Balkinization  

Wednesday, July 10, 2013

“Arms” and the Man: Kontorovich on the Second Amendment

Andrew Koppelman



Eugene Kontorovich, my Northwestern Law School colleague and friend, has suggested the Second Amendment is violated by a proposal to limit people to carrying only one gun.  “Arms is a plural term, and the presumption should thus be that the right to bear them extends to more than one firearm.”  The proposal has been the subject of an extended debate on Volokh Conspiracy with Nicholas Rosencrantz.

If this strict textualism is to be followed, there is an interesting implication:  perhaps there is only a right to bear “arms” – plural – but not to bear a single arm, about which the Constitution is silent.  So an individual has a right to walk around with multiple guns on his person.  But if he’s caught with only one firearm, the Constitution is silent and the state may criminally prosecute him if it sees fit.

One implication is that Heller is wrongly decided, since the claimant there only alleged his intention to possess a single firearm.  He should have asked for an arsenal.

There are some attractions to this as a matter of policy.  If the price of carrying a gun is that you have to carry two, most people will find this literally too heavy a price to pay.  Guns weigh a lot.  So a government that wants to minimize the amount of artillery on the street might well want to pursue this. 

But, of course, policy is irrelevant.  We are trying to be strict textualists here.  So the objection that has probably already occurred to you – it’s ridiculous to let people carry two guns but not one – is ruled out of order from the start. A basic requirement of this exercise is to put considerations of policy, danger to the public, and common sense out of our minds. 

Comments:

I am delighted to find myself in Prof. Koppelman’s crosshairs, and absolutely love his point that a strict texualist reading of the Second Amendment might allow for only the bearing of multiple arms. I hope it is not bad form to have a comment longer than the principal post!

Intertextualism is part of textualism. I argued not for reading the Second Amendment in sterile isolation, but rather in light of the conventions we have for parsing parallel rights provisions. Thus when other rights are mentioned the plural, they can be exercised in the plural, or singularly. The Fourth Amendment’s reference “papers” does not require one to have at least two to enjoy protection- but its protection does scale with individual activity. The right to counsel, if it gives one a right to two lawyers, does not require two.

Indeed, moving past the text, even singular rights like freedom of religion would seem to allow for the exercise of multiple religions by one person. The broader point is that the Second Amendment should (at least after Heller) be treated as full-fledged constitutional right, and not subject to unique disabilities and burdens that would be anathema elsewhere. We should not have a “second class Second Amendment” (and time permitting, I hope to treat this phenomenon more generally, including felon bans, and the elimination of the right for adults another 21). To take a different example, even someone who does not think that the Constitution, properly construed, creates a right to an abortion, should concede that once such right is established, it would be bad faith to argue for

Of course one might object that the Second Amendment is different – dangerous, etc. But this sounds like a mere attempt to rehash Heller, and question its constitutional status. It would be uncanny if the unique, second-class constitutional right happens to be the one with a uniquely different political valence from others. (Indeed, one might lightheartedly invoke Windsor to say that a right subject to unique disabilities must be motivated by a naked animus to that right. I say this particularly tongue-in-cheek given the excellent drubbing Prof. Koppelman has given Justice Kennedy's argument.)

The point of constitutionalizing rights is to shield them, at least in part, from the vagaries of “policy” considerations. We often uphold First Amendment speech rights or other constitutionally protected activities even when we might think them unwelcome from a policy perspective.
 

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The plural term arms simply parallels the plural term people. "The right of the people to keep and bear arm" would be nonsensical.

You may no more limit the arms a person can keep than limit the amount of speech a person can deliver.
 

Bart, I immediately agreed with you but then thought about the Fourth Amendment which speaks of "the people" and then "their persons, houses, papers, and effects." This has always been read to protect any individual persons houses, papers, and effects, plural as well as singular as the case may be. So I take Mr. Kontorovich's point to be something like: doesn't the similar wording in the 2nd suggest that, as a textual matter, the people cannot be limited to one gun under the 2nd Amendment? Or is that "persons" in the 4th doing some kind of work there?


 

"one might object that the Second Amendment is different – dangerous, etc. But this sounds like a mere attempt to rehash Heller"

I'm not sure since Heller itself seemed to recognize this difference by blessing restrictions on the 2nd Amendment RKBA that would not be permitted with, say, the freedom of speech (for example, limits on exercise by felons or the mentally ill, or limits to arms 'in common use' would not be permitted with speech).

I think perhaps a better way to look at it than claiming second hand status for the 2nd is to say that we should engage in the same strict or intermediate type scrutiny analysis as we do with the 1st. Of course in doing so the 2nd may find itself facing a stronger compelling interest in most cases because the dangers inherent in exercising one's RKBA is usually more severe and direct than it will be for speech.
 

Andy has never hear of the Keltec line of guns. I can carry four or five of these lightweight but powerful guns about my body and the only problem I would have is that I might forget they are there. It's sucess has been copied by many companies over the past 15 years.


 

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Back in 1791, imagine someone bearing 4 or 5 muzzle loading muskets with the necessary powder, shot and other required accessories to use them. [Bill Cosby did a routine years ago on a soldier during the Revolution operating just one such musket. The ramrod, patch and reloading after the first shot was hilarious. But imagine 4 or 5 such muskets.]

It is no secret that the 2nd Amendment does not specifically reference muskets, rifles, guns that a person has the right to keep and bear (bare?). Rather, arms are weaponry. Hand grenades are weaponry that a person can easily bear. And so can a couple of suitcase dirty bombs.

If a limit of one gun is unconstitutional, is there any permissible limit? A person may keep guns in storage, many more than the person may physically be able to bear (bare?). But why limit to guns? Why not hand grenades, suitcase dirty bombs or more miniaturized deadly weaponry that may be developed?

Let's get some answers from law professors who may soon have even much more time on their hands what with the problems facing law schools. Look at how much there is to be explored regarding the 2nd Amendment that remain unanswered after Heller and McDonald, each of which addressed only handguns in the home for self defense. Yes, what we need are more law professors to strap on gun(iff) belts and explain our right to keep and bear ((bare?) arms. Justice "Scowlia" tried in Heller to pre-empt the "slippery slope" arguments on an absolutist 2nd Amendment. But who cares about "policy." It is the right to keep and bear (bare?) arms that is paramount to life, liberty and the pursuit of happiness. But let's hope that these law professors with plenty of time on their hands can shoot straight.
 

By the Bybee [expletives deleted], can we add to the phrase "Law Office History" "Law Office Linguistics" for cunning law profs?
 

Query: In the 3 years since McDonald, have there been any 2nd Amendment issues on the Court's agenda, especially for the upcoming term? I am aware of several articles on post-Heller/McDonald lower courts cases on the 2nd Amendment. In the past year or so, there have been 3 Circuit Courts decisions (7th, 2nd and 4th) with conflicts. But it isn't clear to me if and how they or any of them are proceeding on or are ripe for further appeal. I'm not aware of Cert grants. Perhaps there is a reluctance on the Court to consider 2nd Amendment cases until more and more law profs with plenty of time on their hands can continue to struggle with the "slippery slope" arguments, so that after the shoot-outs and the smoke has cleared (and the bodies removed) the Court can opine, perhaps once again 5-4, either way.
 

Shag:

Roberts likes to allow issues to percolate in the lower courts.
 

And Roberts likens himself to an umpire, but making decisions long, long after the play is over. But it only takes 4 for a Cert grant. Personally, I think that both Justices "Scowlia" (Heller) and Alito (McDonald) are concerned with the "slippery slope" that gun yahoos are ready to slide down shooting all the way, especially with changing demographics. Might "Arms for the love of Allah and the Constitution" change the demographics?

By the Bybee [expletives deleted], how many may die in the name of the 2nd Amendment with lower court percolating before SCOTUS follows up?
 

I keep humming "How are Things in Glock-a Morra" for some reason. Shoot! I'll figure it out.
 

"The broader point is that the Second Amendment should (at least after Heller) be treated as full-fledged constitutional right, and not subject to unique disabilities and burdens that would be anathema elsewhere."

That's fine, but the VC posts wasn't about treating it as a "full-fledged constitutional right" (btw, the dissent thinks it is a "right" too that deserves such status; it just interprets it differently), but some textual business involving multiple arms and such.

So, let's not move in to boilerplate territory here. If we are concerned about fully protecting the right, we would as the OP suggests, go beyond the text, which doesn't answer every question, but deal with policy questions too. This doesn't resist Heller, since Heller UPHOLDS the power of many regulations.
 

"btw, the dissent thinks it is a "right" too that deserves such status; it just interprets it differently"

Yes, and armed robbers believe in property rights, too, they merely define them differently.

Utter BS, the dissent in Heller resorted to a tactic common among gun controllers: Claim you accept the existence of the right, (Hard to deny with that word "right" in the amendment itself.) but define it so that nobody could ever actually claim that right. The 'right' they acknowledged would permit the government to disarm anybody but it's own troops.
 

The dissent argued that the purpose of the 2A was to protect the organized militia.

So, e.g., a state might have the power to control its own militia, including having the average person be armed with such and such ala the Militia Act of 1792.

The "utter BS" interpretation here could protect the average Texan, e.g., from federal prosecution, if gun ownership is in promotion of state militia use.

Or, since the 2A speaks of "the people," if the government denies someone from joining the militia, that person can have a claim for an individual rights violation.

Just two ways how the 2A can protect individual rights as well as increase state power vis-a-vis the federal government, which can also in the long run (a libertarian sort should think so) further individual liberty.

It is well known that Brett doesn't agree with the dissent and also thinks the majority, including Thomas, is a pablum view of individual rights. But, it still is the case that the minority protects rights too.

And, in somewhat more sound ways than the robber example.
 

With deference to Bart, taking this sort of nonsense to an extreme, the obvious "originalist" meaning of the 2dn Amend. is that no person has a right to bear arms, this right exists only for "the people" as a group!
 

"But, it still is the case that the minority protects rights too."

Just in a way which permits a complete abolition of the right.
 

"Just in a way which permits a complete abolition of the right."

How? I already explained how individuals still can raise claims, including claims protecting their ownership of weapons vs. federal invasion.

How does this "completely" abolish the right? Which sort of assumes the conclusion, since it appears to presuppose what "the right" is in the first place.

One more thing. Pursuant to Art. I, sec. 10: "No State shall, without the Consent of Congress, ... keep Troops." The 2A doesn't protect "troops" per se, which suggests some sort of military body. It involves "the militia."

[see, e.g., Presser v. Illinois]

 

Brett makes it obvious that he needs an arsenal to protect himself because of the changing demographics. Consider how the minority lacked rights following reconstruction especially "inspired" by Plessy v. Ferguson and augmented by Jim Crow until Brown v. Bd. of Educ. came along in 1954, followed by the Civil Rights Acts of the mid 1960s that attempted to level the playing field but continued with Jim Crow states with remnants that still exist. Brett can't make it on his own with reason and relies upon what has been described as neo-confederate libertarianism aimed at battling the changing demographics. Brett can't survive with reason, logic and justice, as he deems himself entitled over people of color. I wonder how his mixed race son reacts to that as his son gets older. Whatever the 2nd Amendment provides, it provides for ALL people, including as the change in demographics takes place. Whatever rights the 2nd Amendment provides, these are the rights of the majority and the minority.. What Brett fears is become part of the minority, perhaps because he fears that a new majority will do to his new minority what the old majority has done to the old minority. So there is not abolition of the right, rather there is a new majority perhaps taking greater benefit of the right to the perceived detriment to the new minority.
 

"Arms" are not limited to firearms. A person can be armed with a knife, a sword, a pike, a gun, or all of them. Most people who carry a gun also carry a folding knife.
 

Look, Joe, Steven's dissent in Heller held that the 2nd amendment only protected the ownership of firearms in military service, that is to say, by soldiers. He was joined in this by Breyer, Ginsberg, and Souter. He held that states and the federal government could outright ban gun ownership in ANY other context.

A "right" to possess and carry a gun in military service. A right to carry a gun when ordered to. Does that sound like anything you'd recognize as a "right"????
 

Whether Brett is an originalist or a textualist, where is Justice "Scowlia's" Heller majoritiy's individual self-defense specified in the text of the 2nd Amendment or elsewhere in the Constitution? As to originalism, it has been well demonstrated that "Scowlia" and his majority relied upon "law office history," and this has been pointed out by real historians, who with the addition of real linguists demonstrated the significant (both historically and linguistically) introductory militia clause of the 2nd Amendment. Keep in mind that the decision in Heller was 5-4 and that "Scowlia's" dicta attempting to pre-empt "slippery slope" arguments serves as red meat for gun yahoos. Brett views 2nd Amendment rights paramount to responsibilities and is prepared to slide down the "slippery slope."
 

Steven's dissent in Heller held that the 2nd amendment only protected the ownership of firearms in military service, that is to say, by soldiers.

The dissent discusses the importance of the "militia," who are "civilians primarily, soldiers on occasion." Not "military service," full stop. A certain type -- the militia. Furthermore, "the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution." Part of this would be to allow states to organize militia and allow or even require them to be armed. Many states would do this. Individuals in those cases, to repeat myself, e.g., would have an individual rights claim against the feds.

He was joined in this by Breyer, Ginsberg, and Souter. He held that states and the federal government could outright ban gun ownership in ANY other context.

Where does he say this? That would be an advisory opinion, since the only thing he was deciding was the meaning of the Second Amendment. He argued it does not protect owning a gun for self-defense separate from organized militia service. The right of the people of each state to form organized militia served as a check to federal standing armies and provide a means for self-defense given Art. 1, sec. 10 denied the power of states to have "troops" w/o congressional consent. The people also had power to do things like set up state legislatures and judicial systems, established churches and so forth. The "right" of the people to do this is a notable thing.

A "right" to possess and carry a gun in military service. A right to carry a gun when ordered to. Does that sound like anything you'd recognize as a "right"????

Women sued to have the "right" to serve on juries. You can only serve on juries when "ordered to." So, yes, the right of "the people," not some select group like white men, being able when the state sets up a militia to possess and carry for MILITIA service would be a "right" to me too. Black men in 1791 would not so demean as you did having the ability to join white men in each state to carry a gun as part of the active militia. Having a militia made up of all classes would have protected their safety more than the alternative. To repeat myself, this would be another way for an individual to raise a "right" claim under the 2A. There is no "abolition" here. I think there is a plain right to possess a gun, but you exaggerate the limits of the dissent. Breyer's dissent, also joined by four justices, also raises another argument that accepts a limited self-defense right to own. It clearly isn't as broad as you like since you think the majority doesn't go far enough. But, it also does not totally "abolish" the right.

As Stevens noted: "Surely it protects a right that can be enforced by individuals." The question is "the scope."
 

And the scope he chose was one that nobody not determined to rationalize the destruction of the right would find reasonable: Military service.

There's no minimizing this: The minority was prepared to approve the most extreme, outlier law in the entire country. The 'right' he was prepared to recognize was nothing anybody who didn't want the 2nd amendment to be a dead letter would recognize as a 'right'.
 

Somewhat off topic, perhaps, may be Michael J. Golden's "The Dormant Second Amendment: Exploring the Rise, Fall, and Potential Resurrection of Independent State Militia" is available at SSRN:

http://ssrn.com/abstract=2291920

60+ pages that I have downloaded but only glanced at. Prof. Golden is on the faculty at Georgetown Law. and gives thanks to Jesus Christ and others (no, not the Apostles) who assisted him in creating the Article. The "Potential Resurrection" may give cause for concern, especially if North Colorado becomes the 51st State. Or perhaps the South will rise again.

Should we blame Sandy for starting all this?
 

And the scope he chose was one that nobody not determined to rationalize the destruction of the right would find reasonable: Military service.

You are again assuming the conclusion. Many find it "reasonable" that the "right" is an equal membership in the militia, just as the RIGHT to serve a jury was seen as of great importance in that era. This would not be 'destruction' at all.

There's no minimizing this: The minority was prepared to approve the most extreme, outlier law in the entire country.

The case was taken to address a specific 2A question. They were prepared to support, like the voters of the law, a specific well accepted view of it. The Breyer dissent also left open a self-defense option.

The 'right' he was prepared to recognize was nothing anybody who didn't want the 2nd amendment to be a dead letter would recognize as a 'right'.

I have already explained how - if you don't assume the conclusion - how the right would be an important matter, especially in 1791 vis-a-vis federal power.

Why is the right of a black person or poor person to have an equal right to join the militia so trivial for you? Why is the right of a person to challenge federal laws pursuant to states entrusting the average person with a gun to defend a free state? Why is it so trivial to you for states to have organized militia as a check on federal power?

Even if -- like was allowed over history in many cases -- heavily populated urban areas put limits on gun ownership in this fashion, especially if the exception allowed by the Breyer dissent is read into the statute?

How is the 2A a "dead letter" there? Again, I don't think the RKBA is only about that. But, this trivialization is deeply ironic.
 

It is trival because the militia system has been discontinued. Stevens could admit the right existed with respect to people enrolled in the militia, without this having any consequences for anybody, because today nobody is enrolled in the miltia. (The National Guard, to meet the usual response, has been ruled to NOT be the militia refered to in the Constitution, but merely an exercise of the cause permitting armies to be raised.)

I am completely unimpressed by your attempt to impute racism to me, except for downgrading my opinion of your character.
 

I guess Brett isn't interested in Michael J. Gordon's article, which might suggest a militia resurrection for state insurrection, so Brett can put his arsenal to use.
 

It is trivial because the militia system has been discontinued.

It has not been completely discontinued and if having state militia in let's say Texas would be the means for doing what I said, the states can easily set them up.

People like Joseph Story back in the 1830s was worried about how the militia was going into non-use. Having some unrepresentative sample having arms (as we have today) should be a major concern for those who support the aims of the 2A.

The National Guard, to meet the usual response, has been ruled to NOT be the militia referred to in the Constitution, but merely an exercise of the cause permitting armies to be raised.

Perpich v. DOD notes that while in "active duy," state guards are no longer militia (again, if Texas, e.g., wants to change things, it can), but does not say state guards are not "militia" at all.

I am completely unimpressed by your attempt to impute racism to me, except for downgrading my opinion of your character.

I'm not trying to impute racism. I'm trying to understand why you are trivializing a reading that has meaning, including to blacks. I mentioned poor people and women too. I also am not imputing sexism or classism.

You will need rest any such downgrade on something else.
 

ETA: Active federal duty.

The opinion regards a 1990 dispute arising in Minnesota. In part:

"The fact that these units also maintain an identity as state national guards, part of the militia described in Art. I, § 8, of the Constitution."

State control (except as set by Art. 1) is lost when they enter active federal service (including overseas). But, they are "part of the militia" of the state.
 

I'm slogging through Michael J. Gordon's article but have had difficulty with the small print size as my eye problem has had somewhat of a setback, so I'm sort of like a one-eyed cat, peepin' in a seafood store. There is a table of contents, which is of assistance on certain points. I did some scanning in an effort to see how Gordon addresses Heller and McDonald. Reference is made to the role of the militia to protect a state against central government excesses back in the good old days. Gordon recommends changes, perhaps via federal legislation, to provide for independent state militias. It's not clear to me whether such legislation can accomplish this without addressing amendments to the Constitution. It isn't clear to me how such legislation would interact with the 2nd Amendment.

What is eye opening (but not my bad eye, unfortunately) is Gordon's recommendation of an independent state militia and how such might be utilized to addressed perceived central government excesses - or disputes with another state.

I'll continue my slog with the article but would hope that some of the "regular suspects," including especially Sandy, would take a look at this article. With the gridlock in Congress, especially on the House's reaction to the Senate immigration bill, and the reactions of Billy Kristol (the unfunny one) et al at the Weakly Standard, I am concerned with racial overtones that seem to developing. The thought of wakening the dormant 2nd Amendment to resurrect state militias and making them independent is scary. As I noted in an earlier comment, Gordon gives thanks to Jesus Christ (and others) for his article. Perhaps we might expect a federalism crusade here in the good old U.S. of A. that just might clash with the First Amendment's religion clauses. Now for a chorus of "Onward Christian Soldiers, ...."
 

Shag appears to like printouts, as do I, but if the print is too small, might use the viewer and magnify.
 

"I'm trying to understand why you are trivializing a reading that has meaning, including to blacks."

Because it's a 'reading' of a basic civil liberty specifically designed to deny that civil liberty to everybody, including blacks.
 

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Because it's a 'reading' of a basic civil liberty specifically designed to deny that civil liberty to everybody, including blacks.

Again, you are assuming the conclusion on what the liberty entails. Also, since the ruling was limited to a specific question as to the 2A, the "basic liberty" involved here being based on some other grounds was also not decided upon by the dissent. Likewise, since most states protect it as well, the dissent could not very well be "designed" to "deny" it in that way either.

Moving past that, as I explained more than once, the dissent left open, in more than one way, individual protections, for "everybody,"* including from federal power.

Repetition not getting us very far, I will leave it there.

---

* To the degree "everybody" has rights here, various groups, such as five year olds, not having the exact same rights to possess a gun, e.g., even as they might have a right believe in a God or buy a book before buying a gun.
 

I'll agree on the not getting far, and the sneer quotes you put around "basic liberty" show pretty clearly your attitude, confirming what I said: It's a reading only people who want the right destroyed will accept.

You just happen to be in that group.
 

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Also, since the ruling was limited to a specific question as to the 2A, the "basic liberty" involved here being based on some other grounds was also not decided upon by the dissent. Likewise, since most states protect it as well, the dissent could not very well be "designed" to "deny" it in that way either. buy fifa coins  lol boost  fifa 14 coins  league of legends boosting
 

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