Balkinization: What if we had honest "leaders"? Reflections on Aurora

Comments:

You want an honest reaction? Sorry, wouldn't be printable.

Here's a toned down reaction: For longer than I've been living, and I'm no spring chicken, the 2nd amendment has been under assault in this country. Sometimes honestly, sometimes covertly, but under assault.

There's a presumption of good faith, but that presumption is rebuttable, and in the case of gun controllers stands rebutted. The phrase "reasonable gun control" deserves the same contempt "separate but equal" receives, and for the same reason.

A generation hence, when the leaders of that assault are gone, I, or rather my son, who will (hopefully!) have grown up post-assault, may chose to return to this subject. Today, should the usual suspects start harping on it?

No. The whole subject is poisonous, and deservedly so.

# posted by

Brett : 9:48 PM

Actually, 14 million Americans have died painful, pointless, premature, and completely preventable deaths from the most successful consumer product ever sold. Almost every day of that time, the vendor was engineering it for addiction. The business plan of the industry is to get 12 year olds addicted to slow poison. You can't argue it's consumer misuse: all of this results from using the product exactly as intended. And it's all perfectly legal, thanks mostly to the vendor's power and influence in the Congress. The product's mortality and morbidity make alcohol look like a piker. Then again, this product's toll makes pretty much everything look like a piker.

If you're going to compare tragedies, that comes to mind.

However in my experience "my tragedy is greater than your tragedy" doesn't work well.

# posted by

jpk : 10:09 PM

"There's a presumption of good faith, but that presumption is rebuttable, and in the case of gun controllers stands rebutted."

So anyone who might suggest what you determine to be gun control, even people who may have just come up with the idea recently, should be presumed to be in bad faith? That doesn't make sense.

"The phrase "reasonable gun control" deserves the same contempt "separate but equal" receives, and for the same reason."

I think the latter phrase gets the contempt it does because inequality is inherent in separation schemes. Are you arguing that unreasonableness is inherent in any suggested gun control system?

# posted by

Mr. Whiskas : 9:54 AM

Prof. Levinson, I honestly have no idea what you're saying here. Are you (1) in favor of regulations contrary to your 2d A views? (2) In favor of regulations consistent with your 2d A views? (3) Willing to pay the price of your 2d A views in the form of regular spree killings? (4) Simply condemning Obama and Romney for "hypocrisy" because they respond differently to other tragedies?

I can't tell.

# posted by

Mark Field : 10:20 AM

A foreign point of view, if you like. I come from a country (France) which heavily regulates weapon ownership, so the 2d amendment seems somewhat exotic to us. It seems to me that a country that allows for an unrestricted right to bear and own arms (for a legitimate purpose : protect one's life and private property) is a country who shows deep distrust of the law. I do not see any difference between claiming an unrestricted right to protect one's property with weapons and taking justice in one's own hands. The point is not that it is not sometimes justified to use arms; the point is about the whole practice (remember Rawls's classic distinction).

Besides I think there is NOTHING liberal in a right to bear arms. I think it is liberal to defend the right to free speech, to privacy, etc. Not a right to possess stuff which is made in the sole purpose to harm people.

This is why Prof. Levinson's analogy between guns and alcohol is a fallacy : the problem with alcohol it that, sometimes, it leads to injuring or killing people on the road. Weapons do not just lead to injuring or killing people; they are made for this purpose.

If we followed Prof. Levinson's line of reasoning, we would conclude that we should forbid not only alcohol, but cars, because, driving cars (intoxicated or not) leads to injury. Per absurdum, if guns are analogous to alcohol or cars, it is as absurd to regulate guns as to regulate cars. QED. (ALthough I agree with Mark Field that it is not clear wether Prof. Levinson is in favor of regulation or not).

Of course this is a fallacy.

The point here is not the voluntary/involuntary distinction (the drunk driver will say: i did not intend to kill those people). The point is the purpose of the stuff we intend to regulate (or not). I think alcohol should not be regulated as such (except, of course for minors, etc.); but that drinking while driving, or driving while drunk should be regulated, because a car in the hands of a drunken guy is like a weapon in the hands of the Aurora maniac.

To sum up : as a liberal, I think there is no fundamental right to bear stuff made to injure and kill. Maybe it is time that the 2nd Amendment is construed in a more restrictive way. The cult of the Constitution should not prevail over common sense.

# posted by

Mathieu Carpentier : 11:03 AM

Any person who pretends to be intelligent should be embarrassed to post the "alcohol-impaired" drivel above.

What we are properly concerned with is the role alcohol-impairment plays in causation of accidents. Yet the CDC definition cited has NOTHING to say about causation:

"Drivers are considered to be alcohol-impaired when their blood alcohol concentration
(BAC) is .08 grams per deciliter (g/dL) or higher. Thus, any fatal crash
involving a driver with a BAC of .08 or higher is considered to be an alcohol impaired-driving crash, and fatalities occurring in those crashes are considered to
be alcohol-impaired-driving fatalities. The term “driver” refers to the operator of
any motor vehicle, including a motorcycle."

For example, if an 8-year old takes his daddy's keys and plows into a drunk sleeping in his car at the side of the road, that is called an "alcohol-impaired" accident.

Idiotic and totally unscientific. The only way to determine the degree of accidents and deaths CAUSED by alcohol-impairment would be to do an in-depth analysis, such as would be done in a courtroom trial.

Anything else is merely a restatement of one's religious beliefs in the matter.

# posted by

jimbino : 11:15 AM

Excellent points, Mathieu.

# posted by

Mark Field : 11:45 AM

I appreciate Mathieu Carpentier's remarks though it should be noted "foreign" views on guns can cover a lot of ground (cf. Swiss or Israeli).

But, I respectively disagree that there is nothing "liberal" about the RKBA. The basic civic republican idea here is that the people as a whole have a duty to defend a "free state" and this in part entails weapons in some cases.

Are we merely to leave weapons to the state or private armed guards? Seems a bit hypocritical really to let "them" protect us. This doesn't require Brett's disdainful views on regulation that makes the Heller ruling "contemptible" since it allows many regulations. But, a middle ground is possible.

I think the Prof. Levinson's cry from the heart is somewhat confused here. The citation to alcohol does underline something: there are many areas where we can do more to save lives. We naturally focus on tragedies and sudden loss of life (like 9/11). Meanwhile, thousands of other preventable deaths continue. The relatively recent concern for drunk driving underlines the point.

I don't know really how much more "gun control" or reasonable gun regulation would do to stop events like this. The NRA etc. might stop some reasonable laws from being in place but these open-ended discussions lead me to ask, what specifically do people have in mind? For instance, would some better background check stop the person who shot Giffords et. al.?

The bit about the flags seems like a gratuitous comment. Overall, since you were "critical" about "symbolic gun control legislation," what do you have in mind. Wasn't there "honest discussion" when such legislation was passed?

To give someone I don't usually think much of, Charles Krauthammer noted one such law (limiting "assault weapons") was important mostly symbolically to show that there are limits and rights bring with them responsibilities.

The American people accept a right to own guns. I think the Constitution protects it too. It is a touchy subject. But, this garbled reply (as noted by others here) helps suggest why a fully honest discussion is hard to come by.

# posted by

Joe : 12:42 PM

Interesting article suggested by "zuch":

http://www.newyorker.com/reporting/2012/04/23/120423fa_fact_lepore?currentPage=all

Another contributor lists some possible regulations on the same thread:

http://www.volokh.com/2012/07/21/dont-turn-aurora-killer-into-celebrity/#comment-594226190

# posted by

Joe : 12:58 PM

I don't have any problem with the civic republican theory of an arms bearing citizenry (a la Switzerland). Our current system bears little resemblance to that, and the regulations imposed by the Swiss government would be vehemently opposed by gun rights advocates in this country.

# posted by

Mark Field : 1:16 PM

My overall concern was to refute the idea that "there is NOTHING liberal in a right to bear arms."

It need not necessarily be the Swiss model. First Amendment freedoms also promote civil republican ends in various ways.

Since Brett et. al. thinks Heller is too restrictive, yes, Swiss type limits would likely be opposed by "gun rights advocates." But, the opening to various such regulations is there. Scalia specifically provided an advisory opinion discussion that suggests as much though beyond the right to own a handgun at home, the USSC has not deigned to decide the matter yet.

# posted by

Joe : 1:26 PM

I appreciate everything Joe said about my previous post. I have read Pocock like all of you so I will not indulge in the republicanism v. liberalism cliché.

However, I have never said that the 2nd Amendment was not justified in 1791. And everybody has seen westerns such as The Man who killed Liberty Valance , and lerant the lesson that in the Far West, when law tries to fight guns, guns always win at the end.

But I agree with Mark Field about everything he said (and formulated in a much better English than me). What was justified in 1791 is not anymore in 2012.

I know very much that the converse of Hume's law is true : it is not because something is forbidden (or only "regulated", which means, forbidden in a certain class of cases) that it just ceases to exist (from an ought you can't derive an is). A regulation on firearms as restrictive as the French one did not prevent a maniac to kill seven people in Montauban and Toulouse last March. So regulating firearms may not be very efficacious, but it is more efficacious in preventing shootings than allowing for un unrestricted right to own and bear arms.

The core of my argument is this : the point in having a legal system is that you let somebody everybody agrees on solve conflicts which would have no ending otherwise. This is why I said that allowing for a right to bear arms is just like letting people take justice into their own hands. But this is an open door to endless vendetta.

PS : Oh and by the way : "Are we merely to leave weapons to the state ?" Uh.... Yes.

"or private armed guards?"... Uh... should be regulated!

# posted by

Mathieu Carpentier : 2:23 PM

I appreciate the reply.

I don't know what changed from 1791 and today so that the state alone should provide armed protection. We have courts too. Doesn't mean alternative means of conflict resolution are prevented.

The private security guards underline the point. We will continue to have weapons used by private parties. I don't think the alternative is taking justice in our own hands.

The "liberal" use of arms would include the idea that we don't have such license. We would have to work within the law. We manage it now without "endless vendetta" of Greek myth proportions.

Anyway, this sort of "honest discussion" should please Prof. Levinson though I fear an Onion article I just read might be the ultimate path here. I'll leave it there.

http://www.theonion.com/articles/sadly-nation-knows-exactly-how-colorado-shootings,28857/

# posted by

Joe : 2:36 PM

Sandy, I detect a guilty conscience for your role in legitimizing the dubious arguments that led to Heller. If the 2nd Amendment really protects individual gun ownership to the extent Heller suggests it does, then it is a moral travesty and should be repealed or interpreted out of existence. If someone defends a conception of 2nd Amendment rights that makes serious gun control impossible, that person should be deemed a moral pariah. The NRA, the 2nd Amendment apologists, the bought-and-paid-for politicans, all have blood on their hands.

# posted by

Brian Leiter : 3:54 PM

A propos the topic du jour:

http://www.kieranhealy.org/blog/archives/2012/07/20/america-is-a-violent-country/

# posted by

Brian Leiter : 3:57 PM

To set the record straight : I have never said that gun ownership by private parties should be forbidden. I just said it should be regulated, which is, forbidden in certain cases, and allowed in others only under restricted conditions (a strict licensing scheme or else).

As for the "public monopoly of legitimate violence", well I still think that a state's use of weapons is more legitimate than private ownership, but I also think that it should be regulated too. To put it in a nutshell : I think a police officer is more legitimate than me to carry a gun; but that he should be allowed to use it only under certain conditions (which is the law in all, by the way). (In other words, I do not condone police brutality, nor what we call in French "bavures"!)

And to conclude : I still see nothing liberal in the NRA.

# posted by

Mathieu Carpentier : 4:19 PM

"So anyone who might suggest what you determine to be gun control, even people who may have just come up with the idea recently, should be presumed to be in bad faith? That doesn't make sense."

Mr. Whiskas, again I say, see "separate but equal", for a similar situation. Until gun owners see some evidence the war is over, (And characterizing the NRA as an 'extremist' organization is evidence to the contrary.) we will, quite rightly, view all proposals for gun regulation with extreme skepticism.

This man deliberately committed murder, no accident. He could have racked up a similar death toll by driving a car into a crowd, and would we hear the demands for legislation? Even before details were known? No, I think not.

This hair trigger reflex to call for legislation anytime an excuse appears is nothing more than a demonstration there has been no peace declared by those who have long sought to erase this liberty.

# posted by

Brett : 4:34 PM

Mathieu, your English is far better than my French. :)

Joe, I think lots has changed since 1791. There wasn't much public law enforcement in 1791. Police forces didn't even exist (they came in around 1840). Private individuals were allowed to bring public prosecutions. Firearms were poor methods of self-defense, being so inaccurate and so slow to load that they were impractical. The militia was very regulated and under state control.

I agree with Mathieu's basic point that private law enforcement is a contradiction. It allows someone to be a judge in his own case. That's defensible in true self-defense situations (immediate risk of harm, no chance to retreat, etc.) but not in others. One of the real gains of Liberalism was that it restricted the private violence which had been all too common under the Ancien Regime.

As I understand civic republican theory, it is a communal defense. A collective right rather than an individual one. That's consistent with Liberalism; self-help is not.

# posted by

Mark Field : 4:43 PM

I could not agree more with Mark. Thanks for formulating my point in such a concise and elegant way.

I do not intend to make any more comments here, because I do not want to pollute this excellent blog (I mean, I am beginning do think of myself as a troll, as young people say).

# posted by

Mathieu Carpentier : 5:05 PM

# posted by

Mathieu Carpentier : 5:05 PM

Since watching baseball is painful at the moment ...

How many mass murder via car has occurred over the years?

The "NRA" isn't the point here. Private ownership of guns is. I'm for the second; I rather someone other than the first defend it.

Mark, your comment doesn't do much for me. First, I realize things changed a lot here and in other areas. The point is if it changed enough to ban private ownership.

More accurate guns for self-defense if anything helps the other side. We have loads of gun regulations and the means to track things much more than in the past, including national databases.

Self-control is a reality in liberal regimes. Police "self-control" too when they decide when to use firearms.

The liberal state cabins violence, including regulating personal use of force. Guns are regulated. A person might be required to be trained. They are background checked etc.

There are various ways to protect the community, including protecting it from violence by dealing with personal attacks.

Yes, the right here also is individual which is also "liberal" since personal autonomy is "liberal." There is an overlap. Freedom of speech, e.g., promotes republican and personal ends.

But, even limiting it to the "communal," there is "something" liberal to bearing arms.

# posted by

Joe : 5:15 PM

Mathieu, you should feel perfectly free to keep commenting. Your comments aren't trollish in any way.

Joe, I don't favor banning all guns (not that you were saying that). I do think some types of guns should be banned (e.g., automatic weapons). I also favor other regulations which would limit the potential for spree killings.

My point about guns in 1791 is directly related to this. A musket couldn't be used in a spree killing. It's precisely the increase in accuracy and firepower which differentiates the world of 1791 from today.

When people talk about "rights" with respect to guns, I don't see it. The 2d A is, for me, an expression of communal right. I don't know of any natural right for an individual to own a gun. Maybe a club. :)

# posted by

Mark Field : 5:42 PM

Joe, the NRA IS the most moderate defender of the 2nd amendment, unless you count the occasional false flag operation by the gun control movement, (Such as "Americans for Gun Safety".) which are so "moderate" they work for the other side.

We have here a case of mass murder by a man about whom little is known. If it turns out there wasn't any reason to suppose he was about to commit mass murder, what legislation could have stood in his way, which wouldn't involve dramatically infringing the rights of enormous numbers of people who weren't going to do anything wrong?

But, of course, as Mark's remarks demonstrate, there are people who DO wish to infringe the rights of enormous numbers of people who aren't going to do anything wrong. The war is still on, and "reasonable regulation" is still the battle flag of those who wish to destroy this civil liberty.

# posted by

Brett : 7:08 PM

This man deliberately committed murder, no accident. He could have racked up a similar death toll by driving a car into a crowd
# posted by Brett : 4:34 PM

He could, but he didn't. Thay always use guns. Why do you think they don't use cars?

# posted by

Anonymous : 7:19 PM

wish to destroy this civil liberty.
# posted by Brett : 7:08 PM

Which "militia" do you belong to?

# posted by

Anonymous : 7:25 PM

Mark Field asks a number of fair questions. Were we able effectively to control automatic rifles that use clips of many bullets, I would support that. And, as a matter of law, I think that Heller and McDonald are most easily read as protecting only a right to possess firearms in one's own home. There is no reason in the world to suggest that the Supreme Court currently (or in a foreseeable future) has five votes for the proposition that one should be able to take one's firearms to a shopping mall.

But I do think that Brian misses the implication of his own point that America is indeed a violent society and, what is not the same thing, is also to some extent a libertarian society that views the right to possess firearms as a "fundamental right." To paraphrase Donald Rumsfeld, one makes public policy (and, for that matter, constitutional rulings) for the societies one lives in, not the societies one might prefer.

One hope I had for Heller (and McDonald) is that it might enable a more rational discussion of gun policy, given the constitutionalization of at least some form of protected gun ownership. Alas, that seems not to work. It is one of the many pathologies of American politics.

Alcohol is a better analogue than cigarettes, even though the death rate for cigarettes is higher, because most of the deaths caused by cigarettes involve those who made (some kind of) a decision to start smoking in the first-place. Even if one grants "full credit,' as it were, to "second-hand smoke," I seriously doubt that a great many third-parties owe their premature deaths to that phenomenon, though I personally hate the smell of cigarette smoke and strongly appreciate the 'smoke-free" venues that are now legally required across the nation. But, obviously, the arguments regarding alcohol are not only paternalistic (and/or requiring extensive discussion of the phenomena of addiction), but also directed at the direct harms visited on people who under no plausible analysis were responsible for their vunerability to alcohol-induced deaths.

Even with regard to cigarettes, though, how many anti-smoking activisits would support criminalizing their manufacture or sale, as distinguished from slowly but surely raising the cost by higher taxation, coupled with campaigns to educate people about the sheer stupidity of smoking?

A final comment: As suggested by one of the discussants, I do appreciate the tone of this discussion. Would that it could be replicated by those who purport to lead us.

# posted by

Sandy Levinson : 7:55 PM

"One hope I had for Heller (and McDonald) is that it might enable a more rational discussion of gun policy, given the constitutionalization of at least some form of protected gun ownership. Alas, that seems not to work. It is one of the many pathologies of American politics."

That was never going to happen, any more than segregationists were going to embrace rational discussion after Brown.

# posted by

Brett : 8:51 PM

That was never going to happen, any more than segregationists were going to embrace rational discussion after Brown.
# posted by Brett : 8:51 PM

Good point. Segregationist are probably more rational than gun nuts.

# posted by

Anonymous : 11:34 PM

Mark, I think there is a right to personal defense ('natural' or not) and guns is derivative of that. There also is a right to taking care of one's health and technology is used there too.

Joe, the NRA IS the most moderate defender of the 2nd amendment

Various people "defend" the 2A including those who are not as strident and at times too supportive of conservative causes as the NRA for my liking. If the NRA is actually the most "moderate," it would be a shame.

which wouldn't involve dramatically infringing the rights of enormous numbers of people who weren't going to do anything wrong

I don't think the limits Mark Field set forth in the link "dramatically infringes" the rights of an "enormous number" of people.

Heller/McDonald supports "reasonable regulations" so I wonder if Scalia, Kennedy, Thomas, Alito and Roberts "wish to destroy this civil liberty."

Brett more than once, OTOH, belittled fundamental value of the right to vote. So, I can understand if there is some disagreement of terms.

# posted by

Joe : 11:53 PM

I agree that there is a natural right of self-defense. I just don't think that there's a right to any particular method of that.

Moreover, that argument is often circular -- if not for the threat of others having guns, there'd be little need for defense against them.

# posted by

Mark Field : 12:08 AM

The tone of this discussion can't be replicated by politicians, because politicians want to be reelected, and most of the participants in this discussion are expressing opinions which would cause a candidate in most areas of the country to be defeated. Gun control is a cause which has lost in the arena of democratic politics in this nation.

The best analogy to this isn't cigarettes, because there's no right to those mentioned in the Bill of Rights, and certainly not alcohol, because you never even got close to passing an amendment. The best analogy is the period of "massive resistance" after Brown. This is just an analogy you shy away from, because you don't like the role you occupy in that analogy: Bull Conner and the segregationists.

So, the guy was using the civilian version of an AR-15. Do you have any idea how many people own this gun, or the Glock 40 he also used? These are highly popular guns, and virtually everyone who owns one does NOT go on to commit murder.

So, what are you going to do, start banning articles only rarely used for crime? Maybe steak knives? Oh, maybe strip people of their civil liberties if they drop out of college? That sounds "reasonable".

And then the next time somebody drives a car into a crowd, (It DOES happen, you know, even if the people who do it don't get the same notoriety as if they'd used a gun.) you'll start banning cars?

No, stop now. This very line of thought is irrational. The capacity to commit violence is inherent in people, and even a complete police state can not deny people the means to kill if they decide to do it. You wouldn't think this response was rational if you didn't start out with the free floating desire to attack the right to keep and bear arms, just waiting for an excuse to pursue it.

Engage in some introspection, people: What WOULD you do if he'd driven a care into the crowd in front of the theater, and killed as many people, as he could have easily done. Would you be crying for legislation, before even knowing the details? Bans on SUVs? Smaller capacity gas tanks?

What rational basis have you got for treating guns and cars differently? Both are capable of being used as tools of mass murder. Both are mostly not so used.

# posted by

Brett : 7:32 AM

What rational basis have you got for treating guns and cars differently? Both are capable of being used as tools of mass murder. Both are mostly not so used.
# posted by Brett : 7:32 AM

Numbnuts, the difference is that killing a bunch of people is what those guns are intended to be used for. They serve no other useful purpose. That seems pretty obvious.

# posted by

Anonymous : 8:42 AM

The 2A seems to suggest there is a specific type and as Prof. Amar notes, by the time of the 14A, the general understanding is that it covered individual use. As to self-fulfilling prophecies, if true, it is the a fact of life. And, self-defense is not just against guns.

Gun control is a cause which has lost in the arena of democratic politics in this nation.

Why the need for all those lawsuits to challenge democratically passed legislation?

you don't like the role you occupy in that analogy: Bull Conner and the segregationists.

There have been a few extreme cases like David Koresh but the analogy fails because gun owners were not subject to centuries of slavery (the real kind, not the analogy free, often well off, and usually white people, use), firehoses weren't shot at peaceful citizens, churches firebombed, people assassinated etc. Your disrespect of history while selectively saying we should respect it in other contexts is troubling. To be generous.

Mark Field suggested options that were not of the "ban steak knives" variety including things like banning body armor or restricting a much more lethal and less widely used sort of "arm."

Brett doesn't need to be re-elected. What is his excuse? An inability to examine strongly held beliefs that have a lot of cultural and other baggage, perhaps. See also, many other hot button topics.

# posted by

Joe : 9:37 AM

"That was never going to happen, any more than segregationists were going to embrace rational discussion after Brown"

I don't think you've provided any grounds for this equation of segregation and separate but equal with calls for the reasonable regulation of guns, other than you find them all to be wrong. But of course the moral wrongness or rightness of such a thing is what is being discussed. You're just re-stating your conclusion.

"Gun control is a cause which has lost in the arena of democratic politics in this nation."

Actually, SCOTUS took much of the debate out of the political arena and foreclosed in many areas, many of which were areas where politically gun control had 'won.'

# posted by

Mr. Whiskas : 9:57 AM

Heller, noting such "presumptively lawful regulatory measures" were merely examples and not exhaustive, noted:

nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

Another limit referenced the historical restriction on "dangerous and unusual weapons" and Roberts and Scalia referenced just that when Paul Clement, e.g., flagged the danger of certain types of weapons being allowed if strict scrutiny was the test.

Shag might be able to flag a law review article that noted how many regulations have so far been upheld by the lower courts. The SC specifically merely has told us so far that possession of handguns in the home is protected.

The open to regulation has led Brett to note that he doesn't' think much of Heller. Not quite Mark Field alone here, huh?

# posted by

Joe : 10:18 AM

Consistent with my comments above about the civic republican interpretation of the 2A, I don't see the right to self-defense located there. If in the course of defending the country you also defend your own life, of course that's protected. But IMO not outside the militia context.

Brett's point about the electoral politics of gun control has a certain validity. Democrats have pretty much dropped the issue on a national scale because they feel they need votes from the South and West. But Joe is right that there are plenty of places where support for more regulation remains very strong. My personal view is that the whole subject is one which should be decided politically rather than by the courts.

The truly ironic thing about Brett's rather odious historical comparison is that there's such a strong correlation between those who oppose any regulation of guns and those who opposed integration. They even occupy the same basic parts of the country. Naturally, they had then and have now the highest rates of violence.

# posted by

Mark Field : 10:37 AM

So now Sandy Levinson wants to consider "alcohol-induced" deaths? I challenge him to come up with more than a scintilla of scientific data regarding "alcohol-induced" traffic or other deaths.

Hint: don't bother looking for evidence in propaganda from the CDC or any other government-sponsored organ.

Around the world, there are probably more water-induced deaths than "alcohol-induced" deaths, especially when one counts the years of life lost. A lot of lives would be saved and nutrition improved if we were to send cases of beer to plague-affected regions.

# posted by

jimbino : 11:31 AM

It's deserved odium. I don't suppose Bull Connor thought badly of himself, either, but that was no reason to spare him the contempt of civilized beings. As you all have my contempt. Stop deserving it, that's my advice.

Look, it's a CIVIL LIBERTY. You don't like that, understood. But it is. That means it gets treated like a civil liberty. No matter how much it irks you. No matter how much you wish it weren't. Screw all this sophistry designed to moot the liberty.

It's not a privilege. You lost that battle over 220 years ago, lost it again when Heller was decided, lost it as each state added the same right to it's own constitution, have lost it until you manage to repeal yourself part of the Bill of Rights.

You don't get local option for the First amendment, you don't get it for the Second, either.

"Numbnuts, the difference is that killing a bunch of people is what those guns are intended to be used for. They serve no other useful purpose. That seems pretty obvious."

Seems pretty obvious to me that they must, in fact, serve some other purpose, in as much as virtually all of them actually ARE used for some other purpose. In fact, purpose is a characteristic of conscious beings, not inanimate objects, so spare us all your demonstrations of your own irrationality, numbnut.

# posted by

Brett : 12:46 PM

Seems pretty obvious to me that they must, in fact, serve some other purpose, in as much as virtually all of them actually ARE used for some other purpose.
# posted by Brett : 12:46 PM

Attempting to compensate for having a small pee-pee isn't a useful, or intended, purpose.

# posted by

Anonymous : 1:06 PM

"contempt of civilized beings"

Again, not seeing the firehoses, not seeing the assassinations, not seeing the history of slavery, not seeing the segregation. Some people name calling is not of the same caliber. Some people hating guns (as some do) is not the same as what happened to actual people.

You lost that battle over 220 years ago, lost it again when Heller was decided, lost it as each state added the same right to it's own constitution

I personally think there is some core that is a national "privilege or immunity of citizenship" so think Mark Field goes a bit too far (though I'm not sure how far he would allow regulations) but a few things stand out here.

(1) "Each state" actually did not add "the same right" to its constitution. Up to mere months before McDonald, e.g., the MA Supreme Court held that its constitution did not protect such an individual rights view.

Even Scalia noted "most" states had provision, and repeatedly state courts have interpreted more restrictively. Your side "lost" repeatedly in such places.

[2] The very fact that so many states, early on, protected guns is but one reason why your comparison is so very weak. Said states did not protect blacks the same way.

[3] Heller and state court rulings for years too ALLOWS lots of regulations.

[4] What did they really "lose" 220 years ago? The 2A only applied to federal government then. It is not even clear how much it applied to federal areas (rights were specifically parceled out in territorial laws, e.g., which seems redundant if the BOR was self-evidently applicable).

[5] For years, states had broad discretion to regulate locally regarding the 1A. They still do in respect to obscenity. They have the ability to regulate other areas to, including time, place and manner laws. The 2A allows some regulations too. "Civil liberty" is not absolute. See also, voting, abortion, travel restrictions, etc.

The 2A is not as clear as Brett thinks it is & does seem to imply a certain federalist security for states to have some discretion to meet local needs. That was the original understanding of the 1A -- states had discretion, e.g., to establish churches.

--

As to Mark Field's last comment, I think there is a separate individual liberty interest here, but I'm not sure how much "outside the militia context" helps. The militia like the educated public who speaks and assembles is a continual entity in some fashion.

If a state wishes to provide more oversight -- putting aside this might merely be a thought experiment -- including even having neighborhood militia leaders or such overseeing membership, it's reasonable.

# posted by

Joe : 1:07 PM

The Second Amendment's preamble makes it unusually clear that the right to keep and bear arms was not recognized for its intrinsic value, but rather for instrumental purposes. In Heller, however, the Supreme Court detached the right from the purpose identified in the preamble. This move that may or may not have been defensible as a matter of legal interpretation, but once the right is detached from the purpose identified in the preamble, it can only be justified by a cost-benefit calculus far different from anything envisioned when the Second Amendment was ratified. The framers, for example, certainly did not think that owning semi-automatic rifles with high-capacity magazines for purposes unrelated to militia service was the price we must pay for living in a free society; that question never occurred to them. Accordingly, contemporary advocates of gun rights have to either argue that the right to bear arms is an intrinsic good (a difficult argument to make and one plainly at odds with the framers' assessment as reflected in the preamble), or advance some other argument for why there is some overriding justification for the extravagant rights enjoyed by current law -- such as the right to own a semi-automatic rifle with a high-capacity magazine. Identifying the greater good accomplished by such an extravagant notion of firearms rights is no easy task, and that, I believe, is the reason why a gun-rights advocates are so rarely willing to able to advance any kind of candid justification for the expansive gun rights found in current law (and perhaps not even required by the Second Amendment itself) is so rarely advanced, as Professor Levinson oberves.

# posted by

Larry Rosenthal : 1:10 PM

I'm very disappointed to learn that you as well as (Balkin, Tribe and Akhil Reed Amar) "contributed to legitimizing the 2nd amendment" gun rights arguments. How could you do so in good conscious? While prominent rightwinger academics (like R. Barnett) are willing to put aside reason to relentlessly promote their policy objectives, prominent liberals like yourself seem unwilling to do the same for our side. But isn't it your obligation to use your influence as a public employee for good rather than to help causes which you know to be atrocious? Some things are more important than publishing an interesting paper/book. (I say all this as a fan of your work)

# posted by

steve : 1:41 PM

Joe, I'd be perfectly fine, given current law, if states wanted to create Swiss-style militias in which everyone was required to own a gun, maintain it, and demonstrate proficiency with it. IOW, actually have a militia, properly regulated.

I see that as independent of any individual *right* to own guns or use them. As a matter of policy, I have no problem with ownership of (certain) guns for many purposes. I just favor regulations which, IMO, would prevent the costs of gun ownership from being externalized so often and with such tragic results.

In an ideal world, I think decisions about militias and gun regulations would be better off made by the national government, for reasons Madison set forth in Federalist 10.

# posted by

Mark Field : 1:52 PM

Thanks Mark.

The general public favors some regulations. How much is the rub.

Madison probably accepted that there was some enforceable limit to discretion here, fwiw, but anyways, accepted the 2A & the state control that entailed.

The Swiss ideal wasn't really in place back then either. As you know, surely, but for others, that is a reason why Hamilton was no big fan of militias.

# posted by

Joe : 2:12 PM

Most Federalists, particularly those who served in the War, were no fan of militias. They saw how ineffective the militias were during the Revolution (Washington's private correspondence is just brutal on them). I suspect they were perfectly happy to let them die a natural death, which is pretty much what happened.

I actually think a proper militia can serve a good republican purpose. But we don't have one, and most people don't seem to want one, so it's kind of a moot point.

# posted by

Mark Field : 2:57 PM

I'm cautious about bringing a law review article to a gunfight here at the "Not-So-O-K-Corral." Instead, those interested might Google "Gun control regulations since Heller and McDonald" to find an article of one's choosing. A fairly recent (4/1/12) article by Michael J. Habib "The Future of Gun Control Laws post McDonald and Heller and the Death of One-Gun-Per-Month Legislation" is listed and available at SSRN. After watching "This Week with Gorgeous George" featuring the panel of George Will, Joe Klein, Cokie Roberts, Gov. Ed Rendell and Jennifer Rubin, talking over and interrupting each other, making ideological/political points, not a dialogue but a diatribe, I'm sitting this one out, with a view to making my 82nd birthday next month in fairly good health.

# posted by

Shag from Brookline : 3:16 PM

Sandy:

Good analogy. The reason we do no longer debate government prohibition of alcohol or firearms is that a heavy majority of the polity has made up their minds to oppose both. They are unwilling to consent to the government denying them these things in a effort to deny them to the careless and evil.

No further discussion required.

# posted by

Bart DePalma : 7:27 PM

The founders didn't think a militia would make a good military, they thought it would make a sufficient military to blunt an invasion while an actual army could be raised, while sparing the nation the threat posed by a standing army. But I agree, this is largely a moot point, in as much as the amendment attributes the right to the people, not the militia, and doesn't condition non-infringement of the right on the militia actually being effective.

Bart sums it up nicely. You lost, and I think you know it. You do however think that a public tragedy might open a short window where the public might be panicked into permitting an infringement they'd oppose given more time to think, and so ever few years we get this ghoulish display when some nutcase commits a useful atrocity.

Such atrocities are your only hope, how you must long for them.

# posted by

Brett : 9:35 PM

In the spirit of Sandy's work, why not consider the possibility of a new amendment modifying or clarifying the Second Amendment? Or perhaps even the possibility of outright repeal, as politically unpopular as that might seem today. And if the amendment were simply repealed, what would be the practical consequences? My guess is that many, perhaps even most, states would continue to allow gun ownership, and would likely enshrine the right to bear arms in their own constitutions. Other states might enact strict regulations or even complete bans on ownership of firearms. Then we might have the makings of a natural experiment to provide better evidence on how restrictions on guns affect the rate of gun-related deaths/injuries. Sounds like a nice federalism argument to me.

# posted by

Eli Poupko : 11:40 PM

Yes, please try that. And then accept it when your proposed amendment goes down in flames.

# posted by

Brett : 7:13 AM

Eli's proposal in effect* was the law of the land for a couple centuries.

States, like they have respecting other liberties, had varying degrees of protection (a few had pretty restrictive laws) though most had a basic baseline right.

The flexibility arose from the fact that the Constitution provides open-ended terms whose specific meanings develop over time, leaving open state flexibility in particular, at least for much of our history.

States also have flexibility regarding let's say religion, even today. Oregon v. Smith sets a baseline but some states protect religion more, general applicable laws not enough. Also, federal statutory protections like RFRA also add more protections.

A repeal of the 2A is unpopular since it provides flexibility as other provision over time, resulting in debates and change. During such debates, some non-politicians make comments they really should not, out of self-assurance they are right.

--

* Putting aside what the "right" interpretation of the federal Constitution entailed, including incorporation of the 2A and other provisions (such as an individual liberty found in the 4th -- to protect self and home, 5th -- substantive liberty or 9th -- unenumerated right) to the states.

# posted by

Joe : 9:13 AM

[it is also unpopular to repeal the 2A since a majority supports a RKBA with regulations, which recent rulings allow, while not agreeing on a different wording in significant numbers. The flexibility still is a key point here.]

# posted by

Joe : 9:20 AM

I still wish to avoid the crossfire of this gunfight here at the "Not-So-O-K-Corral" but Sandy's own comment on his post is running through my mind, especially this:

" ... Were we able effectively to control automatic rifles that use clips of many bullets, I would support that. And, as a matter of law, I think that Heller and McDonald are most easily read as protecting only a right to possess firearms in one's own home. There is no reason in the world to suggest that the Supreme Court currently (or in a foreseeable future) has five votes for the proposition that one should be able to take one's firearms to a shopping mall."

Self-defense is not limited to one's own home. Events such as in Aurora may cause movie - and mall, other public venues - goers concerns with their self-defense, at least in an anticipatory - or even pre-emptive - sense. So how does one go about preparing for such self-defense? The home is private and guns may be openly carried/displayed or concealed. May an invitee being aware of such possibilities carry openly or concealed in another's home, with or without the permission of the home owner/renter, in concern for his/her self-defense?

SCOTUS has not provided guidance in these regards as yet, other than in dicta in both Heller and McDonald. At both the levels of state and federal lower courts, no clear picture has emerged on the dicta of Heller and McDonald regarding limitations on Second Amendment rights. There are some absolutists out there on the Second Amendment. Each state can react in different ways to limitations. There will be test cases over the years in efforts to expand Second Amendment rights beyond one's own home. I'm not about to predict what SCOTUS might do, including the current five majority in Heller and McDonald. But surely self-defense outside of the home will eventually be addressed by the Court in Second Amendment cases. How much of a hurry are our state and federal courts in to provide guidance? All deliberate speed?

Jack Balkin's post on his and Sandy's article titled "The Dangerous Thirteenth Amendment" (which I have downloaded and plan to read shortly) reminded me of Sandy's now ancient "The Embarrassing Second Amendment." I'm wondering about perhaps switching "Dangerous" and "Embarrassing" in these titles.

# posted by

Shag from Brookline : 10:31 AM

It's time for a new slogan:

"Guns Don't Kill People, They Just Make it a Lot Easier"

# posted by

Anonymous : 1:18 PM

Shaq raises an important point: Heller is indeed an intellectual shambles, as I and others argued at the time. That is, Scalia's opinion makes relatively little sense, either as an exercise in "originalism" (see, e.g., Nelson Lund's devastating critique) or as "reasoned elaboration" setting out the actual meaning nof the new doctrine. Thus it is altogether fair, intellectually, to suggest that what is being protected is a constitutional right to possess a weapon whenever and wherever one might think it useful for potential self-defense. It is also fair, however, to suggest that the venue is crucial, i.e., one's home.

Note that I suggested there weren't five votes to adopt the stronger reading. I am engaging in a purely Holmesian analysis, trying to predict votes rather than engaging in a quite different exercise of analyzing abstract arguments. I would still be shocked if there are five votes to protect, say, the rights of attendees at the Washington Nationals or Washington Redskins games to pack heat.

I would also be surprised if even Mitt will be heard to say that the correct response to Aurora is to allow everyone to bring guns to shopping malls and movie theaters. i would be even more surprised if either Mitt or Obama, each with his Harvard Law School education, engaged in a single paragraph of cogent analysis of what they believe the Second Amendment really means.

# posted by

Sandy Levinson : 1:32 PM

Nelson Lund has various interesting articles available on SSRN, including one that notes how Heller badly discussed Miller.

One upfront notes:

Justice Scalia’s important
threshold conclusion is correct on originalist grounds: The Second
Amendment does protect a private right to keep and bear arms for the
purpose of self defense.

"The Second Amendment, Heller, and Originalist Jurisprudence"

Then, he notes how Heller messes things up. I don't think the article ends up in a great place in its analysis, so perhaps Scalia should be given a bit of a pass too. A bit.

When the 1A was dealt with in the middle decades of the 20th Century, the Court had a bit more humility than either side showed here.

# posted by

Joe : 2:26 PM

"Heller is indeed an intellectual shambles, as I and others argued at the time."

I'm not aware of anyone, on either side of this issue, who wouldn't agree with that. The coherent, (Wrong in so many ways, but not incoherent.) position on the minority side, that the 2nd amendment was a relic properly fed into a paper shredder, was too politically explosive to even utter.

The coherent position on the other side, that the amendment guaranteed to every American "every terribly implement of the soldier"? Equally explosive, it only had the advantage of being right. Not a particularly strong advantage in today's courts.

The muddled middle prevailed, very muddled indeed.

# posted by

Brett : 5:49 PM

The purpose of the Second Amendment was to guarantee an armed citizenry (the militia) to repel foreign invasions and to enable an armed revolution if our own government devolved into tyranny. The latter purpose is not a subject which even the conservative Scalia wanted to address.

Our Founders were afterall armed revolutionaries. What made the Founders rather unique in history was that they were willing to arm the citizenry to check the power of their own new government.

# posted by

Bart DePalma : 12:10 AM

Dear, dear, Bart: you just keep telling yourself that.

Let's also pretend that all the Founding Fathers agreed on the purpose. What fun!

# posted by

jpk : 12:14 AM

Bart is correct. The purpose of the Second Amendment was to ensure an armed citizenry that was seen as a bulwark of freedom. And just like the way you promoted the progress of science and the useful arts was by granting copyrights and patents for limited times, the way you ensured the security of a free state was by granting individuals the right to keep and bear arms.

The thing is, that has nothing to do with the legal debates over Heller's meaning, because those debates focus on issues like levels of scrutiny which are a product of modern constitutional interpetation.

I would argue that the most reasonable interpretation of the Second Amendment is that it protects citizens' rights to own military style arms (and thus assault weapons bans are unconstitutional) but it also permits pretty strict regulation of the militia (for instance, waiting periods, registration, and mandatory safety and training requirements are all constitutional).

# posted by

Dilan : 1:30 AM

"I would argue that the most reasonable interpretation of the Second Amendment is that it protects citizens' rights to own military style arms (and thus assault weapons bans are unconstitutional) but it also permits pretty strict regulation of the militia (for instance, waiting periods, registration, and mandatory safety and training requirements are all constitutional)."

I would agree in part. The federal government clearly has a great deal of authority over the militia, but the right belongs to the people, who are not the same as the militia.

So that, while the government can order militia members to be armed with specific weapons, undergo specified training, and so forth, they remain members of the people, as do those not enrolled in the militia. As such they have a right, independent of the government's dictates, to be armed, to train themselves...

Remember, the founders did not trust government. They thought having a militia important, but were concerned that the government might chose to make the militia go away by enrolling very few people, or dictating minimal arms or training. So we all have the right to become militia in all but name, so that a real militia can re constituted in an emergency from the citizenry even if the government had set out to make it impossible.

To return to an analogy I've used before, suppose you thought that a fire department was necessary, but were concerned that the government which created it might be taken over by arsonists? Then authorizing the creation of a fire department wouldn't be good enough. You'd give the people the right to obtain fire fighting training and equipment even if the government didn't want a fire department to exist, wanted to burn the place to the ground.

A well regulated militia might be the best security of a free state, but those who run the state frequently don't WANT it to be free! That was foremost in the minds of the founders, and why the 2nd amendment set out to deny the government authority to disarm the people.

# posted by

Brett : 7:13 AM

If Brett and Bart are correct in their readings then, considering the 2nd was clearly only applicable to the federal government when adopted, this seems to read better with Stevens contention that the 2nd was meant to keep the federal government from disbanding or messing up the state militias, and not with preserving some 'pre-existing right' of armed self defense.

# posted by

Mr. Whiskas : 8:04 AM

Brett:

The Founders saw the militia of that time as an armed citizenry aka the People. The prefatory clause imposes no limits on the right.

Jpk:

Here are a variety of quoted from our armed revolutionary Founders as to the purpose of the Second Amendment right:
http://en.wikiquote.org/wiki/Second_Amendment_to_the_United_States_Constitution
http://www.guncite.com/gc2ndfqu.html
http://cap-n-ball.com/fathers.htm

# posted by

Bart DePalma : 8:14 AM

In the face of global warming, hell frozen over -- Dilan said Bart is correct. He also at the time said Heller was a decent opinion.

Whiskas the 2A was incorporated into the 14A, just like the 1A, which also was originally a limit on "Congress," giving states discretion over, let's say religion.

I "remember" history differently from Brett, including how the framing generation had government regulated militias and that was the mind-set of the right found in the 2A. Voting and juries also were basic liberties. Both regulated. Requiring literacy, e.g., for both, valid at the time.

I am not an originalist and do not know what "the framers" would have thought about modern day "assault weapons" especially as to state regulation. Dilan's position is reasonable, but I don't find it compelling.

Note how he thinks that w/o saying people are hoping for tragedies.

# posted by

Joe : 9:37 AM

founders did not trust government

The Constitution gave the federal government much more power. So, they trusted it a tad. Part of being "free!" is having government.

Basic liberties, including those found in the 1A, are regulated in various ways. We should respect the Constitution as a whole, including that it trusts government.

Or, should we ignore the parts we don't like?

# posted by

Joe : 9:47 AM

Let's remember also that the 2A, like all the rest, wasn't even part of the original Constitution. The Federalists certainly did NOT mistrust government; for better or worse, they were in favor of it. Lots of people today tend to pick up the anti-federalist arguments and try to foist them off as what "the Founders" believed.

To me, the key point about all the amendments is that, when originally adopted and for 80 years after, they solely restricted the power of the federal government. If a state established a church, that was no violation. If a state had banned all guns, that would have been no violation either (though it might have violated the state constitution).

All this allowed the states to construct a militia pretty much as they chose. It had nothing to do with the power of any particular state to require or ban weapons, either of which was perfectly constitutional under the original design.

# posted by

Mark Field : 10:29 AM

The federalists most assuredly DID mistrust government, which is different from thinking government unnecessary. And the "strong" government they created was practically an anarchy compared to the federal government we have now.

Bills of Rights are not expressions of trust in government. They are not intended to facilitate the aims of governments. They are premised on the notion that sometimes governments will aim to do wrong, and should be impeded in this.

# posted by

Brett : 12:55 PM

The federalists most assuredly DID mistrust government, which is different from thinking government unnecessary.

Again, they trusted government enough to give the federal government more power. No one was completely trusted. The reason government is necessary is because men aren't angels. Which distrusts people.

This balance is recognized, always was, by how arms were regulated while being protected. Talk past it all you want, but that's the bottom line.

Bills of Rights are not expressions of trust in government. They are not intended to facilitate the aims of governments.

The BOR has various functions, partly to advance republican government in which the people at large (see the "power" left to "the people" in the 10A) have a role in.

Juries, e.g., "facilitate" government. It is not merely a check. It is part of governing. Religious freedom is in part there because it was deemed necessary for a moral population. The right to petition helps to facilitate government. etc.

The rights ALSO limit power, including from popular will, but that is not all it does. Federalists discussed this. If we want to know what they "intended." FWIW. If we want to take a selective approach not based on that, we can try something else.

# posted by

Joe : 1:10 PM

Joe

Yes, I understand how the 2nd was incorporatedin McDonald. My point was that if, as Brett and Bart have said, the motivating concern behind the 2nd was the fear the new federal government would use its powers to cripple the local and state militias on its way to imposing tyranny, then that speaks more to Steven's points in Heller and McDonald than the idea that some pre-existing right to self defense was codified into constitutional law by the 2nd. It makes it particularly hard, I think, to argue for incorporation against the very state and localities for whom the right was supposed to protect. In this it might be likened to how Thomas sees the establishment clause...

# posted by

Mr. Whiskas : 1:14 PM

Brett, you're reading your own prejudices onto the beliefs of the Founders. The whole issue of "distrust" is too simplistic. The notion of a government as separate and distinct from the people was an artifact of the mostly feudal governments then existing. By creating a republic -- a government in which the interests of the people would be reflected in the policies adopted -- there was no reason to fear that the government would act contrary to the desires of the people.

Roughly, most of the Federalists, including Madison, trusted "the people". If they had created a proper republic, they believed, there was no more reason to distrust the national government than there was to distrust the states (less, per Madison in Federalist 10). In a properly functioning republic, the government IS the people.

The federalists expected "the people" to rule. In the terms of the day, they expected the rulers to come from the "better sort" (meaning themselves). Like all of us, they were willing to trust themselves with lots of power.

That's helps explain why they adopted the Constitution without a BoR. It's why many of them argued that a BoR was unnecessary. Even Madison recognized that the BoR were mere "parchment barriers".

When Madison introduced the BoR, he granted that the majority might infringe the rights of others (though he preferred structural protections to "parchment barriers"). But the BoR as adopted ended up as a structural protection, rather than directly securing individual rights.

The BoR didn't restrict "government", per se. It restricted only the federal government. State governments could have violated any of those rights (and did). That's not evidence of a concern for individual rights, it's a compromise about the distribution of power.

# posted by

Mark Field : 1:20 PM

W., Bart's 'to guarantee [of] an armed citizenry' etc. is not merely a federalist concern, but a basic individual right ala the free exercise provision Thomas does think applies to the states. Brett also noted that the people themselves, not the government, is the ultimate source of "regulating" the "militia" here.

# posted by

Joe : 1:25 PM

Mark, have you read "James Madison and the Making of America"?

# posted by

Joe : 1:31 PM

No. Is it good?

# posted by

Mark Field : 2:12 PM

Brett and Bart:

The public IS the militia. The same framers who enacted the second amendment also enacted the Militia Act, which provided that every adult male was a member of the unorganized militia and required weapons purchases.

Nothing in the Second Amendment leaves room for a militia that is unregulable by the government. The framers clearly believed that the government had the power to define the militia as broadly as it wished and to regulate ALL gun owners. What it did NOT have the right to do is prohibit gun ownership or gun possession.

Certainly the framers imagined that the armed populace would be a bulwark against tyranny, but they did not believe that the armed populace would have to be outside government regulation. Had they believed that, the Militia Act would have been unconstitutional.

# posted by

Dilan : 2:31 PM

I saw it in the library, looks decent, but have not read it yet. Thanks.

# posted by

Joe : 2:47 PM

The reviews I saw at Amazon wouldn't incline me to buy it. That said, buying books on line is really hard. I need to see them in order to get a good sense.

# posted by

Mark Field : 4:11 PM

Dilan:

The Founders believed simultaneously that the militia was under the regulatory authority of Congress and the states AND that the militia had the right to overthrow a despotic government, which would naturally include ignoring efforts by the despotic government to regulate it.

What constitutes the necessary prerequisite despotism to wage a lawful revolution against a government is left undefined.

# posted by

Bart DePalma : 4:50 PM

"Nothing in the Second Amendment leaves room for a militia that is unregulable by the government."

Nor does anything in the Second amendment leave room for regulations aimed at disarming the people, rather than arming them in an organized manner. Thought I was clear about that: The government can arm, train, and discipline a militia consisting of as many or as few people as it likes. What it can't do is prevent people, whether or not they are members of such militias, from independently arming and training themselves. From becoming a militia in everything but name.

The arsonists can organize or disband the fire department, they can't prohibit ownership of fire extinguishers or ladder trucks.

# posted by

Brett : 5:25 PM

Bart:

I think you are almot right. There is no RIGHT to overthrow the government under the Constitution. Indeed, I'm not sure the framers thought even that seditious expression was protected under the First Amendment. And levying war against the US is defined as treason in the Constitution.

However, one of the purposes of the Second Amendment was to preserve the possibility of an armed revolution. It wouldn't be LEGAL so much as it would be possible.

Brett:

I agree with what you say with one proviso-- part of the government's power to regulate the militia is to regulate (NOT prohibit) the gun ownership of militia members, which can include gun owners who would prefer not to be militia members. The Militia Act makes that clear.

# posted by

Dilan : 6:29 PM

This comment has been removed by the author.

# posted by

Joe : 7:36 PM

This comment has been removed by the author.

# posted by

Joe : 7:36 PM

Dilan, if "regulate" excludes prohibitions, then we're in agreement: The government can require you to own firearms, and train with them. What it can't do is prohibit this. Regulations can only be such as to advance a militia, and prohibitions do not do this.

# posted by

Brett : 9:15 PM

brett:

That's the distinction, as I said, though, that means that the Second Amendment is going to permit some gun control laws you aren't a real fan of (because they relate to the purpose of regulating the militia), such as registries and gun safety requirements. I can make arguments for the constitutionality of disarming violent convicts and waiting periods as well.

Bans on classes of weapons of reasonable utility to militia membership (such as the assault weapons ban and urban handgun bans) are unconstitutional. And bans disguised as regulations are also unconstitutional. Finally, some sort of right to carry (could be open or concealed) is required by the text.

# posted by

Dilan : 9:55 PM

Dilan:

Tlhe Constitution contemplates a limited government which does not infringe upon our natural rights. When a government exceeds these limits, it loses any legitimacy conferred by the document and may be removed by the People - by election if possible, by force if necessary.

# posted by

Bart DePalma : 12:04 AM

"That's the distinction, as I said, though, that means that the Second Amendment is going to permit some gun control laws you aren't a real fan of (because they relate to the purpose of regulating the militia), such as registries and gun safety requirements. I can make arguments for the constitutionality of disarming violent convicts and waiting periods as well."

I think we may largely be in agreement, then.

I'm not totally opposed to rational regulation of firearms. I merely, based on history, start out extremely skeptical. You can't get away from the fact that we've got about 90 years of history behind us of a concerted effort to abolish this particular liberty, and that most efforts to propound new regulations are coming from people who were active in that effort.

It's similar to the way racial laws have to be examined in light of the history of this country. The 14th amendment doesn't facially prohibit separate if it truly is equal, for instance. But history taught us that separate was never going to be equal, because only people who didn't want equal were proposing separate.

You have to be similarly suspicious of proposals to regulate firearms, given history on the subject. Registries, for instance, are not theoretically alien to the 2nd amendment, they might have some militia purpose. But the nation does, in fact, have a history of registries being used as a guide for confiscation. That's inescapably true, and must color the way the courts look at such proposals, if the 2nd amendment is to be regarded as a serious right.

But, requirements that people living in apartments use frangible ammo? That ranges have proper backstops? Fine with me. If that's what gun controllers had been about, instead of thinly disguised efforts to ban guns, or infringement for it's own sake, the whole subject never would have gotten to ugly.

# posted by

Brett : 6:37 AM

While still in my bunker avoiding the crossfire of this gunfight at the "Not-So-O-K-Corral," I thought of FDR's first augural speech that included:

" .. the only thing we have to fear is fear itself ... "

and considered these words some 8 decades later in the context of the Second Amendment since Heller and McDonald. Is there fear? Will a chicken in every pot, a car in every garage and a gun (or two or three ...) in the arms of every man, woman and child (over 7?) eliminate or foster fear?

# posted by

Shag from Brookline : 7:03 AM

You can't get away from the fact that we've got about 90 years of history behind us of a concerted effort to abolish this particular liberty, and that most efforts to propound new regulations are coming from people who were active in that effort.

Works such as "Gunfight: The Battle over the Right to Bear Arms in America" (Adam Winkler) note how gun regulation (repeatedly not the same thing as some "effort to abolish") goes back beyond the 1930s (the usual bete noire of certain people) and many who support various types of "new regulations" are generally supportive of a RKBA generally.

In this area as in others, there is a minority that wants to "abolish" (whatever that means; this agreement is great, but again, sorry, Dilan thought Heller, which Brett thinks is so bad, was a decent opinion) the RKBA, but many more do not.

Just as it does not "abolish" the 1A to allow campaign finance laws or "abolish" the 8A if we allow the death penalty or "abolish" the 14A if same sex marriage isn't protected. A full protection might warrant it, but it doesn't "abolish" it.

The fight is not so "ugly" because some minority has a desire to ban handguns or something. There are always minorities that try to do things of that sort. It got so ugly because guns like other things bring great cultural weight and even when there is no evidence of any ban in sight, there is a lot of shouting.

This is not unique to this subject. But, cf. let's say abortion. One political party has a platform to ban it. The Democrats don't want to ban guns. Lots of Dems are gun supporters, including someone like Leahy or Feingold, especially in certain parts of the country.

Many Dems accept certain regulations of abortions that are misguided if not unconstitutional. This doesn't mean they support a "ban" and perspective should be provided since most abortions are still protected. The remainder is serious but perspective is useful.

# posted by

Joe : 9:29 AM

"The government can require you to own firearms, and train with them. What it can't do is prohibit this."

Can it regulate the owning and training?

"Regulations can only be such as to advance a militia, and prohibitions do not do this."

Who decides what advances a militia and what does not?

"The government can arm, train, and discipline a militia consisting of as many or as few people as it likes. What it can't do is prevent people, whether or not they are members of such militias, from independently arming and training themselves."

But that was clearly only the federal government when the 2nd was adopted, not states and localities.

# posted by

Mr. Whiskas : 10:16 AM

This comment has been removed by the author.

# posted by

Joe : 10:49 AM

But that was clearly only the federal government when the 2nd was adopted, not states and localities.

Yes, this was left to state protection and states protected it in various ways. A caveat: federal law might have blocked states from banning ownership or training to the degree it inhibited federal militia service.

OTOH, if it really was some pre-existing right, states would have an obligation to protect it. Their failure to properly protect it along with other rights, including speech, led to the 14A, setting up another level of protection, it now a national privilege of citizenship.

# posted by

Joe : 10:55 AM

"Their failure to properly protect it along with other rights, including speech, led to the 14A, setting up another level of protection, it now a national privilege of citizenship."

I always thought Justice Black's argument that, as a historical matter, the 14th was intended to incorporate the BOR was considered a long shot...

# posted by

Mr. Whiskas : 3:58 PM

"as a historical matter, the 14th was intended to incorporate the BOR was considered a long shot"

I'm not an originalist but the fact that the 14A protected at least some of the rights of the BOR from state infringement, particularly those particularly important to freed slaves like a means of self-defense, and state infringement to various groups (including Republicans) was a motivating factor has some strong historical support.

Anyway, that is a side issue. As a matter of history, the 14A is now applied that way, with state failure of protection a motivating reason.

# posted by

Joe : 4:16 PM

No, there's good evidence that the 14th was intended to incorporate the BoR. At the very least, Congressman Bingham expressly said that. Doesn't prove that all the ratifiers had that intent, but it's pretty important.

If one is an originalist.

# posted by

Mark Field : 4:17 PM

Tlhe Constitution contemplates a limited government which does not infringe upon our natural rights. When a government exceeds these limits, it loses any legitimacy conferred by the document and may be removed by the People - by election if possible, by force if necessary.

I'm not a fan of natural rights, for a very simple reason-- I think law only works when it constrains, and since nobody in human history has ever said "I think the government should do this, but since it violates the laws of nature we can't do it", natural law doesn't function as law.

Having said that, though, I think you miss the point of the Constitution. The Constitution, unlike the Declaration of Independence, rejects natural law and is a purely positivist document. Otherwise, it could not contain a definition of treason. The Constitution makes it perfectly legal for the government to arrest traitors even though the traitors believe sincerely that they are legitimately rebelling against a government that tramples their rights.

The Second Amendment is consistent with that. Armed revolution is left as AN OPTION under the Constitution, but it is not made legal. Indeed, it is expressly made ILLEGAL. Dealing with this apparently contradiction is something that I have found "natural law" types have a great deal of trouble with, but it's written in there.

# posted by

Dilan : 4:41 PM

Brett:

I have no problem with some sort of skepticism of gun regulations, as long as it is historically grounded. In other words, in the end, I would imagine giving challengers a chance to prove that a registration scheme was really a pretext to ban guns (for instance, one could characterize the D.C. scheme invalidated in Heller that way). But if the courts found it was not pretextual, a registration scheme would be constitutional.

The question we SHOULD be asking (and Heller leaves the law open for this sort of analysis) is whether the challenged regulation is consistent with the notion of an orderly armed citizenry that the Second Amendment contemplates. I think that sort of analysis is much closer to the text and history of the Second Amendment then simply picking a level of scrutiny to apply or grandfathering in current regulations.

# posted by

Dilan : 4:48 PM

I'm sure there is some evidence of that intent from some involved in ratification, otherwise Black's dissent in Adamson would have been much shorter...But there's quite a bit of lack of clarity on that issue, and several pretty important things that make one doubt the intent to incorporate was widespread (e.g., states getting rid of their own grand jury requirements shortly after the adoption of the 14th, the Twitchell case heard shortly after ratification where the SCOTUS decline to hear the 6th Amendment claim from a state court, and the oddity of adopting the due process clause of the 5th in an Amendment which had its own due process clause).

# posted by

Mr. Whiskas : 5:52 PM

This comment has been removed by the author.

# posted by

Joe : 9:08 PM

But there's quite a bit of lack of clarity on that issue

We didn't say it was conclusive. Such is the limits of originalism and we aren't originalists anyway. But, if Bingham is not to be respected, perhaps Madison's words shouldn't get so much press either. The incorporation of the Grand Jury Clause wasn't the main concern or anything and such things wasn't the focus of the debates. But, Bingham and others did think "privileges and immunities" of citizenship meant various things, including the rights found in the 1st and 2nd Amendments, habeas corpus, etc.

Self-defense, including by firearm, was repeatedly cited as basic priviliges of citizenship, including in by those against ratification. Ironically, Taney's passing comment in Dred Scott that keeping and carrying a gun (which might be different from a RKBA though some scholars suggest the 2A had an individual rights gloss by this point) is a privilege of national citizenship only underlines the point. And, history showed how the 14A was soon respected in breach, even in respect to protections it clearly should have entailed.

and several pretty important things that make one doubt the intent to incorporate was widespread (e.g., states getting rid of their own grand jury requirements shortly after the adoption of the 14th

This is a minor point vis-a-vis a "pre-existing right" such as speech, religion or arms carrying. Also, as a procedural due process requirement, it quite arguably can be seen as of a different caliber than such privileges, and more open to development. Justice Harlan, who we now respect for Plessy and the Civil Rights Cases, fwiw, thought it was incorporated (Hurtado v. CA).

the Twitchell case heard shortly after ratification where the SCOTUS decline to hear the 6th Amendment claim from a state court

The Slaughterhouse Cases suggests the limits to SCOTUS clarity as to what the 14A means. But, it is not clear from the opinion that the 14A itself was discussed in that case -- the amendment isn't mentioned. The 5th and 6th Amendments are directly referenced. The 14A Due Process Clause must have some content in criminal cases. It is curious, if the 14A was at stake, this isn't mentioned.

and the oddity of adopting the due process clause of the 5th in an Amendment which had its own due process clause

"Due process of law" is now seen as requiring various provisions of the Bill of Rights as an independent manner -- confrontation of witnesses, for instance, or being informed of the case against you -- so does this mean the provisions cited in the original BOR are redundant?

The 14A took certain basic categories that even people of the era realized had some possible overlap (this seen in Bolling v. Sharpe -- there is no Equal Protection Clause as applied to the federal government; it is seen as an aspect of substantive due process) but they weren't such sticklers. This is seen as early as the Slaughterhouse Cases, where the dissent so such an overlap and antebellum Republican philosophy, where both equal protection and substantive due process promoted anti-slavery ends.

Anyway, my focus would be that the language was purposely chosen for its flexibilty and over the last 145 years, incorporation largely occurred except for outlier cases. That is the "history" that matters most to me (and probably Mark).

# posted by

Joe : 9:30 PM

"so does this mean the provisions cited in the original BOR are redundant"

I think it means that our current understanding of 'due process of law' as the BoR was not the original understanding (and I'm not sure that's what it means now [see in re Winship]).

Think of it this way: if the 14th was meant to incorporate the BoR, why would it explicitly call for due process when due process was in the BoR?

"Self-defense, including by firearm, was repeatedly cited as basic priviliges of citizenship, including in by those against ratification"

I have to wonder (and I don't know), how many of those quotes might have dealt with laws that barred blacks specifically from bearing arms (and hence would be dealt with by the equal protection clause).

"a minor point vis-a-vis a "pre-existing right" such as speech, religion or arms carrying"

I dunno, I think the English, which is what the colonists were before the revolution, thought there was a right to a grand jury (a hard fought right going back to the Magna Carta-that's pretty 'pre-existing,' no?).

Have you read Twitchell? Here it is. It is an 1868 case handed down shortly after the 14th was ratified. It pretty clearly said the 5th and 6th Amendments applied to the feds only. That seems like a strange holding for the court of a nation that had just adopted an Amendment understood as applying the BoR to the states.

http://supreme.justia.com/cases/federal/us/74/321/case.html

# posted by

Mr. Whiskas : 9:59 PM

The argument for incorporation relies on the statements of the principal sponsors of the 14th A and other supporters. That's not definitive, of course, but by that logic neither is the Federalist (as Joe noted).

The incorporation was intended via the PorI clause. The reason that the 14th A contains the EPC and DPC clauses is that the PorI clause applies only to citizens. The other two clauses apply to everyone, citizen and non-citizen alike. There's bound to be some overlap for that reason, but it doesn't seem insurmountable.

Your better argument is the reaction of the Court. It was notably unfriendly to the idea of incorporation for quite some time after 1868. That's hard to explain if there was a general understanding of incorporation.

You're right that disarmament of Southern blacks (and that did happen) could have been handled under the EPC. So could lots of other things as well. They weren't, but that hardly means the Court got it right in that failure.

The weird part of the militia clause debates is that the historical evidence is quite strong that there was no individual right protected in 1787. However, it's equally strong that such a right was considered to exist in 1868. That conflict, and the cumbersome nature of the text of the 2A when incorporated, make it hard to judge what was protected.

# posted by

Mark Field : 10:39 PM

I think it means that our current understanding of 'due process of law' as the BoR was not the original understanding

That's evident, but the question is if 1791, "due process of law" did not include a single of the specific provisions found in the fourth to eighth amendments. This is far from evident and state courts found such and such right (such as takings of property w/o compensation) as protected by broad due process protections. Special caution led the BOR to enumerate certain specific rights, leaving others to catchall provisions such as "due process of law" or the 9A.

if the 14th was meant to incorporate the BoR, why would it explicitly call for due process when due process was in the BoR?

Bingham was the Madison of the 14A and said it incorporated the BOR. Why you don't think this means much is unclear to me.

The Privileges or immunities of citizenship was said to include various rights cited in the Constitution, Bingham et. al. including the BOR. The 14A Due Process Clause provided an additional baseline protection to "persons" which went beyond such "citizenship" (aliens, e.g., might have less rights to guns) rights. Also, the three terms -- privileges or immunities, equal protection and due process had a certain symbolic cachet, overlapping protections that should cover everything necessary.

I have to wonder (and I don't know), how many of those quotes might have dealt with laws that barred blacks specifically from bearing arms (and hence would be dealt with by the equal protection clause).

The rights of the 14A applied to everyone -- they were rights of "citizens" or "persons." Freedom meant rights for all, not just blacks. As noted, one group cited were (white) Republicans -- they were attacked for their speech, they needed guns for protection, etc.

I dunno, I think the English, which is what the colonists were before the revolution, thought there was a right to a grand jury (a hard fought right going back to the Magna Carta-that's pretty 'pre-existing,' no?).

There is no "jury" right in nature. It is a creation of society. "Pre-existing" here concerns natural rights -- like speech, religion, self-defense -- not rights that are based in society, even those around for a long time.

Have you read Twitchell?

I summarized the case after reading it which allowed me to say what was covered by it. The opinion does not mention the 14A. The ruling was handed down mere months after the 14A was ratified. It is not shocking that the defense did not deal with a novel issue that the 14A was incorporated; many in the era in fact was not very familiar with Barron v. Baltimore or thought it was wrongly decided. Finally, the DPC of the 14A, as I said, has some content, so it is passing strange that if the ruling did cover the 14A that it ignored the issue. Cf. Hurtado v. CA which later noted the clause does provide certain basic protections in criminal cases.

Anyway, I don't find the whole matter that important in the content of this debate. We aren't going to turn back decades of precedent to put the incorporation genie back in the bottle and using the principles found there, the 2A (at least for Brett, Bart and Dilan -- some trio) is not merely some federalism provision. It applies to state action.

# posted by

Joe : 10:54 PM

joe:
"the question is if 1791, "due process of law" did not include a single of the specific provisions found in the fourth to eighth amendments"

Don't you have the same problem there (why would the 1791 ratifiers put the 4th, 5th and 6th in there explicitly if the due process of the 5th covered them?)?

"Bingham was the Madison of the 14A and said it incorporated the BOR. Why you don't think this means much is unclear to me"

I don't think what Madison said is totally dispositive of the 1791 portions of the Constitution. It's important, sure, but not the end of the story.

"The rights of the 14A applied to everyone"

I think you're misunderstanding me. What I'm saying is that if we find a quote by a ratifier saying "this amenmdment will give blacks in the South the right to bear arms again" and the laws in the South barred only blacks from bearing arms, then that quote could just as easily be referring to the EP clause as any incorporation.

""Pre-existing" here concerns natural rights"

It does? Is that what Scalia was saying by pre-existing? He's a legal positivist from what I remember.

"defense did not deal with a novel issue that the 14A was incorporated"

The appeal of the defendant was explicitly based on asking for 5th and 6th incorporation. While it's true the Court doesn't mention the 14th they were asked explicitly to apply the 5th and 6th to the states and flatly refused, and this after passage of the 14th, a pretty odd thing to do if the nation had just passed an Amendment which was generally understood to incorporate those amendments and more.

Mark:

I get the part about the P&I clause applying to citizens and the other two in the 14th not. I think my point was different: why, if the 14th was meant to incorporate the BoR, would they have put a due process clause in it at all as the BoR already contains such a clause? It seems strange, doesn't it?

# posted by

Mr. Whiskas : 5:36 PM

"I think you're misunderstanding me. What I'm saying is that if we find a quote by a ratifier saying "this amenmdment will give blacks in the South the right to bear arms again" and the laws in the South barred only blacks from bearing arms, then that quote could just as easily be referring to the EP clause as any incorporation."

The quotes about the right to bear arms actually refer expressly to incorporation (via the PorI clause).

Turning now to your question to me, it's a bit hard to resurrect Bingham's mindset because the Court has gone in such a radically different direction. As best I understand it, he reasoned like this:

He needed to overrule Dred Scott. He did that in the first 2 clauses of the 14A. By the first he made all blacks citizens, contrary to Taney's ruling that they weren't.

By the PorI clause, he created a form of equal protection among citizens for the exercise of certain rights. That clause declares that every citizen shall have certain PorI. It's true that the original Constitution said this, but the 14A was going to give Congress the ability to legislatively enforce the rights, so he said it again.

Then he had to decide what rights were included. In the terms of that time, those included were "civil" rights as opposed to "personal" rights (e.g., marriage) or "political" rights (e.g., voting). In his speeches, Bingham referred to the BoR as among the rights incorporated.

Because the rights were incorporated via the PorI clause, they only protected citizens. There needed to be another clause to protect all persons, citizen or not, from having basic rights violated. The reason is that Barron v Baltimore had held that the BoR only applied against the federal government, not the states. Thus, there was a potential gap: all persons were protected against tyranny from the federal government, and citizens now were protected from the states, but the states might still violate certain basic rights of those who were not citizens. The DPC and EPC thus imposed on the states the same limits which already applied to the federal government.

# posted by

Mark Field : 6:37 PM

Don't you have the same problem there (why would the 1791 ratifiers put the 4th, 5th and 6th in there explicitly if the due process of the 5th covered them?)?

The BOR were released for ratification with this statement: "The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added." The BOR was in part a means to re-assure and remind regarding the limits of the federal government. Certain protections of special concern were expressly enumerated, the rest left for further determination by catchall protections like the DPC and the 9th Amendment. This doesn't mean that, e.g., being informed of the charges would not be covered even without the express enumeration, any more than a reference to rights retained would not imply that something like free exercise of religion is only there if enumerated.

I don't think what Madison said is totally dispositive of the 1791 portions of the Constitution. It's important, sure, but not the end of the story.

Madison is cited as an example since you put stock on what was understood at the time. If that is the test, setting forth the prime backer of something is fairly important. Bingham isn't the only one who listed the BOR as "priviliges or immunities" of citizens anyways or at least, as I said, certain specific protections such as the right to bear arms for self-defense. Of course, there was no "one" original understanding, which partially is why I'm not an originalist. How this works in reality is that the open-ended terms develop specific meanings over time. Incorporation except for the grand jury clause (even the 3A, in the one case where they found a use for it) is how that worked.

I think you're misunderstanding me. What I'm saying is that if we find a quote by a ratifier saying "this amendment will give blacks in the South the right to bear arms again" and the laws in the South barred only blacks from bearing arms, then that quote could just as easily be referring to the EP clause as any incorporation.

And, as I said, the framers were not just concerned with blacks -- they were concerned with rights for all, including for white Republicans, such as those who went South in the past or were there now under Reconstruction governments. As Mark notes, the P/I was often the pt.

# posted by

Joe : 9:23 PM

It does? Is that what Scalia was saying by pre-existing? He's a legal positivist from what I remember.

In Troxel v. Granville, he said that he accepts the idea of pre-existing and/or natural rights, but in general, does not think the courts have the power to protect them via substantive due process, the 9A or some other open-ended provision. However, in his view, the 2A (like the 1A as to speech and religion) specifically cited the right, so that makes it okay here. Anyway, Scalia is but one school of thought, and "pre-existing" in the mind of many others includes various open-ended protections in the Constitution, including perhaps the rights cited in the 9A.

The appeal of the defendant was explicitly based on asking for 5th and 6th incorporation. While it's true the Court doesn't mention the 14th they were asked explicitly to apply the 5th and 6th to the states and flatly refused, and this after passage of the 14th, a pretty odd thing to do if the nation had just passed an Amendment which was generally understood to incorporate those amendments and more.

So, we are supposed to somehow infer that it was applying the 14A, even though it is not actually cited, and I repeat, the DPC (see, Hurtado v. CA) STILL (taken your position as a given) was understood to provide some basic protections, but that too was not addrsesed at all? This is just not enough to rely on. There was no firm "generally understood" single understanding of the 14A & I didn't say it was crystal clear that each and every provision, including each and every criminal protection, was incorporated.

Lower courts, when the matter actually was pled, actually did include some holdings that recognized incorporation, including the power of the federal government to protect the rights via criminal prosecutions. Then, especially after the Slaughterhouse Cases, a 5-4 case that many now deem wrongly decided, and other conservative rulings occurred that narrowly interpreted the document, repeatedly denying blacks basic protections in the process.

Again, I really don't care on some level, since what was understood in 1868 isn't what we in real life go by.

# posted by

Joe : 9:24 PM

Mark:
"The quotes about the right to bear arms actually refer expressly to incorporation"

Thanks, I've long wondered about that. Can you recommend a source that would cover that and Bingham's intentions?

"There needed to be another clause to protect all persons, citizen or not, from having basic rights violated"

But if the P&I clause incorporated the 5th to the states, then these persons would be protected by the due process of the 5th (which uses the term "person" not citizen).

Joe

First, thanks for the cite of Troxel and that discussion of Scalia and pre-existing rights. I'll have to go back and read that and Heller.

"Certain protections of special concern were expressly enumerated, the rest left for further determination by catchall protections like the DPC and the 9th Amendment"

I get that, but I'm not sure you addressed the problem. If due process, as guaranteed by law, was understood to require the provisions of the 4th, 5th and 6th Amendment, then why enumerate those Amendments? It's redundant, isn't it? And of course even our current incorporation doctrine doesn't square with that idea (the grand jury clause of the 5th has not been incorporated).

"This is just not enough to rely on"

Well, maybe it alone is not dispositive, but when the US Supreme Court is expressly asked immediately after passage of the 14th Amendment to apply the 5th and 6th Amendment to a state class and it declines citing Barron that is really hard to square with the idea that it was generally understood that the 14th had just incorporated the BoR, isn't it?

# posted by

Mr. Whiskas : 10:02 PM

Jack Balkin has a general discussion in Living Constitutionalism. Akhil Amar does also in America's Constitution.

As for your question, I don't have a definitive answer, but I suspect it's that Bingham et al. saw incorporation as bringing in the right to due process only. The terminological conflict between citizens and persons would otherwise be confusing. But that's a guess.

# posted by

Mark Field : 10:54 PM

Akhil Amar also had some good stuff on this subject, including on the 2A, in "The Bill of Rights." Of course, scholars disagree here.

---

I get that, but I'm not sure you addressed the problem. If due process, as guaranteed by law, was understood to require the provisions of the 4th, 5th and 6th Amendment, then why enumerate those Amendments?

There was no agreement on what specific ones were covered, which was a reason for specifically enumerating some, but that doesn't mean none of them were covered under the due process alone because they were enumerated. The same applies to the 9A -- it recognized there were rights not enumerated. But, some particularly important to people were enumerated for special security.

It's redundant, isn't it?

When things are important, we have redundant protections. I realize there is a rule of interpretation that tries to find an independent meaning for every provision, but the rule applies here. I don't think YOU addressed the problem otherwise. You are left with the assumption that every single provision isn't necessary for "due process" because otherwise it would be redundant, including being informed of the charges against you in a criminal case.

And of course even our current incorporation doctrine doesn't square with that idea (the grand jury clause of the 5th has not been incorporated).

Constitutional application is rarely totally neat but this doesn't work -- our incorporation doctrine is based on nearly every procedural provision being necessary for due process, even with the redundancy issue you for some reason find so problematic. So, I don't know what "idea" you are talking about. Yes, there was no agreement every jot of procedural protections were protected (though some thought so, including Justice Harlan, who I guess we rely on when we want to rely on him). I'm not the stickler here.

Well, maybe it alone is not dispositive, but when the US Supreme Court is expressly asked immediately after passage of the 14th Amendment to apply the 5th and 6th Amendment to a state class and it declines citing Barron that is really hard to square with the idea that it was generally understood that the 14th had just incorporated the BoR, isn't it?

I don't know why you are not addressing the point that even w/o incorporation that if the 14A was being examined here that the Due Process Clause would have some content, or that it would at least be a reasonable argument to address, it being accepted as the law a decade later. And, that wasn't addressed in the opinion.

I already said that there was no single "generally understood" position on such issues, especially mere months after it was ratified. And, in cases where the matter was pled, federal judges, including four justices a few years later, DID give the amendment a broad reading, including some that incorporated the BOR. Lawyers in any single case can miss the boat. Why these cases mean less to you is unclear me.

# posted by

Joe : 9:26 AM

"There was no agreement on what specific ones were covered"

Well, that kind of determines something important for an originalist, that it wasn't commonly understood that the DPC of the 5th included the rights in the 5th, 6th and 8th. In fact, while I can think of cases that apply the rights in the 5th, 6th and 8th to the states via the DPC of the 14th, I can't think of cases examining federal statutes concerning the enumerated rights of the 5th, 6th and 8th that were addressed in terms of the DPC of the 5th. Our case law seems to treat any such case as, well, a 5th, 6th or 8th Amendment case, not a 5th Amendment DPC case. The DPC requires things other than those amendments, but not what's in them, those amendments themselves require that.

"but the rule applies here"

I don't get it, if the rule applies here then it should be read in the non-redundant way, right?

"I don't know what "idea" you are talking about"

The idea that the due process clause of the 5th Amendment requires the rights guaranteed in the 5th, 6th and 8th Amendments. Even when dealing with the DPC of the 14th applied to the states this is not true, since some rights in those amendments, such as the grand jury right, is not incorporated via due process.

"the Due Process Clause would have some content"

Of course it has content. The DPC clause of the 5th was used to invalidate federal legislation on grounds other than found in the other rights of the 5th, the 6th and the 8th (for those cases the courts used, well, the provisions in those amendments, not the DPC clause of the 5th). Even with the DPC of the 14th, which has been thought to apply most of the BoR to the states it certainly requires rights other (above and beyond) those (e.g., that each element of the crime be proven beyond a reasonable doubt).

"Why these cases mean less to you is unclear me"

These cases don't mean less to me, in all of them incorporation was rejected. I just find it especially telling that a mere few months from ratification of an amendment that you claim was generally understood to be incorporating the BoR to the states the SCOTUS would flaty refuse to, when asked to, apply the 5th and 6th Amendment to a state statute.

# posted by

Mr. Whiskas : 4:28 PM

Well, that kind of determines something important for an originalist, that it wasn't commonly understood that the DPC of the 5th included the rights in the 5th, 6th and 8th.

It wasn't understood that each and every one was included but your redundancy point means that none them could be. And, by the time the 14A was ratified, it was generally understood at least some of them were necessary for due process.

In fact, while I can think of cases that apply the rights in the 5th, 6th and 8th to the states via the DPC of the 14th, I can't think of cases examining federal statutes concerning the enumerated rights of the 5th, 6th and 8th that were addressed in terms of the DPC of the 5th. Our case law seems to treat any such case as, well, a 5th, 6th or 8th Amendment case, not a 5th Amendment DPC case. The DPC requires things other than those amendments, but not what's in them, those amendments themselves require that.

The specific listing of rights make it logical for the courts to use the specific rights in question, but even there, the rights overlap sometimes as seen in punitive damages (due process/8A implications) and the death penalty (due process/8A). This doesn't mean that "due process" only requires being informed of the charges because that is specifically listed. Finally, "due process" and other terms developed in meaning. For instance, legal scholars note the idea of of substantive due process is more widely accepted in 1868. So, an originalist might say the 14A DPC has more content than the 5A.

I don't get it, if the rule applies here then it should be read in the non-redundant way, right?

The "rule" is that when things are important, we sometimes have redundant protections. I cited another rule that each clause should have independent meaning, but we shouldn't apply it so literally it ignore the first rule.

The idea that the due process clause of the 5th Amendment requires the rights guaranteed in the 5th, 6th and 8th Amendments. Even when dealing with the DPC of the 14th applied to the states this is not true, since some rights in those amendments, such as the grand jury right, is not incorporated via due process.

The grand jury right is the ONLY right currently not applied to the states though (and there is currently some pushback on this) we also don't protect the petit jury fully. Again, your redundancy claim would require none of them.

the Due Process Clause would have some content

The point is that it has content but the opinion you cited didn't talk about it, which suggests to me that the opinion did not interpret the 14A.

These cases don't mean less to me, in all of them incorporation was rejected.

This isn't true. Lower courts did in certain cases hold that the 14A incorporated rights found in the BOR, upholding federal prosecutions that addressed violations in relation to that, including current and future justices that were "riding circuit." The USSC eventually rejected this, including the now infamous U.S. v. Cruishank case involving 1A and 2A rights, but as with cases that denied blacks rights, we now see the cases as wrongly decided in various cases.

I just find it especially telling that a mere few months from ratification of an amendment that you claim was generally understood to be incorporating the BoR to the states the SCOTUS would flaty refuse to, when asked to, apply the 5th and 6th Amendment to a state statute.

I don't think the case actually addressed the 14A and I do not claim there was one "generally understood" understanding, especially so soon, just like there was not a general understanding of the 1A in 1791. But, I and Mark Field cited sources originalists would rely on.

# posted by

Joe : 10:19 AM

"And, by the time the 14A was ratified, it was generally understood at least some of them were necessary for due process"

Well, sure, I can see the argument that the due process clause of the 14th might have been thought to include some of the provisions of the BoR, that's standard incorporation theory. I've always thought that theory best rests on practical, not historical grounds (due process has to mean something, and one way to make it mean something definite and not just the whim of justices is for it to mean the BoR). But I was talking about the DPC of the 5th Amendment. Because of the redundancy issue I seriously doubt the ratifiers of the BoR thought the DPC of the 5th included the rights in the 5th, 6th and 8th, and I also think courts should not read it that way for the same reason.

"So, an originalist might say the 14A DPC has more content than the 5A."

I agree here.

"The "rule" is that when things are important, we sometimes have redundant protections"

But not redundant provisions. When reading a legal document you're supposed to try to read it as if its not redundant. There's a good reason behind that: because it's very odd to be redundant in that way.

Think of it this way. The reading you are claiming supposes the Founders said:

1. You have to the right to due process, which includes the right to an attorney, the right not to incriminate yourself, and the right to not have cruel and unusual punishment.
2. You also have the right to an attorney
3. You also have the the right not to incriminate yourself
4. And you have the right to not have cruel and unusual punishment

If you showed that to someone they would say "huh? Why did they write 2-4 when they had all that in 1?"

"your redundancy claim would require none of them"

I think I may have stumbled upon where we might be missing each other: I could have sworn you said the DPC of the 14th AND the 5th were understood to include the provisions of the other parts of the BoR. For the reasons I gave above I can see the 14th, but not the 5th. Here you seem to be plainly talking about the 14th, so maybe you think I was talking about the 14th the whole time?

"Lower courts did in certain cases hold that the 14A incorporated rights"

You actually provided my response yourself "The USSC eventually rejected this" (and not even 'eventually' but, if you count Twitchell, immediately they did so)

"I don't think the case actually addressed the 14A"

I'm not sure it directly did, but again, you have an appellant in a state case telling the SCOTUS that his 5th and 6th Amendment rights were vioated and the court saying "no, that only applies to the feds." That seems incredibly odd if there was a general understanding that the 14th had just made those rights applicable to the states.

# posted by

Mr. Whiskas : 8:45 PM

My hunker in the bunker to avoid the crossfire at this gunfight at the "No-So-O-K-Corral" has permitted me to read Jack and Sandy's "The Dangerous Thirteenth Amendment," which provides a lot of history (legal and otherwise) on the differences between chattel slavery and other forms of slavery as understood by the colonists in their rebellion against England. Jack and Sandy point out that the 13th Amendment does not include the word "chattel," exploring historically the concepts of non-chattel slavery going back to colonial days. So, they posit, why should slavery in the 13th Amendment be limited to chattel slavery; that a broad reading of the 13th Amendment in the manner of the 14th Amendment could address other forms of slavery and involuntary servitude as well under Section 2 of the 13th Amendment. Jack and Sandy describe well the abolitionists' dilemma regarding chattel slavery and other forms of slavery. They even make a tie-in to ACA and income inequality. The article is quite provocative and I look forward to critiques (elsewhere than in this thread) as Jack and Sandy have hit upon a subject that calls for more discourse. The article runs 44 pages with very interesting footnotes. Another point made by Jack and Sandy is that the 13th Amendment is not confined to state action as is the case with the 14th Amendment, giving great power to Congress under Section 2 of the 13th Amendment. Perhaps the current student loan situation might be considered peonage under a broad construct of the 13th Amendment that Congress might address.

# posted by

Shag from Brookline : 7:36 AM

I was talking about the DPC of the 5th Amendment. Because of the redundancy issue I seriously doubt the ratifiers of the BoR thought the DPC of the 5th included the rights in the 5th, 6th and 8th, and I also think courts should not read it that way for the same reason.

So, the average ratifier in your opinion did not think informing people of the charges against them was basic to due process full stop and we know that since the rule of redundancy was so important to them that they were total sticklers.

This appears to me to be an impractical desire for neatness. I think the evidence, to the degree we can tell, is that the ratifiers disagreed on what "due process" specifically meant, probably thinking at least some of the enumerated protections were covered, but disagreeing among themselves on what ones. So, they listed some to make things crystal clear, but provided a catchall provision -- one that would develop in meaning over time, just as "due process" had since the 13th Century -- a safety value. I don't think originalism should bound court interpretation but it is perfectly logical to use specific provisions instead of open-ended ones when possible, though even there, overlap between the provisions, should not result in neatness overriding proper protection to individuals.

But not redundant provisions. When reading a legal document you're supposed to try to read it as if its not redundant. There's a good reason behind that: because it's very odd to be redundant in that way.

There are various legal concepts that provide broad principles for which the specifics are unclear. The law is repeatedly of this sort, thus the need for litigation for clarity. In various cases, new laws are passed to provide various specifics, to clearly show that the more open-ended provisions at least mean x, y and z. For instance, a law against torture then is followed by some specific examples. The open-ended ban is still there. What it means is debated. It is reasonable to think it blocked "x" even without a separate law being passed. Take the ERA. Splits feminists. Some think the EPC itself covers women. Why have an ERA? It's redundant. Others note there is debate there, plus it would be a symbolic expression of gender equality. Is the 1A the only reason freedom of religion is a protected liberty? Or is it a special reminder? After all, many Federalists thought the whole thing was redundant. As I quoted above, one major point of the BOR was to be a special reminder.

# posted by

Joe : 2:39 PM

you said the DPC of the 14th AND the 5th were understood to include the provisions of the other parts of the BoR.

Anyway, my overall stance is that there was disagreement in 1791 on what "due process" meant, specific provisions were enumerated as a sort of baseline (and thus becoming clearly necessary for due process in federal cases) while "due process" was a catchall provision whose independent content would develop over time, case by case.

You actually provided my response yourself "The USSC eventually rejected this" (and not even 'eventually' but, if you count Twitchell, immediately they did so)

A case where the 14A was not even mentioned is used, we skip over the cases where it was (in the first few years) and jump to one where the USSC eventually dealt with it in the mid-1870s, which is now seen as wrongly decided though why they did so for historical reasons can be cited. Do we ignore the acceptance of miscegnation laws [less than a decade later] by the USSC too or can we just pick and choose precedents as we desire?

I'm not sure it directly did, but again, you have an appellant in a state case telling the SCOTUS that his 5th and 6th Amendment rights were vioated and the court saying "no, that only applies to the feds." That seems incredibly odd if there was a general understanding that the 14th had just made those rights applicable to the states.

I said more than once that: "I do not claim there was one "generally understood" understanding, especially so soon, just like there was not a general understanding of the 1A in 1791." What some single opinion obliquely decided by itself doesn't tell us much. It is "incredibly odd" that if the opinion intended to decide this matter -- which would refute what the Madison of the 14A and others said it meant (important comments, even if not determinative) -- it would do so in such an oblique way, in a way that doesn't even say that it is deciding what the meaning of the DPC of the 14A is, which has to be relevent if they intended to do that, since it has SOME content that protects criminal defendants. And, since you agreed that the term might be something else in 1868 than in 1791, this can include some specific provisions of the BOR. The opinion, however, did not address the issue "directly" at all. Opinions repeatedly do that -- they decide narrow things, even if the result is that limiting itself to what was actually pled leaves important matters open.

# posted by

Joe : 2:39 PM

"So, the average ratifier in your opinion did not think informing people of the charges against them was basic to due process"

Isn't that in the 6th Amendment? Are cases in which someone thinks they have not been informed of charges handled under the 6th or the DPC of the 5th?

"it is perfectly logical to use specific provisions instead of open-ended ones when possible"

Sure, but it's not logical to use specific provisions and then broader ones that are understood to include those specific ones.

"There are various legal concepts that provide broad principles for which the specifics are unclear"

I get that it, what I don't get is that if it WAS clear that the provisions of the 5th, 6th and 8th were part of the due process promised by the DPC of the 5th then it made no sense to list them specifically again (according to your claim). I don't think your ERA example is apt as the entire reason to adopt the ERA was because many were disatisfied with courts NOT treating gender equality under the EPC as they were the mentioned things (so the need to supplement EPC).

"many Federalists thought the whole thing was redundant"

They thought it was unecessary, not redundant, and that's a big difference. Their claim wasn't "the Constitution already protects these rights" it was "the Constitution is one of enumerated powers and if it ain't in here then they can't do it, so since messing with these rights ain't in here, we don't need a BoR." That's not the same as saying "that stuff is already covered in here."

"which is now seen as wrongly decided though why they did so for historical reasons can be cited"

But cases close to ratification can tell us what the understanding was at that time, even if the holding of those cases are later reversed.

"if the opinion intended to decide this matter...it would do so in such an oblique way"

I grant you it's odd either way, but I think it's more odd they did this if an Amendment had just passed generally understood to have just incorporated the very amendments the appellant was asking be applied to his state case. They recited the Barron understanding that the BoR only constrainst the feds, something that makes more sense if the 14th was not generally considered to have incorporated the BOR...

# posted by

Mr. Whiskas : 3:04 PM

Isn't that in the 6th Amendment? Are cases in which someone thinks they have not been informed of charges handled under the 6th or the DPC of the 5th?

I don't know why you won't answer the question. Given your concern for redundancy, was there a general understanding in 1791 that "due process of law" in criminal cases could entail not informing people of the charges against them? I asked you this repeatedly since if the answer is "yes, they did think so," it would seem the provision might be somewhat redundant, but redundant protections occur. State constitutions, e.g., said certain open-ended rights were protected (like a sort of 9A statement), then also specifically listed some.

it's not logical to use specific provisions and then broader ones that are understood to include those specific ones

When there is some general agreement "x" is protected but some debate over the specifics, it could be reasonable to include everything, the final result agreed upon, exactly how you get there not. Anyway, I can say "okay" here. I'm okay with the general idea.

I don't get is that if it WAS clear that the provisions of the 5th, 6th and 8th were part of the due process

I said there was a debate over specifics, thus the value of making a specific list, leaving a safety valve ("due process") for ones they might have missed or the test of time (case by case) would determine is necessary. The list is there for various reasons, including to protect things most agreed upon (e.g., the right to free exercise of religion) in bold type, highlighting the importance of such liberties. This is the case even if there was some possible overlap as Mark Field noted in reference to the 14A.

I don't think your ERA example is apt as the entire reason to adopt the ERA was because many were disatisfied with courts NOT treating gender equality under the EPC as they were the mentioned things (so the need to supplement EPC).

There were various reasons for adoption. The discussion noted even those who already thought that 14A covered sex/gender supported the ERA because it would provide another layer of protection, even though the 14A itself alone could do the trick. But, important liberties like one's life in an airplane, warrant possibly redundant protections sometimes. As with the DPC, some disagreement over the proper reach of a term made it helpful to specifically clear things up in a way that would satisfy even the doubters. Also, it would provide a basic statement of equality that had independent value. This would be the case if even a majority already thought that the EPC covered sex/gender.

# posted by

Joe : 5:10 PM

They thought it was unecessary, not redundant, and that's a big difference. Their claim wasn't "the Constitution already protects these rights" it was "the Constitution is one of enumerated powers and if it ain't in here then they can't do it, so since messing with these rights ain't in here, we don't need a BoR." That's not the same as saying "that stuff is already covered in here."

Actually, Hamilton in The Federalist did say that the Constitution protected liberties w/o a BOR. Also, it tends to amount to the different sides of the same coin. The 1A speaks of the limits of Congress -- what Congress cannot do. If the Constitution didn't give Congress said powers in the first place, saying so specifically is to me a correct use of "redundant." I think we are debated trivialities here though.

But cases close to ratification can tell us what the understanding was at that time, even if the holding of those cases are later reversed.

Yes, thus the cases I cited, which actually discussed the 14A, not at best, perhaps, implicitly.

generally understood to have just incorporated the very amendments the appellant was asking be applied to his state case

"I do not claim there was one "generally understood" understanding, especially so soon, just like there was not a general understanding of the 1A in 1791." The fact some single lawyer or law firm did not make such and such an argument is pure guesswork. To repeat myself again, it might be some thought that only certain BOR provisions, such as those tied to natural rights like the 1A, were incorporated. So, given some Republicans were no fan of Barron anyhow, the best bet was to hope the SC overruled Barron as applied to other provisons. I don't know. I still am not going to use a ruling that doesn't even explicitly reference the 14A to tell me what the general understanding was at the time. The USSC didn't do that great of a job with that a few years later in the Slaughterhouse Cases.

They recited the Barron understanding that the BoR only constrainst the feds, something that makes more sense if the 14th was not generally considered to have incorporated the BOR.

Barron v. Baltimore explained how the BOR did not apply to the states because it was a restraint on federal power. The 14A is largely a restraint of state power. Along with the fact that the DPC of the 14A has some content to help criminal defendants, but the opinion did not discuss it, this suggests to me that the opinion did not deal with the 14A incorporation issue.

# posted by

Joe : 5:11 PM

Joe

"was there a general understanding in 1791 that "due process of law" in criminal cases could entail not informing people of the charges against them"

I think the fact that right was expressly enumerated in the 6th Amendment makes it logical to conclude that they understood that violations of that right would be dealt with as violations of the 6the Amendment rather than as violations of the DPC of the 5th. And as I said, unless you can point me to some otherwise, that's exactly how our caselaw has treated it, right?

"State constitutions, e.g., said certain open-ended rights were protected (like a sort of 9A statement), then also specifically listed some"

I think the 9th is especially inapt. The 9th basically says "there are rights other than these we've written down." It doesn't repeat enumerated rights. Likewise my position is that the DPC clause was understood to supplement, but not repeat the 5th, 6th and 8th.

"leaving a safety valve ("due process") for ones they might have missed or the test of time (case by case) would determine is necessary"

I ABSOLUTELY agree with this, I see the DPC as a 'safety valve' too, but one that SUPPLEMENTS, not REPEATS or INCLUDES the express provisions of the 5th, 6th and 8th. So, for example, having every element proven beyond a reasonable doubt is not part of the 5th, 6th or 8th, but it's covered under DPC.

"This is the case even if there was some possible overlap as Mark Field noted in reference to the 14A"

I agree that the DPC of the 14th may have been understood to include at least some provisions of the BoR, as over time people may have thought of them as expressing the concept of due process. I just doubt the DPC of the 5th was thought of (and should be read today) that way given the immediate redundancy that results.

"supported the ERA because it would provide another layer of protection, even though the 14A itself alone could do the trick"

This doesn't make sense; if courts were applying the 14th robustly to gender what use would a redundant statement have (other than the independent symbolic value you mention, which I grant)? It was because the courts were not doing so that "another layer" was sought. A lot of people pushing for the ERA may have thought the EPC SHOULD do the trick alone, but they also were aware it WASN'T doing the trick in the courts.

"If the Constitution didn't give Congress said powers in the first place, saying so specifically is to me a correct use of "redundant.""

But that's the whole thing, the anti-Federalists did not trust that Hamilton's depicted vision of a government of only strictly enumerated powers would stay that way (in that they were correct it seems). They didn't buy Hamilton's argument...So it wasn't redundant to them.

"thus the cases I cited"

In which, instead of being implicitly passed on, incorporation was expressly passed on? I'm not sure that helps you...

"this suggests to me that the opinion did not deal with the 14A incorporation issue"

I agree, I just think that coming immediately upon ratification (which is a big, nationwide debate) their passing over incorporation completely actually suggests to me it was kind of unthinkable that incorporation had occured with ratification....But it's going to be merely suggestive either way given it was not directly addressed.

# posted by

Mr. Whiskas : 11:53 PM

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