lewis v. U.S.) went further. Since I think the matter is open to debate, I would not find any of this totally conclusive. But, it is not really the same thing as overruling Slaughterhouses, which firmly and conclusively by SC precedent limits the P/I clause.

See above – I would assert, for the most part, Slaughterhouse has been rendered moot by substantive due process doctrine. As you say with Heller, I don't really think there would be much disruptive effect if Slaughterhouse were overturned.

I wouldn't really rely too much on capitalization. I would note that "state" is often used in the Constitution. "Free state" only there. And, again, it was recognized (not only by Taney) that people in the territories had the right to have a weapon too.

Be careful here – Taney's premise was that the people in the territories could have weapons, thus the feds couldn't ban slavery in the territories. By giving (certain) “citizens” rights, Taney could prevent the feds from taking slaves from slaveholders via due process. I don't know if you want to follow that logical chain, its been pretty beat up upon. Plus, subsequent law has reasserted federal plenary control over territories, so I don't know how strong Dred Scott still is. Moreover, an uncapitalized “state” is not present in the Constitution until the 12th Amendment, ratified 1803. So, capitalization is entirely consistent in the original and bill o' rights.

Also, there is the context of the Amendment, and its fundamental purpose. “Free” meant free from federal tyranny, the fear the States had by giving power to the feds to raise an army. So, I would challenge your assertion that “free” in that context meant a classical free populace vs. independent quasi-sovereign States. “free State” acknowledges the fear of a federal government running roughshod over State independence. And as I discussed, since the rest of the Bill of Rights clearly applied to only the feds, it makes sense to distinguish “free States” in the one Amendment protecting the State (except 10).

# posted by

nerpzillicus : 11:57 AM

Also, no matter how much the state can regulate the "militia" as such, this does not mean it could totally ban ownership of arms.

It hasn't been tried, but you mentioned a Quicili v. Morton Grove.

The state, first, can "regulate" rights in general. Thus, freedom of speech does not mean libel is protected. Heller recognizes the right is understood to include regulation.

There is an implied “regulate” when it comes to the first, even though the plain text is “no law.” However, libel is a private right of action, not a government action. I'm not sure if it proves your point.

Second, regulating the "militia" as a whole does not mean the state can deprive people from having arms for self-defense. Some discussions of the 2A even note that arms have been regulated on a two-tier track: state militia and personal use.

Obviously most states would not do such a thing. But if no IRKBA exists, what's really to stop them? (actually an excellent argument that somewhere in the Second there must be an independent RKBA). But pre-Heller, under Quicili, you don't think an entire ban could be affected? Also note, whether such a ban would've violated State constitution is separate from the Second.

Anyway, I think neither side can say as strongly as Scalia/Stevens did what pre-Heller case law firmly held as applied to lawful people having a handgun at home. The same could not be said about the Slaughterhouse Cases.

As I said above, Slaughterhouse's holding is an empty shell. But as far as definitively knowing what its holding is vs. all the 2d law out there – yeah, I agree Slaughterhouse answer is much more black and white. But I don't think what everyone adopted as the understanding of a federal IRKBA under the 2d (especially following Miller) was very blurry. The common thread seemed to be, in order to find IRKBA, Miller would have to be overturned. So while Miller's holding was not a clearly laid out as Slaughterhouse, the impression it left was, IMHO, equally deep (among courts, at least).

Some of this is a little rambling, I apologize.

# posted by

nerpzillicus : 11:57 AM

Suburbs and rural areas also have plenty of concentrations of people against which psychopaths can use guns. See Columbine H.S.
# posted by Bart DePalma : 11:35 AM

Bart, you are a friggin idiot. Try comparing the crime stats for Seattle and Wyoming. They have roughly the same populations, but Seattle has for more assaults and robberies.

# posted by

Bartbuster : 12:31 PM

bb:

Try comparing the crime stats for Seattle and Wyoming. They have roughly the same populations, but Seattle has for more assaults and robberies.

This is an argument that enforcing the right of the law abiding to keep and bear arms for their self defense is even more important in cities than it is in rural areas.

Next...

# posted by

Bart DePalma : 12:54 PM

This is an argument that enforcing the right of the law abiding to keep and bear arms for their self defense is even more important in cities than it is in rural areas.

Next...
# posted by Bart DePalma : 12:54 PM

On what fucking planet is that an argument for making sure more people have guns? All more guns will do is result in more people being killed.

# posted by

Bartbuster : 1:10 PM

to cover some stuff, nerp. ...

To me, this is the key issue – the Second Amendment is unique among the bill of rights, in that it provides a specific subject in balancing the rights of the three parties to the Constitution.

The First Amendment was also concerned in particular with the "Congress" not having certain powers (particularly establishment of religion) that states would have. Likewise, it references "the people" as well.

Anyway, amendments 1-8 was generally focused on federal power. The 14A applied them to the states, including personal ownership of weapons.

Taney's premise was that the people in the territories could have weapons

His premise was that "citizens" and "the people" have various privileges and immunities, keeping firearms one, and this was one proof that (the horror) blacks can't be citizens. After the 13/14A, in effect, the argument can be turned the other way.

As to plenary power over the territories, this doesn't mean deprivation of fundamental rights. Even the Insular Cases, involving unincorporated territories, said fundamental rights must be protected.

uncapitalized “state”

Art I., sec. 2 speaks of a "State Legislature." It later references any "State." The Declaration of Independence, btw, speaks of the "State of Great Britain."

[libel]

I'm not sure why the private action issue would change that. There is also criminal libel. Fine, though, obscenity -- a state crime -- isn't covered either.

But pre-Heller, under Quicili, you don't think an entire ban could be affected?

Well, under Presser, not if it would inhibit there being a resource for federal militia needs. And, as to the "second track," that is a common law right to self-defense not related to militia service, Quicili did not really address the question. The law did not ban all firearms.

The common thread seemed to be, in order to find IRKBA, Miller would have to be overturned.

Well, the Heller Five did not think so, and since only the 2A issue was covered, I'm not sure the four decided the question.

---

BTW, if walking insults are going to curse too, get away, please.

# posted by

Joe : 2:02 PM

bb:

On what fucking planet is that an argument for making sure more people have guns? All more guns will do is result in more people being killed.

Almost everyone out here owns one or more firearms and we have no violent crime at all.

Disarming the law abiding only encourages the armed predators who laugh at your gun prohibition laws the same way al Qaeda laughed at your law enforcement polices of the 1990s.

# posted by

Bart DePalma : 3:42 PM

Almost everyone out here owns one or more firearms and we have no violent crime at all.

# posted by Bart DePalma : 3:42 PM

That must explain why Afghanistan and Pakistan are so peaceful...

Baghdad, there are fewer violent crimes because you have lower population density. Take your guns to Denver and you see that the violent crime rates match those in Seattle.

# posted by

Bartbuster : 4:15 PM

At Law Technology News, Calvin H. Johnson has an interesting article titled "Guns, Virtuous History and Internet Searches" with a publication date of 3/8/10. Here's the closing paragraph:

"The Bill of Rights did not go so far as to restrict federal power over the state militias as Anti-Federalists wanted. But James Madison, the author of the Bill of Rights, was prepared to offer amendments he considered safe. In context, the Second Amendment is Madison's response to the Anti-Federalists' demand to preserve state power by preserving state militias. The Supreme Court has held the amendment protects individual rights. Still, the function is also to preserve state power, and that purpose is important enough in the original context that the Second Amendment cannot legitimately be applied against the states. Access to the original sources by digital searches helps us reach that result. "

The article exposes secondary sources used by gun-toting McDonalders attorneys with their "law office history" approach to originalism as opposed to original materials that, through the wonders of the Internet, have been digitalized and readily available to SCOTUS clerks and all of us. The Internet is giving the "digit" to "law office history" originalists.

# posted by

Shag from Brookline : 6:36 AM

For even more confusion on the P/I Clause of the 14th Amendment in McDonald, take a peek at Tony Mauro's post March 5, 2010 at The Blog of the Legal Times: "Message from Malta: Kmiec Comments on Chicago Gun Case" where Kmiec brings in Corfield as the foundation for the P/I Clause. Compare this to Kurt Lash's Part II noted in my earlier comments. In effect, Kmiec is pleading guilty to "law office history" originalism. The "Nights [sic] of Malta" must be keeping Kmiec awake.

# posted by

Shag from Brookline : 7:17 AM

I have a hunch that the reaction of Scalia to the P/I Clause of the 14th Amendment displayed at oral arguments in McDonald v. Chicago may result in perhaps reargument - rebriefings? - because of the reactions and critiques of originalists. In any event, there is nothing to stop the Justices from looking over their shoulders at such critiques and considering the need to address and perhaps respond to them. Surely the Scalia-5 will be haunted by the gun rights yahoos seeking unlimited rights by extending Heller with an extension to the states despite Scalia's limitations dicta in Heller. The Scalia-5 may in the process diminish principles of federalism with its eventual decision buying the farm in McDonald.

E-I-E-I-O! Or, OY VEY!

# posted by

Shag from Brookline : 8:21 AM

Shag from Brookline said...

At Law Technology News, Calvin H. Johnson has an interesting article titled "Guns, Virtuous History and Internet Searches" with a publication date of 3/8/10. Here's the closing paragraph:

"The Bill of Rights did not go so far as to restrict federal power over the state militias as Anti-Federalists wanted. But James Madison, the author of the Bill of Rights, was prepared to offer amendments he considered safe. In context, the Second Amendment is Madison's response to the Anti-Federalists' demand to preserve state power by preserving state militias. The Supreme Court has held the amendment protects individual rights. Still, the function is also to preserve state power, and that purpose is important enough in the original context that the Second Amendment cannot legitimately be applied against the states. Access to the original sources by digital searches helps us reach that result. "

Please. The Second Amendment indirectly preserves the state militias by directly guaranteeing the People's right to keep and bear arms against attempts by a potentially tyrannical federal government to disarm them. This hardly implies that the right should not be similarly guaranteed against attempts by a tyrannical state or local government to disarm the People.

# posted by

Bart DePalma : 8:50 AM

From our own Paladin's lips to Scalia's ear on how to decide McDonald! E-I-E-I-O! With respect to these rural gun toting yahoos, how about this song parody:

"HOW'YE GONNA KEEP 'EM DOWN ON THE FARM, AFTER THEY'VE SEEN HELLER?"

So let's keep an eye out in the cities for these yahoos.

# posted by

Shag from Brookline : 9:49 AM

The article exposes secondary sources used by gun-toting McDonalders attorneys with their "law office history" approach to originalism as opposed to original materials that, through the wonders of the Internet, have been digitalized and readily available to SCOTUS clerks and all of us. The Internet is giving the "digit" to "law office history" originalists.

1) The article actually manages to be self-refuting -- it talks about the need to look at original sources, but makes a claim about what the petitioners were saying without any link to any original source where they said what the article claims.

2) The author is rather confused, as he seems to not realize that the relevant question is what the authors of the 14th amendment meant in 1868, not what the framers meant in 1789.

3) There is no support for the author's claims about what those 79 hits were saying.

# posted by

David Nieporent : 10:10 AM

David, you misread the article.

By the way, do you challenge these statements in the article:

1. In the first paragraph: "Attorneys for Otis McDonald, seeking to overturn Chicago's ban on handguns, have argued that the Court should not use research based on digital researches and should rely solely on established secondary histories."

2. In the fifth paragraph: "History needs to be skeptical about the secondary literature. Historical writing can be like gossip, distorting the original message with each repetition. Prior works had inevitable biases they could not themselves see, but it once took too much effort to go behind their conclusions."

3. In the seventh paragraph: "Digital searches will also check on the lawyers. Advocates cherry-pick evidence.... The best remedy for biased evidence is more evidence and the best way to collect more of the original evidence is by digital search."

Advocates of "law office history" may bristle at this article. So be it. As I have stated in earlier comments about Kurt Lash, his Parts I and II are well beyond "law office history." Doubters might check on historians' research approach on original versus secondary sources. Should legal history be treated differently? And keep in mind that this is just a short article that just might entice better research to avoid charges of cherry-picking by advocates.

# posted by

Shag from Brookline : 11:06 AM

"This hardly implies that the right should not be similarly guaranteed against attempts by a tyrannical state or local government to disarm the People."

Indeed, they were scarcely less concerned that the states might neglect the militia system. But the federal Bill of Rights, prior to the 14th, was meant to deal with problems that might arise from the federal government, not the states. And the states already had guarantees of the RKBA in their own constitutions, which the 2nd amendment was modeled after.

Southern states were, of course, violating those rights, which is a great deal of what motivated the 14th amendment.

# posted by

Brett : 11:14 AM

But, if you'll note my whole point here is not whether my proposed reading of Miller is correct or not, but that the courts, for 80 years, had no other precedent to go on. The conclusion that the Second was a collective right was rather well established from Miller, and never corrected by the Supremes. My point is that Scalia pooh-poohed revisiting the Slaughterhouse cases, because it is such well established law, but collective right theory of the Second Amendment was also quite well established, and he had no problem revising that. That's my issue. And of course the point of it is that the PorI clause is much, much more reasonable to implement “substantive due process” than the actual due process clause. For Scalia, who loves to bitch and moan about reading stuff into and out of the Constitution, to not take the opportunity to correct what is probably the most egregious striking out of Constitutional text, IMHO, suggests he has a motive for avoiding it other than letting settled law lay – considering what he did to 2A collective right theory.

I agree that the lower courts decided to interpret Miller as upholding a collective right. The problem is that Miller doesn't say a darn thing about the RKBA being a "collective right." Not one word. Not even a tenth of a word. The fact that it mentions the militia is not even relevant. The militia -- as Miller itself points out -- was not a "collective." It's not limited to the organized militia. It's the entire body of adult citizenry. (Well, men, at the time. Would that limitation survive intermediate scrutiny today?)

The fact that Miller focuses on the type of weapon underscores this. If the RKBA weren't an individual right, then it wouldn't have mattered whether Miller were carrying a musket, handgun, sawed-off shotgun, rifle, or nuclear weapon; he wasn't doing so in service of the militia, and so he wouldn't be covered. But in fact the Court held that the type of weapon did matter.

# posted by

David Nieporent : 11:18 AM

here's where I'll completely disagree. The Amendment actually says a “ free State.” I would say that the capitalization represents the acknowledgment that the Amendment applied to “States”-proper, not just the concept of a polity. While there are limits to the Federal power under the Constitution, there is only two recognized governments – the general government and the States.

In the 18th century, nouns generally were capitalized. Read the whole constitution (or Declaration), and plenty of words are (to our eyes) randomly capitalized; that doesn't mean they're terms of art. It just means they're nouns.

# posted by

David Nieporent : 11:20 AM

"The fact that Miller focuses on the type of weapon underscores this."

Not necessarily. It easily can be a way to narrowly decide the question. The SC repeatedly narrowly decides questions.

"[The militia is] the entire body of adult citizenry."

No. The case underlines there was usually an age range, like 18-50 in one case. Putting aside other groups, such as felons or those physically or mentally unfit.

Also, saying it said not a whit on the "collective rights" view remains to me overblown. That view is that individual gun ownership is only secured to the degree it is necessary to preserve the militia. The militia focus of the opinion can be used for that.

I'm somewhat unsure if the two views don't run into each other anyway. The 2A assumes that the militia is "necessary" and as the opinion notes recognizes a fear of standing armies.

The way to address this weren't state police forces alone, but "civilians primarily, soldiers on occasion." [Miller] Totally disarming the population inhibits this, including total delegation of home security to the police.

The 'collective rights' view treats the gun owner as a cog in a machine, it is true, but total disarmament appears to me like deciding criminal justice doesn't need jurors. The Constitution already decides a "free State" requires that.

[A defendant can waive the right to a jury trial and a person can have a conscientious objection to owning firearms. But, this still doesn't remove both totally.]

I remain of the view that gun ownership is independently a liberty, so seventy year olds that aren't part of the militia can have them as well. Or, those who don't like militias will have to answer why home privacy doesn't include just having sex there but a means to protect from invasion.

# posted by

Joe : 12:11 PM

"Not necessarily. It easily can be a way to narrowly decide the question. The SC repeatedly narrowly decides questions."

Yes, and the easiest way to narrowly decide a question like this is to rule that somebody lacks standing. Which Miller would have, if the right were a "collective" one revolving around militia membership. They sent the case back for a determination of whether the weapon, itself, had any militia utility, not whether Millers possession of it did.

You must remember the context: This was after the "Switch in time"; The Supreme court was out of the business of overturning federal laws. There wasn't much question that the NFA was going to be upheld, the only question was how. The Court took the least destructive route to doing so: Remanding the case for a factual determination they knew wouldn't happen.

As I have often said, we are quite fortunate that Miller didn't show up at the Court, with competent representation; That he was going to lose was a given, actually being represented would have required his losing in a manner which would have established much more destructive precedent.

Of course, it almost didn't matter, because the Court spent 70 years refusing 2nd amendment cases, while the lower courts played a game of "Telephone" with the Miller, changing it by increments into the total repudiation of the 2nd amendment that the Court hadn't issued.

# posted by

Brett : 3:29 PM

More reading of tea leaves.

As to the New Deal stuff, the tax issue and regulating an object in interstate commerce was decided years before. Cites provided in opinion.

"whether the weapon, itself, had any militia utility, not whether Millers possession of it did"

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Since the case was narrowly decided with focus on the weapon, it did not have to focus on Miller. The case, however, discussed how the militia wasn't made up of everyone. That does leave an opening to the government to show someone is not a member. Or, that the "preservation or efficiency" of the militia is reliant on let's say a felon not having the weapon.

But, this factual issue didn't have to be decided. So, again, a narrow way of disposing of it. This doesn't suddenly mean Miller determined a state could not require firearm training or whatever. Again, it only decided a limited factual issue.

[I disagree somewhat on this point with the article cited. Again, since the weapon was held not to be protected, the "individual rights" claim was in effect not decided. OTOH, as the article notes, the 10A claim arguably was not properly argued, but the opinion dealt with it all the same. This just shows how we should not read too much into such things.]

"Remanding the case for a factual determination they knew wouldn't happen."

Miller was killed. But, his co-defendant, Frank Layton, survived the ruling. What happened is discussed in this interesting analysis (e.g., pre-Miller, a lower federal court noted gangsters didn't have a 2A right to their weapons, in part citing an earlier Supreme Court case noting a concealed weapon ban would not violate the 2A, albeit in dicta).

Layton pled guilty about six months after the ruling. I'm unsure how the SC "knew" he would do so instead of having a hearing to determine if the weapon was of militia grade. Or, that any number of other defendants would do just that. In fact some did, and lower courts had to decide the question.

As the article noted, Miller left open "reasonable regulations," and most federal courts dealt with them. Most of the cases involved felons or (fewer) regulation of certain types of firearms. As Miller noted, the right in question had a somewhat different scope in various states. The SC in the Palko v. CT era of incorporation allowed such flexibility.

Total bans of handguns and the like might be a step too far but the lower federal courts rarely decided such cases since state and federal law generally don't go that far. OTOH, some regulations that Brett would find "unreasonable" were upheld pursuant to Miller and other cases.

# posted by

Joe : 9:11 AM

""Have you no sense of decency, sir, at long last?"

Somebody needs to tell Luban that quote lost a lot of it's edge when the KGB archives were temporarily thrown open a few years back. But I suppose he still thinks the Rosenbergs were innocent, too.

# posted by

Brett : 5:59 AM

Brett seems to have been having "wet dreams" of Joe McCarthy and Roy Cohn as his heroes.

As usual, Brett quotes - and comments - out of context, ignoring the attacks on defense attorneys upholding a long tradition of the legal profession by the new McCarthyites with Liz serving as her father's dummy in lieu of George W. (Political incest?)

# posted by

Shag from Brookline : 6:53 AM

Yeah, I forgot, what you say never JUST means what you say, when it's liberals on the other end. There's this 20MB "include file" that gets tacked on, all the garbage you simply assume is true of anybody you don't like.

Meant what I said, and only what I said: That quote lost a lot of impact once we knew that the US government really WAS heavily infiltrated with communists. The whole "witch hunt" thing doesn't sting so much if you know witches really exist.

That's quite a different issue from whether it's a black mark against a lawyer that he does pro-bono work for alleged terrorists. I personally think it's, at worst, a dingy gray mark. After all, alleged terrorists need to be defended, or else the government can just accuse anybody it dislikes of being a terrorist, and down they go without being defended...

# posted by

Brett : 7:06 AM

When my then fellow Bostonian Joe Welch made that statement in the spring of 1954, I was finishing up law school. About the same time Brown v. Board of Education was decided (9-0). During the Army-McCarthy hearings what credible evidence was presented by the drunkard Sen. McCarthy of his charges? Was Roy Cohn a "shining" example of lawyerly conduct as counsel to McCarthy? (I cringe each time I picture Cohn whispering in McCarthy's ear.) It was a proud day for the legal profession when Welch made that statement.

Brett, keep in mind that Ike was President. He was not a liberal. It was Ike's administration that was under attack, prodded by Roy Cohn because of a "shine" he took to a protege. McCarthy did not produce credible evidence of his charges. The whole nation was able to witness McCarthy's sorry appearance. That quote, in context, had and still has clout. It could be a response to Republican politicians who rode the coattails of birthers and other racists from day one of Pres. Obama's administration.

Brett, your lame explanation suggests that perhaps you have no decency.

# posted by

Shag from Brookline : 7:37 AM

The post-oral argument phase of McDonald v. Chicago may be quiet for a while as each side takes deep breaths. Alas, there is no rest for the weary on originalism.

I recently downloaded and printed Jonathan Bressler's "The Right of Jury Nullification in Reconstruction-Era Originalism: The Fourteenth Amendment and the Constitutionalization of Judicial Precedent" (April 2009) available at:

http://nrs.harvard.edu/urn3:HUL.InstRepos:3335794

The Introduction starts with this:

"Only one right is guaranteed in both the body of the Constitution and the Bill of Rights, and only one was guaranteed in all twelve state constitution [sic] drafted before 1787: the right of trial by jury in criminal cases."

The author points out that originalism of the founding era indicates that jury nullification could be considered in criminal case as it "was the jury's right to decide upon questions of law, and thus to reject the law as given to it by the court, an idea most often identified today as the jury's right to nullify the law."

The author points out that that is not the law today. He focuses upon the 14th Amendment and its originalism as in effect undoing jury nullification of the founding era.

The article runs 87 pages and so far I have read its abstract and Introduction. Hopefully I can finish reading the article in the next few days and hopefully it may provide more insight on the public understanding of the 14th Amendment to compare with Prof. Lash's Part II focus on the P/I Clause.

# posted by

Shag from Brookline : 8:32 AM

shag:

McCarthy did not produce credible evidence of his charges. The whole nation was able to witness McCarthy's sorry appearance. That quote, in context, had and still has clout. It could be a response to Republican politicians who rode the coattails of birthers and other racists from day one of Pres. Obama's administration.

McCarthy's charges that the federal government was thoroughly infiltrated with communists and KGB agents may not be the analogy you are looking for to smear the critics of Mr. Obama. The Venona Papers and later reviews of opened KGB files proved McCarthy's general charge beyond any doubt, if not many of his individual accusations.

Neither party distinguished themselves during this time. The GOP made baseless charges against innocent people while the Dems covered up the most extensive set of treasons in American history and rallied around the traitors.

# posted by

Bart DePalma : 9:27 AM

The whole "witch hunt" thing doesn't sting so much if you know witches really exist.

# posted by Brett : 7:06 AM

Brett, whether or not witches existed does not excuse what McCarthy was doing. We know terrorists exist. Does that make it ok for someone McCarthy to smear you as a terrorist?

# posted by

Bartbuster : 9:31 AM

Perhaps our Paladin is verifying the disclosures in the Verona papers, even though much of their contents have been seriously questioned. What evidence did McCarthy present back then? And consider the background (Roy Cohn and his protege) for McCarthy's charges.

Now consider the birthers and other racists that have been on the attack since the beginning of Obama's administration. Where is their credible evidence?

Our Paladin shoots off his mouth as if it were a converted Calico with crap for ammo. Next he'll be "revisioning" Nixon and Agnew.

# posted by

Shag from Brookline : 10:10 AM

while the Dems covered up the most extensive set of treasons in American history and rallied around the traitors.
# posted by Bart DePalma : 9:27 AM

Baghdad, have you got any evidence to support this claim?

# posted by

Bartbuster : 10:21 AM

I would recommend that you read the following books before engaging in another discredited defense of these traitors:

Harvey Klehr, John Earl Haynes & Fridrikh Igorevich Firsov, The Secret World of American Communism (Yale University Press 1996).

John Earl Hayes & Harvey Klehr, Venona: Decoding Soviet Espionage In America (Yale University Press 2000).

Shag:

In the Venona Project, the United States and Great Britain successfully intercepted and decoded roughly 3000 of the top secret Soviet cables transmitted between Moscow and Washington, D.C. during WWII. The decoded cables were shocking to say the least. Soviet intelligence had established covert relationships with 349 Americans – many of them communists – in key positions throughout the FDR and Truman Administrations. Soviet agents included a personal aide to the President, a section head and 15-20 other members of the Office of Strategic Services (the predecessor to the CIA), the deputy to the Secretary of Treasury, Alger Hiss and several other members of the State Department, as well as Julius and Ethel Rosenberg, who provided the USSR with intelligence concerning the U.S. atomic weapons program. In what may have been the most extensive case of treason in American history, Soviet intelligence had compromised nearly every United States military and foreign service agency.

# posted by

Bart DePalma : 11:05 AM

This comment has been removed by the author.

# posted by

Bartbuster : 11:08 AM

I would recommend that you read the following books before engaging in another discredited defense of these traitors:

Baghdad, I'm not defending anyone. I simply asked you if you could support your claim that "Dems covered up the most extensive set of treasons in American history and rallied around the traitors." Well, can you?

# posted by

Bartbuster : 11:10 AM

Our Paladin engages in cherry-picking, which is not virgin territory for him, and he continues to shoot blanks. There have been many serious challenges to the Venona project documents. But why does our Paladin attempt to divert us from the menage a trois back in 1954 of McCarthy, Cohn and Shein in Army-McCarthy hearings? Our Paladin's herring smells like it came from his old backpack that I thought he had discarded. Maybe that old backpack is like the pumpkin hiding papers.

Our Paladin addresses not at all the traditional role of attorneys representing undesirable defendants with suggestions they are less than patriotic that Luban raised with his recent post. Perhaps the "alleged" drunks that our Paladin defends are not entitled to vigorous defenses because they maim and kill innocents. I understand our Paladin's motives: it's a living. But the attorneys that Cheneyites try to demonize do it de bono, in a long, noble tradition of the legal profession going back to John Adams.

Our Paladin's herring may be pickled like his DUI clients. I'm sure some are MADD at him. As for me, I don't get mad - I get even.

# posted by

Shag from Brookline : 11:35 AM

Bartbuster said...

BD: I would recommend that you read the following books before engaging in another discredited defense of these traitors:

Baghdad, I'm not defending anyone. I simply asked you if you could support your claim that "Dems covered up the most extensive set of treasons in American history and rallied around the traitors." Well, can you?

See the public statements of Truman andother prominent Dems denying the NKVD compromises of the FDR/Truman Administrations and the fact that he declined to fire and prosecute the 349 members of his administration identified in Venona.

Then see the nearly hysterical defense of the traitor Hiss and to a lesser extent the traitors Rosenberg.

# posted by

Bart DePalma : 12:04 PM

See the public statements of Truman andother prominent Dems denying the NKVD compromises of the FDR/Truman Administrations and the fact that he declined to fire and prosecute the 349 members of his administration identified in Venona.

Is it really a good idea to start a witch hunt based on the word of your enemy?

Then see the nearly hysterical defense of the traitor Hiss and to a lesser extent the traitors Rosenberg.
# posted by Bart DePalma : 12:04 PM

Baghdad, defending someone is not the same as conspiring to cover something up.

McCarthy, on the other hand, was clearly on a witch hunt.

# posted by

Bartbuster : 12:16 PM

bb:

BD: See the public statements of Truman andother prominent Dems denying the NKVD compromises of the FDR/Truman Administrations and the fact that he declined to fire and prosecute the 349 members of his administration identified in Venona.

Is it really a good idea to start a witch hunt based on the word of your enemy?

There is no better proof than intercepted and decoded secret communications from your enemy apart from maybe filming a meetings between the traitor and an NKVD agent.

# posted by

Bart DePalma : 12:20 PM

Our Paladin says:

"There is no better proof than intercepted and decoded secret communications from your enemy apart from maybe filming a meetings between the traitor and an NKVD agent."

What if the enemy knows of such interception and plants misleading information in such communications as bait, as a smoke screen? Isn't that a part of Spying 101?

But let's vary our Paladin's "better proof" rule:

"There is no better proof than our Paladin's* open communications beginning with Obama's inauguration to designate him as the enemy whatever he does not for purposes of truth but for political ends, even if detrimental to America's interests."

Of course, there is the matter of the parol evidence rule aspects to consider.

*Substitute: birthers, racists, neocons, etc.

Our Paladin continues to avoid the menage a trois connection. What credible evidence did this trio present back in the spring of 1954 in venturing into this witch hunt? Where were Joe the drunk's lists allegedly naming names?

# posted by

Shag from Brookline : 1:25 PM

Shag from Brookline said...

BD: "There is no better proof than intercepted and decoded secret communications from your enemy apart from maybe filming a meetings between the traitor and an NKVD agent."

What if the enemy knows of such interception and plants misleading information in such communications as bait, as a smoke screen? Isn't that a part of Spying 101?

There is no evidence in the KGB archives that KGB's predecessor - NKVD - had any idea they were being intercepted by Vernona, nevertheless that they were planting disinformation. Instead, the archives contain files on these Soviet agents and far more.

# posted by

Bart DePalma : 2:48 PM

There is no evidence in the KGB archives that KGB's predecessor - NKVD - had any idea they were being intercepted by Vernona, nevertheless that they were planting disinformation. Instead, the archives contain files on these Soviet agents and far more.
# posted by Bart DePalma : 2:48 PM

Do you think the KGB would have given us access to that info if we had asked real nice?

# posted by

Bartbuster : 3:11 PM

bb:

BD: There is no evidence in the KGB archives that KGB's predecessor - NKVD - had any idea they were being intercepted by Vernona, nevertheless that they were planting disinformation. Instead, the archives contain files on these Soviet agents and far more.

Do you think the KGB would have given us access to that info if we had asked real nice?

The KGB no longer exists. The new Russian government opened KGB archives to their own people to clear the record about the USSR, not for our consumption. It took years for western academics to gain access and write their books.

# posted by

Bart DePalma : 3:27 PM

The KGB no longer exists. The new Russian government opened KGB archives to their own people to clear the record about the USSR, not for our consumption. It took years for western academics to gain access and write their books.
# posted by Bart DePalma : 3:27 PM

Numbnuts, you have demanded that Truman should have held trials. Current access to the KGB books is of no use to Truman.

# posted by

Bartbuster : 3:42 PM

Bart:

Soviet intelligence had established covert relationships with 349 Americans – many of them communists – in key positions throughout the FDR and Truman Administrations.

Wikipedia:

Commenting on the list of 349 Americans identified by Venona that Haynes and Klehr published in an appendix to Venona: Decoding Soviet Espionage in America (see above), Navasky wrote: "The reader is left with the implication — unfair and unproven — that every name on the list was involved in espionage, and as a result, otherwise careful historians and mainstream journalists now routinely refer to Venona as proof that many hundreds of Americans were part of the red spy network."

But even if they were all perfectly guilty, the question remains: how does that justify a witch hunt?

# posted by

PMS_CC : 7:28 PM

A "witch hunt" means, conventionally, a hunt for something which doesn't actually exist, and which, therefore, can only find the innocent. Which, of course, was my point: The knowledge that our government actually WAS lousy with spies robs the whole McCarthy/witch hunt thing of it's power as a rhetorical tool

Except that leftists tend not to notice that, because they're less pissed at McCarthy because he was an incompetent spy hunter, than because he had the bad taste to hunt spies.

# posted by

Brett : 6:23 AM

Brett's back with his lame explanation. Joe McCarthy was a drunk with no evidence. He had no list, other than when he walked in his drunken stupor. I suppose that if 20 years from now there surfaces a pumpkin someplace with papers claiming that Saddam had WMD Brett will say, see that, Bush/Cheney were right to invade Iraq for that reason. Brett abused Luban's use of Joseph Welch's quote. Fortunately the point Luban was making with his post has received great support editorially and otherwise by both left/right members of the legal profession. Brett may point to Marc Thiessen's Op-Ed in today's (3/9/10) WaPo as supportive of the new McCarthyites; but keep in mind Thiessen's torture role during Bush/Cheney and his recent allegation that Roman Catholic teachings support the use of torture (which has been strongly challenged).

Brett, as he often does, has enabled our former Backpacker to continue with his red herring diatribe efforts to change the subject. We know our former Backpacker has no sense of decency, no shame. Et tu, Brett?

# posted by

Shag from Brookline : 7:38 AM

Except that leftists tend not to notice that, because they're less pissed at McCarthy because he was an incompetent spy hunter, than because he had the bad taste to hunt spies.
# posted by Brett : 6:23 AM

Brett, given your attempts to justify his actions, I'm beginning to wish he managed to get some cancer researchers black-balled.

# posted by

Bartbuster : 8:43 AM

PMS_CC said...

Wikipedia: Commenting on the list of 349 Americans identified by Venona that Haynes and Klehr published in an appendix to Venona: Decoding Soviet Espionage in America (see above), Navasky wrote: "The reader is left with the implication — unfair and unproven — that every name on the list was involved in espionage, and as a result, otherwise careful historians and mainstream journalists now routinely refer to Venona as proof that many hundreds of Americans were part of the red spy network."

Apart from using more passive terms in the second instance, what is the difference between being "involved in espionage" and being "part of the red spy network?"

# posted by

Bart DePalma : 8:58 AM

Shag from Brookline said...

Brett, as he often does, has enabled our former Backpacker to continue with his red herring diatribe efforts to change the subject. We know our former Backpacker has no sense of decency, no shame. Et tu, Brett?

My point was to note that your use of the favorite leftist bugaboo - McCarthy "witch hunts" - to discredit a Cheney's attack on the al Qaeda attorneys simply does not hunt because McCarthy's general charge that the government was widely infiltrated with communists acting as Soviet spies was correct.

Your distinction that McCarthy was wrong about a particular case does not help your analogy because then you would be arguing that Cheney was wrong about the al Qaeda 7, but there are in fact dozens of other attorneys in Justice working for al Qaeda.

The analogy simply does not work no matter how you twist it.

You might have more success comparing the al Qaeda 7 to Clarence Darrow

# posted by

Bart DePalma : 9:07 AM

Our former backpacker segues into a neo-McCarthyite with this:

" .... but there are in fact dozens of other attorneys in Justice working for al Qaeda."

Surely even with his limiting DUI legal expertise, our neo-McCarthyite understands that this is defamatory unless he can prove as "fact" such other attorneys are working both for the DOJ AND al Queda. Such dual employment most likely would constitute a crime. So our neo-McCarthyite engages in group libel, which I suggest can be actionable at the level of a dozen.

No, our neo-McCarthyite has no sense of decency, or of shame.

# posted by

Shag from Brookline : 9:28 AM

shag:

I was noting the implication of your McCarthy argument, not contending that there are in fact attorneys working for al Qaeda in Justice.

The only genuine concern here is not treason, but rather whether the al Qaeda 7 are implementing at Justice the policy changes they argued on behalf of al Qaeda.

# posted by

Bart DePalma : 10:03 AM

Baghdad, what happened to your attempt to show that "Dems covered up the most extensive set of treasons in American history and rallied around the traitors"?

# posted by

Bartbuster : 10:04 AM

Perhaps our former backpacker is playing the Roy Cohn legal beagle role with this:

"The only genuine concern here is not treason, but rather whether the al Qaeda 7 are implementing at Justice the policy changes they argued on behalf of al Qaeda."

I don't think our neo-Cohn has genuine concern about anything. His identity of "al Queda 7" is defamatory as well as his stating that "they argued on behalf of al Queda." These attorneys did not represent al Queda nor did they argue on behalf of al Queda; they represented individuals, trying to get justice for them, a time honored tradition of the legal profession.

And here's his response to my earlier comment on his defamatory group libel:

"I was noting the implication of your McCarthy argument, not contending that there are in fact attorneys working for al Qaeda in Justice."

But here's the language he used that had led to my comment:

" .... but there are in fact dozens of other attorneys in Justice working for al Qaeda."

Our neo-Cohn used the present tense. I wonder why he is backtracking. Shooting off his converted Calico mouth again. No sense of decency; no sense of shame. Maybe our neo-Cohn needs a protege.

# posted by

Shag from Brookline : 10:40 AM

"Privileges and immunities give you a lot more flexibility than due process, because it is not limited to procedural -where you don't have to deal with the hurdle that it's limited to procedural by the text."

I generally have a great deal of respect for Roberts, but what the hell is he talking about here?

Substantive due process IS oxymoronic, is pretty much a license for justices to invent rights that aren't explicitly in the Constitution (liberty of contract, abortion, etc.) and is a hideous violation of the plain text of the Constitution (it doesn't say the states can't deprive liberty (the way it's interpreted in SDP cases), just that they can't do it without due process of law.

Stating that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" simply results in the total incorporation of the Bill of Rights, including the 2nd Amendment, and, to my mind, doesn't create nearly the basis for judicial mischief that SDP does.

I suppose Roberts is afraid that judges and justices would think they have a free hand in deciding what constitutes the "privileges or immunities of citizens of the United States," but it's a lot easier to argue that those are limited to what's explicitly in the Constitution than it is to come up with limits to what falls under the rubric of liberty in SDP.

# posted by

Unknown : 11:10 AM

BDP: what is the difference between being "involved in espionage" and being "part of the red spy network?"

There is no difference. That's not the point being made--reread the bit I quoted and you should see it.

Brett:
The use of the term "witch hunts", by the way, does not imply necessarily that there are no witches. The purpose of the witch hunt in societies that still practice such things is to examine everyone's life closely in order to find the aberrant souls in society: those people whose character is deformed enough from the norm to be considered "nightmare witches."

Accusations are flung about wildly, especially towards one's enemies, in the hope that enough bad things can be found to warrant their eradication. Every accusation is investigated, and people do their best to avoid being the subject of such inquiries. In societies concerned with such things, a death sentence is common, with exile being a secondary option.

One effect of such witch hunts is to make individuals conform very closely to a set of norms held to be proper by the majority of the people. Another effect is to advance the personal goals of (and improve the station of) the person or people who called for the witch hunt in the first place.

I don't see a problem with the analogy at all. Whether witches are real or not doesn't matter as long as you find an appropriate victim to fill the role of the witch. It may matter in terms of some sense of justice, but witch hunts aren't really about justice, they're about shaking up the social order.

# posted by

PMS_CC : 12:26 PM

SDP has been understood to be covered by due process since before the Civil War with some use by antislavery forces in particular. Various justices repeatedly provide citations like:

Magna Carta was "intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice" (Bank of Columbia v. Okely, 17 US 235 [1819])

Arbitrary legislation or legislation that violates various basic principles of freedom was deemed since the days of Coke to not follow "due process of law."

"Oxymoron" is but a tired attack that fails to respond to a reasonable dispute.

# posted by

Joe : 10:09 PM

SDP has been understood to be covered by due process since before the Civil War with some use by antislavery forces in particular. Various justices repeatedly provide citations like:

Magna Carta was "intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice" (Bank of Columbia v. Okely, 17 US 235 [1819])

Neither the general sentiment of the quote you cite nor the specific case in any way supports your point. That the Magna Carta may have protected substantive rights does not mean that the due process clause of the U.S. Constitution does. And the case itself is a procedural case, not an SDP case; it's about trial by jury.

# posted by

David Nieporent : 3:45 AM

I note with interest David's response to Joe's comment:

"And the case itself is a procedural case, not an SDP case; it's about trial by jury."

as a reminder to follow up my earlier comment on Jonathan Bressler's "The Right of Jury Nullification in Reconstruction-Era Originalism: The Fourteenth Amendment and the Constitutionalization of Judicial Precedent" (but without intending to get caught up in their discussion). I finished the article yesterday and it was a good read.

The article focuses on jury nullification in criminal cases (although limited reference is made to civil cases), pointing out that 1791 originalism of Article III and the 6th Amendment of the Constitution support the concept of jury nullification in criminal cases. The author takes the position that the Supreme Court should look to Reconstruction-Era Originalism as in effect a change by super-majority such that jury nullification in criminal cases is no longer supportable as a right. The author provides extensive historical support for his conclusion.

With originalism so important to the current Supreme Court, query whether the Court would today support jury nullification in criminal cases? There is the SCOTUS decision in Sparf (Justice Harlan) 156 U.S. 51, 71-86 (1895) holding there was no right to jury nullification in criminal cases. Here's a quote from the article (page 8):

"Ever since the first Justice Harlan's late-nineteenth-century opinion for the Supreme Court in Sparf v. United States held that 'it is the duty of juries in criminal cases to take the law from the court and apply that law to the fact,' the law of the land has been that though juries may have the unauthorized power to nullify, they have have no legal or moral right to do so, and courts have the authority to prevent it."

But there have been subsequent cases before the Court on jury related issues (punishment, etc) that might suggest the current Court (especially Justice Scalia) might rely upon 1791 originalism as support for jury nullification. Recently, some federal judges have revisited jury nullification, noted at page 15 of the article:

"In 2008, accepting Judge Middlebrooks's invitation and revisiting Judge Lynch's issue, Judge Weinstein of the Eastern District of New York took the ultimate step when he deemed Sparf no longer good law in light of of the Supreme Court's originalist jurisprudence."

This is just a tease on Judge Weinstein's view which he backed up in a 150 page opinion in United States v. Polizzi, 549 F. Supp 2d 308 (E.D.N.Y. 2008). (I have not as yet checked out whether that case was appealed.)

So perhaps shortly following the fallout of Heller and McDonald, the Supreme Court with resulting shoot-outs may address jury nullification, e.g., where a rural jury finds a shooter not guilty of homicide at a Starbucks despite overwhelming evidence of guilt. What will it be: 1791 originalism or Reconstruction-Era originalism?

# posted by

Shag from Brookline : 4:59 AM

This is just a tease on Judge Weinstein's view which he backed up in a 150 page opinion in United States v. Polizzi, 549 F. Supp 2d 308 (E.D.N.Y. 2008). (I have not as yet checked out whether that case was appealed.)

Of course it was appealed; it was Weinstein, the guy who wishes he was Reinhardt. Appealed and reversed. United States v. Polouizzi, 2009 WL 1098796 (2d Cir. April 24, 2009). Even if Weinstein's general views were correct, he doesn't get to overrule binding precedent like Sparf just because he thinks the Court would take a different approach now, based on a different line of cases. Only the Court can overrule its own precedents, and it hasn't overruled Sparf. (There's also binding Second Circuit precedent on point.)

# posted by

David Nieporent : 5:25 AM

David, thanks for your response. Before reading it, I did Google "Judge Weinstein + Jury Nullification" that brought up a lot of hits, including a recent post at Volokh on the retrial of the case. Also included with the Google hits were several related to guns. So yes, Sparf rules until the matter comes before the Supreme Court again. At age 79, I'm not going to hold my breath on what the current Court with its originalist bent will choose: 1791 originalism or Reconstruction-Era originalism on jury nullification in criminal cases. I should point out that Justice Harlan's decision in Sparf did not focus on Reconstruction-Era originalism in support of his decision. (Bressler's article includes commentary on Justice Harlan's dissent in Plessy that Brown v. Board of Education in effect adopted, with some suggesting in contrast that Justice Harlan's Sparf decision might be overturned by the current Court.) Meantime, I'll have my hot coffee at home, without hot lead.

David, was your Reinhardt reference to "Harvard Blues" written by the late George Frazier (whom we in the Boston area long enjoyed) and sung by Jimmy Rushing with the Count Basie orchestra?

# posted by

Shag from Brookline : 5:50 AM

This comment has been removed by the author.

# posted by

Shag from Brookline : 5:50 AM

"The use of the term "witch hunts", by the way, does not imply necessarily that there are no witches. The purpose of the witch hunt in societies that still practice such things is to examine everyone's life closely in order to find the aberrant souls in society: those people whose character is deformed enough from the norm to be considered "nightmare witches.""

PMS, you've made my point: Witch hunts, in societies which believe in witches, don't have a bad reputation. The bad reputation of witch hunts in OUR society is a function of our not believing witches exist, so understanding that they can only catch innocent people.

Since Soviet spies existed aplenty, the witch hunt accusation carries no sting: It's a bad analogy to what McCarthy was doing, because the spies he was supposedly hunting were real.

Now, that's not to say that you can't accuse McCarthy of being a BAD spy hunter. But I wasn't claiming that McCarthy was covered in glory, (Quite the contrary, his conduct helped to discredit the needed spy hunting that was going on!) just that liberals needed to find a different analogy than witch hunts to use to describe hunting spies who really existed.

I really do think the reason you guys don't understand that it's a bad analogy, is because on some level you figure hunting Soviet spies, like a witch hunt, could only hurt innocent people, because being a spy was 'innocent' behavior.

# posted by

Brett : 6:39 AM

Brett continues to dig a deeper hole with lame, lamer and lamest explanations. Brett has morphed into our intrepid former backpacker. Brett tries to dissociate from Joe McCarthy starting with this:

"Now, that's not to say that you can't accuse McCarthy of being a BAD spy hunter."

But was McCarthy really, really hunting for spies or to accommodate a menage a trois with Roy Cohn and the latter's Shein on Harvest Moon? What was McCarthy's real beef with the Army, beefcake?

Luban updates his critique with another post that points out the misdirections of the ilk of Brett and his hipped Paladin. Joe McCarthy was on a witch hunt. Joe McCarthy was a Republican. He was supported by conservatives at the time even though Joe the Drunk had no credible evidence. His list was a red herring to cover up the menage a trois. Innocent people were hurt. Consider Fred Fisher, the young attorney in Welch's firm assisting Welch and McCarthy's attack on Fisher that resulted in Welch's statement Luban quoted. There were other innocents as well. Brett seems to be of the view that it's okay to throw out accusations without evidence because the evidence may surface at some point in the future. That's not very lawyerly. No sense of decency; no shame. So I repeat: Et tu, Brett?

# posted by

Shag from Brookline : 7:11 AM

Getting back to the central theme of this post, the How Appealing Blog provides links to:

1. A Slate "Gun Points" article 3/8/10 by Saul Cornell, Justin Florence, and Matthew Shors, with the subtitle "History reveals a long-standing local authority to regulate guns. Shouldn't that matter?"

2. A Washington Examiner OpEd by Josh Blackman and Ilya Shapiro dated 3/8/10 titled "Is Justice Scalia abandoning originalism?" that closes with this: "The Court has nearly four months before it issues its McDonald opinion. We can only hope that the straying Saint Originalism returns to the catechism he has taught so well."

If, according to Dickins, at times "the law is a ass," how about originalism as it evolves in the living present?

# posted by

Shag from Brookline : 7:44 AM

I really do think the reason you guys don't understand that it's a bad analogy, is because on some level you figure hunting Soviet spies, like a witch hunt, could only hurt innocent people, because being a spy was 'innocent' behavior.
# posted by Brett : 6:39 AM

Brett, I'm not mad at him for going after spies, I'm mad he didn't go after cancer researchers.

# posted by

Bartbuster : 8:55 AM

PMS, you've made my point: Witch hunts, in societies which believe in witches, don't have a bad reputation. The bad reputation of witch hunts in OUR society is a function of our not believing witches exist, so understanding that they can only catch innocent people.

Yes, you're absolutely right except for the fact that NOBODY believes in witches. I'm not defending the Rosenbergs vs. McCarthy, only the right for someone to say that McCarthyism was less about finding actual witches than to shake up the social order using witches as an excuse. Do you honestly think that blacklisting Hollywood was an honest attempt to remove Soviet spies from the government?

We can flap Venona around all we like as proof that there were witches--349 of them, if you count every person who was given a codename regardless of their actual level of participation. How many people were accused by McCarthy and his supporters of being witches? How often were such accusations made in the forms of lists that had nothing to do with data gained in the Venona project?

Yes, certainly, the analogy is bad if there actually were spies infiltrating the government via Hollywood or the unions or any other convenient liberal target. One can probably spray bullets into a crowd in a big city and kill a murderer, too, but that still doesn't excuse the means by which justice was brought.

on some level you figure hunting Soviet spies, like a witch hunt, could only hurt innocent people, because being a spy was 'innocent' behavior.

Supporters of McCarthy act like we should give McCarthy a posthumous medal for being correct all along, but they seem to forget that thousands of lives were ruined by baseless accusations of communism, in a country where an interest in "communism" itself shouldn't be a crime at all. So, yes, in a sense you're correct, as long as you allow for those of us who don't forgive espionage and treason--the latter to include those giving secrets to the Soviets as well as those who deliberately destroy the careers of their fellow Americans in the pursuit of political goals.

# posted by

PMS_CC : 10:32 AM

Neither the general sentiment of the quote you cite nor the specific case in any way supports your point. That the Magna Carta may have protected substantive rights does not mean that the due process clause of the U.S. Constitution does. And the case itself is a procedural case, not an SDP case; it's about trial by jury.

The reference to the Magna Charta in this context is to the "law of the land" clause, the source of "due process of law," which over time was understood to include again broad arbitrary governmental action, including violations of certain substantive liberties.

[See, e.g., John Orth's book on the subject and the discussion here.]

Countless cases has followed this principle, including in antebellum times, the one I cited was just an early U.S. Supreme Court example.

The fact that the case was specifically about a procedural matter doesn't change that. The quote goes beyond that limited context.

Yet again you use hyperbole ("in any way" and so forth) to convince only the convinced.

# posted by

Joe : 12:18 PM

Shag, the Slate piece is curious.

Sure it "should matter" -- but many regulations are upheld, in part reflecting history. OTOH, traditional regulations of miscegenation was not determinative nor traditional regulations of seditious speech against Wobbles.

# posted by

Joe : 12:22 PM

As to the Bank of Columbia case, there is actually a hint of breadth:

"It could not have been to protect the citizen from his own acts, for it would then have operated as a restraint upon his rights; it must have been against the acts of others."

The author in Fletcher v. Peck cited his understanding of broad principles of justice that the state could not violate, going beyond the Contract Clause.

Again, an early hint that "due process of law" included legislation that did not have certain substantive reach deemed unjust, like (even w/o the Takings Clause) taking property from A to give to B for a merely private purpose. To cite a popular example.

# posted by

Joe : 12:30 PM

Joe says:

"OTOH, traditional regulations of miscegenation was not determinative nor traditional regulations of seditious speech against Wobbles."

Progress matters. Originalism may be headed for yet more variations. I just finished reading Louis Michael Seidman's March 2010 "Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism." It is available via SSRN at:

http://ssrn.com/abstract=1567512

Seidman states upfront that he is not an originalist. He examines with critical care the views of Randy Barnett and Kurt Lash (both originalists, perhaps of differing versions) on the 9th Amendment. SCOTUS may invoke the 9th Amendment in years to come in evaluating the constitutionality of legislation but may find it difficult applying originalist principles to the 9th Amendment. The article is a good, fast read, running 40 pages double spaced.

# posted by

Shag from Brookline : 7:18 AM

Interesting article, though FN 96 suggests at least one typo.

His approach convinces me more than the likes of Kurt Lash and the P/I.

I have read Saul Cornell's book on the well regulated militia and found it much more promising than that article which doesn't work on scrutiny.

# posted by

Joe : 5:31 PM

Joe, Kurt Lash has recent posts at PrawfsBlawg on his Part II on the P/I Clause of the 14th Amendment. Also, he has some recent comments on another's post at that Blog where he responds to a comment of mine on Seidman. I have deep respect for Lash as a historian. I eagerly await his Part III on the public understanding of the P/I Clause of the 14th Amendment, which is two months down the road.

By the way, continuing on originalism, Peter J. Smith and Robert W. Tuttle have an interesting article available via SSRN at:

http://ssrn.com/abstract=1561933

titled "Biblical Literalism and Constitutional Originalism" published a short time ago. The comparisons and distinctions are most interesting. (The words "literalist" and literalism" are used quite extensively, and I had to remind my brain from time to time to prevent reading them as "liberalist" and "liberalism.") It brought back memories of Hans Georg Gadamer's "Truth and Method" that I studied several years ago in a Hermeneutics class that I audited. Smith and Tuttle are obviously originalists and perhaps seek to defend originalism from non-originalists' attacks upon "literalists" who support originalism.

I am close to finishing reading Jamal Greene, et al's "Profiling Originalism" available via SSRN at:

http://ssrn.com/abstract=1567702

The abstract includes the following: "This article presents the first empirical study of public attitudes towards originalism." It includes a lot of tables with interesting information. It's tough enough understanding originalism when discussed by the legal experts. As for the public, the article explores originalism not only legally but politically and culturally. Hopefully, this article may trigger further empirical studies. It seems that public (as distinguished from scholarly) "literalists" support originalism. I'll have a better idea when I finish this article.

# posted by

Shag from Brookline : 7:06 AM

I have read some of his stuff over at that blog and looked over at least one of the articles he cited.

Reams of debatable (if interesting and I reckon respectable) verbiage (see, e.g., Seidman) for something that push comes to shove is of limited constitutional importance. I'll say this even assuming the guy is a good historian.

Maybe somewhat related, perhaps just because I read it recently, see also here.

# posted by

Joe : 3:40 PM