Balkinization: It's So Difficult to Break Free of a Cult

It's So Difficult to Break Free of a Cult

Sandy Levinson

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

As it happens, I finished Mary Anne Franks’s The Cult of the Constitution only very recently, just as I read Jack Balkin’s review of her book. I am tempted simply to incorporate his review by reference, since I substantially agree with almost all of it. He captures very well both what is admirable in the book and what I disagree with. I will mostly focus on the latter here, but I do want to say that I think that her critique of much established First Amendment doctrine—or ideology—with regard to such phenomena as “revenge porn” or the Internet more generally is excellent and extremely thought-provoking.

Perhaps as a function of my age, and the sheer fact that none of my professional teaching interests any longer focus on the First Amendment, or, even more certainly, the Internet, I, unlike Jack, am fundamentally ignorant of many contemporary issues. Although I remain a card-carrying member of the ACLU, the target of much of her criticism, I have little trouble agreeing with many of her specific critiques and, more particularly, her point that the costs of a free-speech regime, especially in the modern era, may well be borne by socially marginalized or unusually vulnerable groups, of which women are her primary, and persuasive, example. It is hard for me to believe that anyone could read her chapters discussing such issues without, at the very least, questioning what might be long-accepted verities, and recognizing that a lot of the empirical assumptions behind them might well be open to challenge (such as, for example, the actuality of “chilling effects” generated by disciplining practically any speech).

Perhaps one other reason for some of my ambivalence about some of her arguments is precisely the fact that I am a full-fledged member of the specific target group with regard to her explanation of the “cultic” importance of the Free Speech provision of the First Amendment and of the Second Amendment. After all, I am indeed a quite elderly white male, and I think the first of these two adjectives is of some importance for reasons I will offer presently. Also, it may even be relevant, in terms of her analysis, that, thanks to my almost 40 years as a well-compensated, and fairly frugal, law professor, I would by any reasonable measure be classified as wealthy. Although class analysis as such plays a relatively minimal role in her overall argument, save for when she denounces the role of the Koch Brothers and the implications of Citizens United, the realities of my racial and gender identity are front and center throughout the book.

I do think it significant, as a law professor nearing 80, that I came to consciousness regarding the First Amendment in the 1950’s and ‘60’s. Justices Hugo Black and William O. Douglas were great heroes of mine because of their vigorous defense of Freedom of Speech. Antagonists of free speech were legion in those days. They included the House Un-American Activities Committee and other McCarthyite organizations (including some within the Executive Branch); as well as the white men on the Alabama jury in New York Times v. Sullivan who would gladly have bankrupted the New York Times in a trumped-up defamation suit. Black and Douglas were, I was certain, fighting the good fight, as clearly evidenced in the Pentagon Papers case and their opposition to Richard Nixon and his associates. I don’t have any trouble with latter-day critiques of Sullivan; I’ve offered some myself, but it is vital to understand why Black’s and Douglas’s dismissal, in their concurring opinions, of all of defamation law seemed so attractive at the time.

Jack coined the valuable term “ideological drift” to describe the phenomenon by which ideas once associated with progressives or leftists become adopted, in very different contexts, by their adversaries. No doubt that has occurred with regard to much Free Speech doctrine, which, as Franks notes, is as likely to be invoked these days by big tobacco and other large corporations as by the “puny anonymities” or “lonely dissenters” who populated most of the canonical caselaw of my youth. Whether or not old dogs can be taught new tricks, it is both necessary and proper to be reminded that ideas that indeed might have been compelling a half century ago might have lost some of their luster. And one should accept the harsh reality that slogans issued by the Supreme Court were quite unlikely to be based on sound empirical research and served far more as ideological pronouncements—many of which I was completely happy to endorse—than as accurate guides to human behavior.

It is also true that my limited career as a practicing lawyer includes two cases, one of which actually got to the Supreme Court, as a volunteer attorney with the oft-criticized ACLU. The second case involved defending the right of the Ku Klux Klan to march in Austin, Texas, when the City Council, no doubt reflecting the views of a majority of their constituents, attempted to block the march—a protest against immigration—by evoking the undoubtedly dreadful history of the Klan in American history. In the other case, I happily defended a member of Lyndon LaRouche’s U.S. Labor Party against charges that he had violated the rights of Princeton University by trespassing on its property to pass out leaflets condemning the Trilateral Commission and, more specifically, the campaign led by many left-wing students for Princeton to divest its investments for in South Africa. For what it is worth, the primary basis of the defense was the New Jersey State Constitution. After losing before the New Jersey Supreme Court, Princeton appealed to the United States Supreme Court with an absurd argument that their institutional First Amendment rights were violated by requiring that it allow people like my client on campus. Because the University had in fact changed its rules, the Court dismissed the case as moot. The City of Austin, incidentally, after losing its case, was required to pay some $8000 in lawyers’ fees to the ACLU; no doubt the City Council viewed this as simply a cost of reassuring most Austinites that it was no friend of the Klan. I would not hesitate to take either case today and to fight to vindicate the rights of despicable groups like the Klan or simply extraordinarily eccentric groups like the LaRoucheites to the same degree of access to public space as more “respectable” groups, many of whom, in terms of their actual impact on American society, I view as at least equally pernicious.

It may be also relevant that if I ever get an obituary in the Times, it will probably be for having authored, in 1989, The Embarrassing Second Amendment, which suggested that political liberals had to stop pretending that the Amendment wasn’t part of the Constitution and that it did, in fact, raise a variety of extremely important and vexing issues. The most important of them involves the extent to which one really wants, as Max Weber suggested, to give the state a genuine monopoly over the means of violence. In the essay, I quoted a bumper stick of the times, “When Guns Are Outlawed, Only the State Will Have Guns.” One might think that someone with Franks’s own sensibilities might genuinely wrestle with the implications of that sticker—especially if one views the state as, if not the ruling committee of the bourgeoisie, then at least the ruling committee of powerful white males. At the very least, Weber's dictum requires one to have a great deal of trust in the state and in those it selects to carry arms that can be used against the powerless and the vulnerable. I argued then, and believe now, that the Second Amendment, properly understood, has little to do with “self-defense” in the sense adopted by Justice Scalia in Heller and everything to do with a civic republican conception of a virtuous populace willing and able to— in the words of Lin-Manuel Miranda—“rise up” against an arguably tyrannical state. Perhaps we no longer believe in the very possibly of such a virtuous populace, and believe instead that guns are likely to be kept or borne only by “deplorables.” That is very much a possibility worth discussing, however, instead of simply assuming, for its acceptance has deeply disturbing implications for the very idea of liberal democracy.

This point, incidentally, gets to a weakness of Franks’s analysis of the arguments for free speech. She altogether correctly points out the perhaps fatal weaknesses in the standard defenses emphasizing rights to unimpeded self-expression or the assertion by John Milton that “truth” is more likely to triumph in any contention with falsehood, let alone Oliver Wendell Holmes incoherent notion that the best test of truth is its ability to prevail in the :marketplace of ideas." The reality of contemporary social media and the Internet has simply underscored the facts that some self-expression should be suppressed, if at all possible, and that “fake news” is a genuine threat to any semblance of democracy even if we are properly skeptical of Donald Trump’s invocation of that concept.

But she resolutely ignores the third defense of a free speech regime made by Fred Schauer in his classic book on the subject, which is basically the mistrust of the state to serve as a disinterested and thoughtful censor of speech that well-intentioned people might agree, around the seminar table, merits suppression. She properly notes the overlap between some of the positions adopted by devotees of the ACLU and more “orthodox” libertarians such as those associated with, say, the Cato Institute. Modern political liberals must indeed explain why they (or we) have faith in the State to regulate the economy but not to regulate other aspects of social life in the name of the public interest. But she certainly does not set out any sustained argument of her own as to the extent to which we should reject libertarianism in all of its guises and simply place our faith in a benevolent state to get it right.

I find her chapter denouncing the Second Amendment problematic in one important respect. If the Second Amendment simply disappeared tomorrow from the Constitution, it is not clear exactly what difference it would make in American law or society. Of course as part of the text the Second Amendment has great symbolic effect, but her argument is not merely about symbolism. Firearms have long been an almost constitutive part of American culture, not least because we were born in a violent secession from the British Empire. I was personally appalled when Texas adopted an “open carry” provision, but was then surprised to discover that approximately 45 of the 50 states in fact have state laws adopting one or another form of open carry. And, not surprisingly, many state constitutions, a subject about which Franks, like almost all of the American legal professoriate, exhibits no apparent interest, explicitly protect rights to keep and bear arms.

I would certainly prefer a less arms-saturated society than the one we live in, and I am confident that most “gun control” laws would not be subject to serious challenge under the Second Amendment, even after Heller and McDonald. But one should recognize that support for guns is rooted far more deeply in American culture, for better and, certainly, for worse, than it is in reverence for the Constitution. The NRA did not create a firearms culture in America, even if it most certainly figured out how to mobilize it for sometimes nefarious purposes.

So let me end by what I find to be the most perplexing feature of Franks’s book, well spelled out by Jack, though I will probably be a bit more critical than he is. He notes that her condemnation of the “cult of the Constitution”—which really means, in the context of this book, support for particular notions of the First and Second Amendments—is complemented by her apparent belief that if only we look at the Fourteenth Amendment, and its Equal Protection Clause, then we will in fact have a Constitution worth rallying around.

I am skeptical that rallying around the abstract notion of equality will solve many of our practical political or social cleavages. One of my own favorite books, which I mention in all of my classes when I begin teaching about the Equal Protection Clause is Douglas Rae et al., Equalities. Its point is simple: There are 108 logically defensible theories of equality, and the textual Constitution in particular most certainly does not give a clue as to which of these 108 should be accepted as the winning theory. I also love to spend a great deal of time on Strauder v. West Virginia, which I have touted as the only case students really need to read on race and Equal Protection if they wish to understand the basic tensions that the Court has never come close to resolving in the nearly 140 years since Strauder. Does the Amendment require “color-blindness,” i.e., indifference to race, or instead an “anti-subordination” principle that permits “friendly” racial classifications even as it prohibits “unfriendly” ones? The Court is now split 5-4 on the answer to that question in part because both sides can find plenty of supporting material.

I will also note, for what it is worth, that the Fourteenth Amendment represent the triumph of force or arms rather than any deliberative process by which the partisans of white supremacy were persuaded to mend their ways. Congress divided the South into military districts and refused to readmit Southern states into the Union until they agreed to ratify the proposed Amendment. As with our initial secession from the British Empire, the Civil War and Reconstruction are the clearest examples of political (or legal) authority growing out the barrels of guns, as much as we are embarrassed by that fact.

But my major disagreement with Franks is not merely her undertheorized account of the Fourteenth Amendment and her facile reliance on the Golden Rule or on Kant’s categorical imperative. Rather, my main objection is that, like most of the legal professoriate, she is interested exclusively in rights provisions of the Constitution and seems indifferent to the important structural provisions of our Constitution that are far more important in explaining, for example, the continued dominance of a minority of aging white (and rural) males in our increasingly modern and multiracial political culture. Thus I was simply astounded when I got to the last chapter of her book to realize that she is still imbued with a remarkable degree of “constitutional faith,” even if it centers around the Fourteenth Amendment.

On pp. 200-201 of her 204-page book, we read a vivid discussion of William Lloyd Garrison’s denouncing, and indeed, burning, the Constitution because it was a “Covenant with Death and an Agreement With Hell.” If we agree with Garrison that the “Constitution is fatally compromised,” Franks writes, then even modern devotees of the Constitution, like herself, “must do as Garrison did: repudiate the Constitution in its entirely. If the constitution stands for white male supremacy, it should be set on fire and burned down to ash.” It might be worth noting that Heidi Schreck, in her Pulitzer-nominated play What the Constitution Means to Me, narrates her own disillusionment with the Constitution and concludes with a debate, influenced partly by a book that my wife and I co-authored, Fault Lines in the Constitution, as to whether the Constitution should be “abolished.” I probably would have preferred the word “replaced,” but I’m certainly record as exhibiting ever-increasing unhappiness with the Constitution and believing that it constitutes, in its own way, a clear-and-present danger to our national survival (and, because of the sheer importance of the U.S., perhaps the survival of most people in the world).

Why would anybody believe that the existence of the Fourteenth Amendment, without more, would be enough to save the Constitution from a neo-Garrisonian criticism, given that we continue to live within systematically undemocratic institutions crafted in 1787 that have been insufficiently amended since then? Franks is aware of views like mine; she cites my book Our Undemocratic Constitution, which pleads for a new constitutional convention to address its patent defects.

“This approach,” she writes,

however, has obvious practical limitations. The Constitution, is, for now, the nation’s binding document, and it is unlikely that it will be set on fire, or even significantly amended, any time soon. Constitutional claims will probably always retain powerful rhetorical appeal, and those who criticize the Constitution will probably always be attacked as unpatriotic, perhaps even treasonous. The assertion that ‘the Constitution is not all that matters’ will never be as compelling as the claim that ‘this is what the Constitution means,’ whether in a courtroom, a classroom, or a boardroom. The Constitution is the only political text that garners widespread recognition and respect in our society, and it our best hope for improving our collective interests. There is little to be gained and much to be lost by ceding the constitutional field, even if it were true that the Constitution is not worth defending. emphasis added]

She goes on: “What makes the Constitution worth defending is precisely that it is neither divine, nor fixed, nor infallible. The greatest virtue of the Constitution is that it can be changed.”

To put it mildly, there is no recognition in these remarks that the United States Constitution may well be the most difficult constitution in the world to change, in part because of the ridiculous devotion that it has generated, but also because Article V makes it so easy for well-placed interest groups, most of them dominated by white males, to block needed change. Consider, for example, the Equal Rights Amendment, proposed by two thirds of each House of Congress (and supported, for what it is worth, by Richard Nixon), and ratified by a majority of the states with a majority of the population. There was widespread support for the ERA, but it just didn’t matter because of the requirements of Article V. The U.S. Constitution is exceptional among constitutions around the world in its imperviousness to change. It is also by far the most rigid of any of the 51 constitutions (state and federal) that actually constitute the tradition of “American constitutionalism.” American state constitutions are generally far easier to amend, and, if need be, to replace, than the Constitution of 1787 that Frank resolutely defends.

In these above passages, Franks has shown herself to be a devoted member of the Cult of the Constitution. No better proof could be offered of that Cult—the almost irrational hold that the Constitution undeservedly maintains in the consciousness of Americans—than its hold over the consciousness of even a vigorous and thoughtful critic like Mary Anne Franks. It is that Constitution, with its undemocratic structures, that inflicted on us the indefensible United States Senate. Madison once described the Senate as a “lesser evil” to having no Constitution at all, but it remains an “evil” nonetheless with regard to its principle of equal representation of the states, and the evil increases with each passing day. And that unequal representation means that the predominantly white and rural populations of the county—which may also more patriarchal in political culture than other states—have grotesquely excessive power in the Senate—a body that is best labeled an “affirmative action program” for the residents of small states. Even if one can barely imagine progressive amendments making it through the modern Senate, it remains the case that a single legislative house in thirteen separate states, totaling less than 5% the national population, could doom any changes Franks might want to make. If Franks really wants to criticize white male supremacy, she should start with the United States Senate, which stands in the way of many of the constitutional and statutory reforms she might desire.

I am glad that I read this book. I learned a lot about some of the violence being visited daily on women and non-white men in this country, and I realized yet once more how limited my knowledge is about the actual operation of the modern Internet. But as a serious critique of “the Cult of the Constitution,’ it is surprisingly limited and, therefore, disappointing.

Posted 9:30 AM by Sandy Levinson [link]

Comments:

"The U.S. Constitution is exceptional among constitutions around the world in its imperviousness to change. It is also by far the most rigid of any of the 51 constitutions (state and federal) that actually constitute the tradition of “American constitutionalism.” American state constitutions are generally far easier to amend, and, if need be, to replace, than the Constitution of 1787 that Frank resolutely defends."

I haven't read the book, but I'm wondering if perhaps Franks has in mind a broader notion of "amended" than "complying with Art. V". After all, both of the 2 big changes to the US governmental structure took place essentially outside of that process.

"I argued then, and believe now, that the Second Amendment, properly understood, has little to do with “self-defense” in the sense adopted by Justice Scalia in Heller and everything to do with a civic republican conception of a virtuous populace willing and able to— in the words of Lin-Manuel Miranda—“rise up” against an arguably tyrannical state."

Given her focus on the equality provisions*, I've no doubt that she'd see the 2d A less as a bulwark of civic republicanism and more as a bulwark of slavery and white supremacy.

*FWIW, I think there's plenty of justification for the principle of equality in the theory of civic republicanism. But obviously it never operated that way and still mostly doesn't. I think that supports the criticism you and Prof. Balkin both make about Franks being hoist on her own petard.

# posted by

Mark Field : 10:01 AM

I think you can only do so much in a book about two hundred pages long but it's fine to critique various things she says. (I read the book.)

Her arguments are worth contemplating though as is often the case one can grant a lot and still disagree with some conclusions. One key passage challenges three basic assumptions about free speech (e.g., the marketplace of ideas metaphor). And, one can say "you have a point, but a lot of where we are is still good." Plus, her concerns there (including how current free speech law favors certain groups in practice) suggests the importance of possible paths to address just that. This, of course, does include clashes with some assumptions such as the breadth of the Citizen United ruling (note it leaves open things like disclosure laws).

I don't think she rests her guns segment on the Second Amendment alone -- she challenges a certain strand of what might be deemed gun culthood there that do not appear compelled by the Second Amendment. For instance, stand your ground laws in practice. I appreciate SL's famous 2A article. "The Second Amendment" like "the Constitution" on some level here is symbolic. I didn't read her views (as some might) as wishing to ban guns or something. It was a realistic, good to contemplate, discussion of some of the biases in our current law.

The path to change here is changing views of what it means, as has occurred over the years. This includes certain periods where amendments did occur, especially periods of great change and conflict. Note that Articles of Confederation at least literally seemed hard to amend. Universal agreement! Article V is only so strong there.

# posted by

Joe : 11:04 AM

I appreciate btw that comments are left open.

A suggestion that is of course up to the wishes of the blog runners. When there are these discussions by various speakers, perhaps set aside a thread (open for the span of the discussion) for people to talk about it.

I understand that many contributors rather not deal with comments that at times become abusive or off topic. A discussion thread provides a chance for input, which in various cases I think can be useful.

# posted by

Joe : 11:08 AM

i thought about this Is that decision to support the leader, even if it means ignoring long-professed ... Other of his followers, who aren't as hard core, are following suit because of the sway that he has. ... What typically has to happen to break free?

# posted by

beannar : 11:16 AM

I have not read the Franks' book, nor based on the commentary here am I likely to.

The pitched thesis: "The Cult of the Constitution reveals how deep fundamentalist strains in both conservative and liberal American thought keep the Constitution in the service of white male supremacy" is absurd on its face.

If by "fundamentalism" you mean enforcing the basic law as written, the Constitution and its amendments have stripped the evil "white" male minority of governmental power over the majority of the People.

The federal government is expressly limited to a handful of basic of powers, none of which include oppressing the non-"white" male majority of the people.

What power exists is exercised by a House chosen by population, a Senate chosen geographically and POTUS chosen by a combination of the two, requiring an effective supermajority consensus of the electorate (which by amendment includes the non-"white" male majority of the people) to exercise power over the people.

Finally, the Constitution and its amendments provide the people equal protection of a set of liberties guaranteed from government power, of which two of the most important are the guarantees to free speech and to keep and bear arms which Franks assails. It is instructive that actual government oppression of racial minorities sought to deny them both of these rights.

Franks' true complaint is a "fundamentalist" application of the Constitution as written guarantees free speech and the right to keep and bear arms to the evil "white" male minority when she wishes the government to abridge our rights. As Sandy correctly observes, the Second Amendment guarantee of our right to keep and bear arms was primarily enacted to allow the people the means to stop such tyranny.

# posted by

Bart DePalma : 11:51 AM

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# posted by

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# posted by

Sophie Lewis : 12:15 PM

Bircher Bart never fails to disappoint in consistently demonstrating in spades what he thinks he's arguing against, all the while lacking in a shred of self awareness to know it.

His reply to Frank's work, after declaring he's not prepared to give it a serious fair hearing in the first place, reminds me of a local Baptist minister's reply to a religious studies professor's contention that the Bible should not be read as innerrant as that has historically led to a simplistic, cultish outlook endorsed easily by men but where women and children end up being treated rather shabbily. The minister's confident reply? "Well of course she's wrong about innerrancy, the Bible says plainly it is without error, and that everyone is saved equally by accepting this, and I've never found it otherwise!' Lol.

# posted by

Mista Whiskas : 1:01 PM

"I've no doubt that she'd see the 2d A less as a bulwark of civic republicanism and more as a bulwark of slavery and white supremacy."

Indeed, one oft-recognized need of colonial militia's was to protect against slave uprisings. Of course blacks and slaves had no right to arms or be in militias because a-textual arguments abounded put them in a different class (in a similar and contemporaneous way remember Bart's ridiculous and entirely a-textual arguments about 'Persons' changing it's meaning from Sect. 1 of the 14th Amendment to Sec. 2). Cults and fundamentalists are, of course, always able to split hairs so the text can be read literally and narrowly when they want to (when their perceived interests are seen as threatened) but then a-textually and broadly when it suits them as well (selective focus is also used, so passages condeming homosexual behavior get latched onto while ones condemning, say divorce, get glossed over getting people like Pence who eschew gay weddings but officiate at Gingrich's whatever multiple he's on now; likewise notice how some textualists relatively ignore things like the Reconstruction Amendments while recently latching onto to broader and innovative applications of, say, the 1st).

# posted by

Mista Whiskas : 1:10 PM

Long time posters here know that in classic conspiracy theory thinking Bart is prone to making confident assertions based on bad evidence and worse logic but lots of ideology. Who can forget his assertions that WMDs had indeed been found as promised? His guarantee of a Romney presidency? "These poll numbers are great news for John McCain!" The meaning of 'persons' in Sec. 1 of the 14th somehow changes in Sec. 2. And many more.

Let's add to the list this gem from the other day:

"The transcript put the lie to a week of Democrat media anonymously sourced reports falsely claiming Trump demanded Ukraine investigate the Bidens in exchange for US taxpayer cash. It also put the lie to the whistleblower complaint itself, which lied about or misrepresented the telephone call. However, NONE of this was reflected in subsequent Democrat media accounts, which continued to misrepresent the telephone call as a extortion attempt."

Meet Mick Mulvaney: "That’s why we held up the money.”

# posted by

Mista Whiskas : 1:20 PM

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# posted by

Joe : 1:34 PM

I think Franks book functions a lot like Sandy Levinson's work. Far too much of our talk about the Constitution turns into simplistic paeans to the wisdom of the Founders. What Sandy's work does is operate as a great corrective to that, saying , hey, a lot of what these guys did here really isn't that smart/moral! That's healthy (and ironically in the spirit of many of the Founders themselves, I'm thinking Jefferson here). What Frank's book does at best is say 'hey, there are some real costs to pushing the boundaries of the 1st and 2nd Amendments, and these costs tend to get borne disproportionately on vulnerable populations (while the benefits tend to go in the other direction to the better off populations).' This really has got to be focused on more even if it's ultimately rejected. There used to be a wide acknolwedgment that 'no right is absolute' and that 'society' had rights too and a balancing was called for. Almost the exact uber-characteristic of fundamentalists, cults extremists of all types is they hate, hate, hate balancing and vastly prefer black and white solutions that come close to espousing slogans at best. However bad this is for everyday political talk and solutions it's especially bad scholarship.

# posted by

Mista Whiskas : 1:34 PM

Prof. Akhil Amar in his writings notes the potential of taking the civic republican view of the 2A to its complete evenhanded conclusion. For instance, "the people" would clearly include GLBTQ people. This is an example of the potential reach of the amendment even under the state based militia model.

See also, juries where the people have a way to insert their views up to and including jury nullification. This is relevant in a case this Supreme Court term regarding unanimous juries (interestingly, Puerto Rico allows exceptions in various cases, also bring up complex questions).

Some tie the 2A to slavery per slave patrols, but that only takes one so far since the amendment mattered to non-slaveholding states too. In a wider sense, perhaps, that is not a full answer since protecting state power here was also used against non-slave groups without much power. This again is a lesson of the book. Grant some right to own a firearm for self-defense. You don't even need a 2A to do that. Look at how the rules regarding use are applied.

But, inequality broadly occurs and is not specifically tied to guns. But, ideas and violence are two areas where inequality very well pops up in practice. Likewise, both are used by those with less power in various respects and we cannot simply decide to ban them. It will be complicated. "The Constitution says so" only goes so far as is. Even more when we contemplate possible changes or responses.

Another reason to read the book with an open mind as to complexities.

# posted by

Joe : 1:37 PM

This comment has been removed by the author.

# posted by

Joe : 1:41 PM

I basically agree with the last comment.

"Cults" rob the complexity of things and in the process makes them seem more simplistic and bad [or good for that matter] than they really are.

This applies to both religion and the Constitution though as Sandy Levinson's works show, there are clear overlaps.

# posted by

Joe : 1:42 PM

BD: "The transcript put the lie to a week of Democrat media anonymously sourced reports falsely claiming Trump demanded Ukraine investigate the Bidens in exchange for US taxpayer cash. It also put the lie to the whistleblower complaint itself, which lied about or misrepresented the telephone call. However, NONE of this was reflected in subsequent Democrat media accounts, which continued to misrepresent the telephone call as a extortion attempt."

Mr. W: Meet Mick Mulvaney: "That’s why we held up the money.”

i used to give you the benefit of the doubt as willfully ignorant, but I am increasingly convinced you are simply a liar.

Mulvaney expressly stated the Bidens were not among the concerns involving military aid Trump started and temporarily suspended to Ukraine.

Mick Mulvaney summarized those concerns as follows: "I was involved with the process by which the money was held up temporarily, OK? Three issues for that: the corruption in the country, whether or not other countries were participating in support of the Ukraine and whether or not they were cooperating in an ongoing investigation with our Department of Justice. That's completely legitimate."

Mulvaney is referring to the current Justice Department criminal investigation of the Obama administration's 2016 spy and dirty trick operations against the Trump campaign, which involved several nations including Ukraine. Both the AG and the POTUS have been speaking to those nations in person and over the telephone to convince them to cooperate with the criminal probe.

Rep. Adam Schiff knew precisely to what Mulvaney was referring and found some cameras to attack the criminal investigation as "political."

As an aside, Justice is reportedly waiting for the Intelligence IG report to be issued in there next week or two before making their findings and potential indictments public. That is when things will get really ineresting.

# posted by

Bart DePalma : 2:11 PM

Sandy: "I've no doubt that she'd see the 2d A less as a bulwark of civic republicanism and more as a bulwark of slavery and white supremacy."

Mr. W: "Indeed, one oft-recognized need of colonial militia's was to protect against slave uprisings"

Of course, the tyrannical government seeking to keep the slaves and then the ex-slaves in line denied them the right to keep and bear arms.

Constitutionally guaranteed rights are not for the ruling classes, who are perfectly capable to taking care of themselves, but rather minorities whom those classes would oppress.

# posted by

Bart DePalma : 2:16 PM

So Bart pivots from the idea that holding up congressionally approved aid for one Bircher theory (Biden Burisma) would have been bad but holding it up for another Bitcher theory (the Ukraine election theory, part of another deep state spy theory) is totes different. Lol, it's wacky conspiracy theories all the way down!

Trump was right, he could shoot a guy on a busy street and Bircher rubes would come up with a way to still support him (probably a theory that it was really a deep state assassin hiding behind the President unreported by the Democrat media which is hiding WMDs and all the voter fraud and etc., etc.,). A movement of Birchers.

# posted by

Mista Whiskas : 2:39 PM

"Constitutionally guaranteed rights are not for the ruling classes, who are perfectly capable to taking care of themselves, but rather minorities whom those classes would oppress."

Of course our history speaks otherwise, the 1st and 2nd existed concurrently while blacks were enslaved, they not only helped them nought but we're actually invoked by their enslavers more often than not.

# posted by

Mista Whiskas : 2:41 PM

Mr. W: So Bart pivots from the idea that holding up congressionally approved aid for one Bircher theory (Biden Burisma) would have been bad but holding it up for another Bitcher theory (the Ukraine election theory, part of another deep state spy theory) is totes different.

Pivots? I corrected your lie concerning the subject of Mulvaney's statement.

And, no, there is zero legally or morally wrong about withholding aid to encourage a foreign nation to cooperate with a Justice Department investigation or any other national objective.

Keep spinning the Obama administration spy and dirty tricks operation against Trump. The Intelligence IG report is supposed to be as thick as a telephone book and the release delay is caused by the perps and their allies in the bureaucracy fighting to hide as much of it from the public through redactions.

Unfortunately, no report is going to break through the Democrat bureaucracy and media's information blockade and misrepresentations. The only way to break through to the general public are criminal indictments which are impossible to ignore. We'll see.

# posted by

Bart DePalma : 3:46 PM

1. Spy and dirty tricks? These were investigations preceding Trump's campaign of known foreign agent Kremlin stooges. And we're supposed to believe that Obama ran a 'spy and dirty tricks' campaign on Trump and then...sat on the information (even that an investigation involving his campaign officials was under way) while letting nothingburger info about an investigation into Trump's opponent leak like a sieve? Lol, you can't make this up.

2. Of course Bart did pivot, because he, like Trump and many supporters, originally defended him by saying there was no 'quid pro quo' re aid (you just changed your relevant conspiracy theory, but that's meaningless as Trump and his officials have conflated the two consistently -https://slate.com/news-and-politics/2019/10/corruption-trump-code-smearing-opponents.html). Now you say such holding up would be fine for either politically motivated investigation, I guess you didn't get today's conservative talking points as Trump supporters from Sekulow to Hannity are trying to throw Mulvaney under the bus (they realize not everyone's a credulous conspiracy rube and will see the blatant impropriety of holding up that aid for either of Trump's politically motivated conspiracy theory requests).

Again, you can always count on a Bircher like Bart to lack any self-awareness of how he's proving the very point leveled against him. I've noted that Bircher's like Bart are full of nutty conspiracy theories, shady cover-ups by multiple, multiple outlets coordinated and in power which everywhere are always up to no good; people like Bart literally cannot talk about anything without invoking conspiracy theory after conspiracy theory after conspiracy theory. I mean, take a look at his last comment (where any self-aware person that could help themselves would be trying to walk back a little bit on the Tom Clancy-Dan Brown paranoid fantasizing he's accused of exhibiting), he literally can't help himself. We've got a secret, powerful cabal of "Democrat bureaucracy," "Democrat media," "spy and dirty tricks operation" and a cover up in the works "the release delay is caused by the perps and their allies in the bureaucracy fighting to hide as much of it" [that's right, Bart's conspiracy theory here, like all of them, has metastasized to the point where the cover up has a cover up which has a cover up...]. And remember, this theory is an actual aside deflection from the original conspiracy theory (Biden Burisma)! They've not only got one for every occasion, it's virtually all they've got now. Just wacky conspiracy after wacky conspiracy...

This is the guy walking into the cafeteria with a shopping back yelling about socialism...

# posted by

Mista Whiskas : 4:31 PM

Mr W:

After lying about what Mulvaney said, you are lying about my posts...again.

# posted by

Bart DePalma : 5:22 PM

Bircher Bart's style of thinking:
https://m.youtube.com/watch?v=RXVE01oOTAM

# posted by

Mista Whiskas : 5:37 PM

First, kudos to Sandy for the open comments. Too many internet posters hide from feedback, they just don't want to hear it. While I often disagree with Sandy about this or that, he's not cowering in fear. He understands that dissent isn't an attack.

"I was personally appalled when Texas adopted an “open carry” provision, but was then surprised to discover that approximately 45 of the 50 states in fact have state laws adopting one or another form of open carry."

Objectively, why be appalled? Was there any evidence, any evidence AT ALL, that the spread of open carry had any negative consequences? Indeed, the fact that it could spread to 45 states with you unaware of it says, "No.".

Absent negative consequences, what basis can you have for being appalled? If it leads to no harm for people do do something, why shouldn't they be allowed to do it?

# posted by

Brett : 5:58 PM

I think what we're seeing here is what the right already understood: A large, maybe controlling, faction on the left do not value liberty itself. They view it as only having instrumental value.

So, when they expected the censors and the goon squads to be run by their foes, they made a show of valuing liberty for principled reasons. They founded the high-minded ACLU. But now that they reasonably expect the censors and the goon squads to be their own, the mask slips, and liberty no longer is a universal value anyone can appeal to. Now, error has no rights. Now the ACLU sees no need to defend liberty where it might work to the disadvantage of the left's goals.

The opposition to the 2nd amendment follows automatically, since those guns might get used on their own goon squads. They represent a very real and annoying limit on how far the left can go in ordering people about.

But these rights can't just be crushed, too many people value them. They have to be tainted, people have to be persuaded to reject them. And how better than to claim they are now, and always have been, just the means of oppression.

How better to clear the path for genuine oppression, than to claim all the obstacles in your way are themselves instruments of oppression?

# posted by

Brett : 6:34 PM

Brett:

When carrying firearms was considered a normal part of life, the law preferred open over concealed carry because you could immediately determine if someone was armed. Concealed carry was the province of criminals.

When carry became rarer, the law shifted to prefer concealed over open carry to keep from disturbing the sensibilities of folks like Sandy.

# posted by

Bart DePalma : 7:20 PM

Particularly because some of the people sharing Sandy's opinions would hassle you, but they needed to know you were carrying to do it.

But I view the spread of open carry as a sort of desensitization therapy. The left managed to drive gun ownership underground, so that about the only time non-owners would see a gun was when it was carried by a soldier, a cop, or a criminal. This greatly aided them in attacking civilian ownership.

We need to return to open carry, so that people get used to seeing ordinary people carrying guns in a law abiding and peaceful manner, to renormalize gun ownership in the public mind.

Now, Sandy is horrified and offended to see somebody walking down the street with a holstered gun. And he thinks this ought to inform public policy.

Suppose I were horrified and offended to see two guys playing tonsil hockey in public... Would Sandy agree THAT should inform public policy? I doubt it.

I want him to realize the extent to which he is letting his own irrational prejudices drive his policy preferences, and letting those policy preferences drive his understanding of constitutional meaning.

# posted by

Brett : 7:41 PM

This comment has been removed by the author.

# posted by

Joe : 8:30 PM

I had a longer comment but it had too many typos.

It is interesting on some level to listen to Brett express himself.

Kissing in public and carrying openly an item that if misused will cause significant damage (and some very well do -- only a small number is necessary here) do not really seem too comparable. Various differences can be cited. This is true even if you readily grant a right to a firearm, which in an early article SL basically did.

But, this "goon supporter" shall just leave it open as a thought experiment.

# posted by

Joe : 8:36 PM

I like guns, shooting and hunting can be fun and you might need one for defense (especially home defense). But the idea that most people have an anything but weird need to carry most of the time is itself weird. It's of course just another manifestation of the paranoid conspiracy type thinking that permeates so much of the right. You don't need to ward off blacks, black lives matter or black UN helicopters anytime soon, leave your piece at home with your Kevlar jacket beside your Alex Jones approved apocalypse rations.

# posted by

Mista Whiskas : 9:45 PM

Heer's a comment of mine at Gerard's recent post that I think is appropriate here as well:

***

Blogger Shag from Brookline said...
I endorse this recent post at this Blog:

****

Friday, October 18, 2019
Cicero on Trump

Guest Blogger

Charles Fried

Quo usque tandem abutere, Catilina, patientia nostra? Quam diu etiam furor iste tuus nos eludet?Quem ad finem sese effrenata iactabit audacia?

When, O Catiline, do you mean to cease abusing our patience? How long is that madness of yours still to mock us? When is there to be an end of that unbridled audacity of yours, swaggering about as it does now?

--Cicero, First Cataline Oration

Charles Fried is Beneficial Professor of Law at Harvard Law School. You can reach him by e-mail at fried at law.harvard.edu

Posted 4:50 PM by Guest Blogger [link]

***

Add to the developing picture, the selection for the G-7 meeting site in 2020. How long can Spam and Comrade Brett continue their charade defenses of their leader Trump? Recall how Spam in 2007 abandoned the Bush/Cheney SHIP OF STATE in the manner of rats. Check out the Archives of this Blog to confirm.

# posted by

Shag from Brookline : 8:04 AM

Bart: "As Sandy correctly observes, the Second Amendment guarantee of our right to keep and bear arms was primarily enacted to allow the people the means to stop such tyranny."

This was sentimental rubbish in 1787, as any surviving commander in the War of Independence knew from experience. (The militia had one political selling point, now irrelevant: they reduced the need for a standing army to guard against Native Americans and rebel slaves.) In 2019, the proposition is insane.

In May 1982, during the Falklands War, a single battalion of British paratroopers attacked a larger number of Argentine soldiers well dug in to strong defensive positions on a hilly isthmus at Goose Green. The paras had light and ineffective air support, and mainly relied on light field artillery for fire support. They won easily, though their commander, Col. H. Jones, was among the dead. The Argentine troops were conscripts in the regular army, a considerable step up from weekend militia. Still, they stood no chance against real professionals. The story was anticipated in WWII: the Vercors plateau seizure and the Slovak and Warsaw uprisings were easily defeated by second-string German regular troops.

# posted by

James Wimberley : 9:02 AM

Even Bart should be able to understand that relatively untrained troops stand no chance against properly trained and equipped ones. He should be familiar with the battle of 73 easting, in the First Gulf War, after all. And in that one, the trained troops were up against supposedly crack soldiers (albeit not as well trained) with tanks, not merely handguns.

But perhaps these gun fetish folks imagine they'll be like the Viet Cong, fighting a guerrilla campaign against a corrupt government. In that case, I'll merely mutter something about how those irregulars were backed by totalitarian regimes, not by freedom-loving ones...

# posted by

C2H5OH : 9:27 AM

"Kissing in public and carrying openly an item that if misused will cause significant damage (and some very well do -- only a small number is necessary here) do not really seem too comparable."

Really? Ever looked at STD stats? Or the epidemiology of STDs?

Look, the point is, Sandy finds open carry offensive, and thinks that personal opinion should somehow dictate public policy, and even how the Constitution is interpreted, even though he can produce no evidence that open carry has negative consequences.

But that's no different in principle from the guy who finds gays being affectionate in public distasteful. Even if there weren't a 2nd amendment, the lack of demonstrable harm would be decisive. Given that there IS an explicit constitutional right involved, even a moderate level of harm wouldn't be legally relevant, not that such harm can be demonstrated.

The harm from guns is volitional, they don't go off on their own and kill people. We don't restrict ownership of photocopiers because people might use them to forge currency, we don't regulate pens because people can write hold-up notes with them. We outlaw the harm, not the instrument which is mostly not used to harm.

....

What we've got here isn't a cult of the Constitution. What we're looking at is a cult against the Constitution. The people who are being attacked as "cultists" are just demanding the government actually obey its founding document. The real cultists are demanding that their irrational fears and political preferences override the highest law of the land.

# posted by

Brett : 9:32 AM

C2H5OH:

A government can crush its foes abroad, because when you invade another country, you don't need to leave its economy intact to fund your army, you don't need its farms running to feed your soldiers, you don't need the people happy with you so that employees of your government don't fear for their lives.

What a government can do in another country, and what it can do at home, are completely different things. So, sure, you can imagine the Air Force bombing NRA headquarters from 10,000 feet, you can imagine the Army mowing down armed civilians who obligingly formed up in ranks to be mowed down.

Can you imagine a thousand OK city bombings? Can you imagine the politicians who voted for this not being able to show their faces outside guarded enclaves for fear of assassination? Can you imagine people ceasing to pay their taxes, refusing to sell the army food?

You haven't the slightest clue what would happen if the US government tried treating its own territory like Iran.

# posted by

Brett : 9:38 AM

"Really? Ever looked at STD stats? Or the epidemiology of STDs?"

Wow. I can get an STD from 2 gay guys kissing in public? What's the MSD?

"The harm from guns is volitional, they don't go off on their own and kill people. We don't restrict ownership of photocopiers because people might use them to forge currency, we don't regulate pens because people can write hold-up notes with them. We outlaw the harm, not the instrument which is mostly not used to harm."

Good point. We should treat guns just like we do heroin.

# posted by

Mark Field : 10:28 AM

Since comments aren't open on Prof. Lederman's post, I'll just note that the distinction between Burr and Trump is that Burr actually had ability.

# posted by

Mark Field : 10:30 AM

"Can you imagine a thousand OK city bombings? Can you imagine the politicians who voted for this not being able to show their faces outside guarded enclaves for fear of assassination? "

Oh I'm sure Brett can, he probably spends a great deal of time imagining it.

I guess he'd engage in these red dawn Bircher fantasies with a photocopier and a pen too!

# posted by

Mista Whiskas : 10:52 AM

BD: "As Sandy correctly observes, the Second Amendment guarantee of our right to keep and bear arms was primarily enacted to allow the people the means to stop such tyranny."

James: This was sentimental rubbish in 1787, as any surviving commander in the War of Independence knew from experience. (The militia had one political selling point, now irrelevant: they reduced the need for a standing army to guard against Native Americans and rebel slaves.) In 2019, the proposition is insane.

You are missing the point.

No one expected untrained militia / armed citizenry to win pitched battles with regulars. Rather, the militia controlled territory. The latter is key in a guerrilla war.

For this reason, so long as the Americans did not surrender, it was impossible for the British to win the Revolutionary War. The relatively small contingent of Redcoats could not control more than a handful of cities and towns, while the rest of the sprawling colonies belonged to the patriot militias.

Today, so long as the armed citizenry does not surrender, it is impossible for our military to win a second revolutionary war in defense of a tyrannical federal government. The tens of thousands of actual combat arms troops (the rest are support) might be able to hold the Capitol and a handful of other cities. The rest of of our far larger continental country would belong to the armed citizenry.

For pitched battles, Constitution granted Congress power to maintain a standing army and to call up, equip and train the militia.

# posted by

Bart DePalma : 11:02 AM

Hamilton and other regulars in the Continental Army were rather cynical about the abilities of the militia. But, the militia did serve a limited value there. Plus, the militia is not really there to replace the regular military. As Thomas Jefferson said in his first inaugural: "a well-disciplined militia, our best reliance in peace and for the first moments of war till regulars may relieve them."

The organized militia was most useful with a smaller population. This was also before modern police forces. The modern police force probably does as much or more to clash with the basic principle of the Second Amendment than the average gun regulation.

But, as noted by Justice Alito in McDonald v. Chicago, there was a shift in understanding n antebellum times and the 2A grew to be understood to be more concerned with individual self-defense. The understanding of what was better -- open or concealed carry -- also developed over time though there always was some limits on open carry and the basic reality that a select group of people (lots of gun owners, as Mr. W. notes, do not feel a need to carry a gun around) openly having a gun will change the dynamic of public interpersonal relations. It is not some sort of weird fetish on Sandy Levinson's part, akin to not liking blond hair or something.

# posted by

Joe : 11:21 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 11:23 AM

C2H5OH said... Even Bart should be able to understand that relatively untrained troops stand no chance against properly trained and equipped ones. He should be familiar with the battle of 73 easting, in the First Gulf War, after all. And in that one, the trained troops were up against supposedly crack soldiers (albeit not as well trained) with tanks, not merely handguns.

My Gulf War battle was "Medina Ridge" where elements of our brigade and the adjacent one destroyed the Iraqi Republican Guard Medina division in about 20 minutes. We would have obliterated a group of untrained armed civilians even faster. HOWEVER, an armed citizenry does not assemble and offer itself for obliteration on an open desert plain.

Guerrilla wars are the product of numbers and space.

Today, our armed citizenry consists of an estimated 150 million spread across millions of square miles of national territory. During the Revolutionary War, maybe a third of the population supported the patriot cause. Let's conservatively halve that for a modern revolution for a total of about 25 million armed citizens in open rebellion.

In comparison, the US Army can field about 60,000 infantry soldiers supported by tanks. artillery and aircraft. The rest are all support. This is the equivalent of a few large city police departments who barely keep the lid on crime in their jurisdictions. This might double if the National Guard answers a call to federalize during a revolutionary war.

Even stretching the doctrinal frontage of the Army units, this force could not control more than maybe 1% of the nation. The rest belongs to the armed citizenry.

# posted by

Bart DePalma : 11:25 AM

This comment has been removed by the author.

# posted by

Joe : 11:34 AM

As an aside, I am working on the second draft of an alternative history novel exploring what would happen if the Axis nations defeated the UK in 1940, took the Middle East oil and teamed up to invade the US before it rearmed. This scenario is a pretext to explore what would happen if our armed citizenry faced off against a fascist war machine with few moral limits in a total war told primarily from the point of view of the men and women on the ground level of that holocaust. The closest analogy would be the war between the partisans and SS in occupied Russia with a far larger group of American partisans.

Dark, dark stuff.

# posted by

Bart DePalma : 11:36 AM

The harm from guns is volitional, they don't go off on their own and kill people. We don't restrict ownership of photocopiers because people might use them to forge currency, we don't regulate pens because people can write hold-up notes with them. We outlaw the harm, not the instrument which is mostly not used to harm."

Gun accidents are a major cause of injuries, including when misused by minors. "Killing people," to be clear, is not the only concern here. Gun regulations were in place from the beginning and not merely because the alternative is killing people. There are various concerns including change of injury.

Guns and non-guns are not regulated the same way since they are differences. Thus, e.g., we allow five year olds to buy comic books. We don't generally allow them to buy fully operative guns aside from the toy variety.

We do "restrict" copying to some degree to prevent counterfeiting. So, if a law is in place to regulate how a public business that might have the means to mass produce illegal currency more than a single person uses its technology, it very well might not violate the First Amendment. And, we do limit speech itself in a range of ways (some I don't like -- obscenity laws generally; some are fine -- perjury, true threats, fraud, copyright, disclosure laws of varied type etc..

We do outlaw various things that cause harm, at least the production and sale of them. There are a range of laws of that sort. Sometimes that involves speech. Not that we ban guns totally. That is only what a small group wishes. D.C. v. Heller supports a range of regulations. But, then, Brett thinks that opinion is thin gruel.

I put a pen in my back pocket. It might explode and stain my pants. But, a gun is handled somewhat differently. The comparison only takes us so far and the law always have recognized this reality.

# posted by

Joe : 11:38 AM

# posted by

byomtov : 11:53 AM

Can we expect Comrade Brett and Gulf War hero Spam with their at times self-expressed views as anarcho-libertarians and as revolutionary 2nd A absolutists to take up arms against federal and state governments in their quests to keep America white? Are they willing to put their lives on the line for their cause? Of course if they fail, it's treason, as defined in the Constitution and statutes. The Gulf War was short what with overwhelming forces by the US and its allies. I would thank Spam for his service but his suggested novel might suggest that deep down Spam may not be an American patriot. Spam wasn't around during WWII. If he were, he might have sided with Lindbergh and other America Firsters, just as Spam and Comrade Brett today seem to support their America First leader Trump. I wonder what American troops who served in the Gulf War think about Trump's inanities with Syria abandoning the Kurds, our allies in the fight against ISIS.

# posted by

Shag from Brookline : 12:00 PM

In a nation of over 300 million people, there were under 500 fatalities from firearms accidents in 2017. You are significantly more likely to drown in a swimming pool or die falling from a ladder, than to die of a firearms accident. Many times more likely to die by tripping and falling down stairs.

We don't normally consider falling from ladders as a major cause of death in America.

Yes, we have restrictions on copying to prevent counterfeiting; It's illegal to counterfeit using a photocopier. We prohibit the crime, not the means to commit it.

Gun control advocates try to restrict peaceful ownership of a constitutionally protected article, not as a means to fight crime, but because they are hostile to the right in question. All else is just rationalization and pretext.

Well, your hostility to the right is legally irrelevant until you manage to get it repealed. Again, this isn't a cult of the Constitution, it's just people insisting that the government be lawful. If you don't like the law, I direct your attention to Article V.

# posted by

Brett : 12:08 PM

byomtov said...We outlaw drunk driving, despite the fact that many - probably the vast majority - of those who drive with BAC over the limit arrive safely at their destination. In other words, we outlaw behavior which poses great risk of harm to others. And that's precisely what carrying guns around does.

The behavior of using a firearm to harm others are already outlawed with severe penalties. Merely carrying a firearm as guaranteed by the Second Amendment and many state constitutions provisions harms no one.

The idea folks who carry are more likely to harm others only exists in the minds of firearm prohibitionists. The number of folks carrying under the various state laws who then commit a crime with that firearm is vanishingly small. I think I have read reports of one or two accused of crimes.

The reality is the vast majority of illegal uses of firearms to harm others (homicide and aggravated assault) are perpetrated by drug gangs fighting over turf in less than 2% of the counties in our nation. The rest of the nation is basically peaceful, most especially in areas where people actually open carry.

# posted by

Bart DePalma : 12:09 PM

Shag: Are they willing to put their lives on the line for their cause? Of course if they fail, it's treason, as defined in the Constitution and statutes.

I belong to the most fundamentalist cult of the Constitution, those of use who swore to put their lives on the line to "support and defend the Constitution of the United States against all enemies, foreign and domestic."

I abide by that oath to this day and there are millions like me.

# posted by

Bart DePalma : 12:18 PM

Comrade Brett and Gulf War hero Spam may openly carry in their majority white communities, possibly to intimidate minorities of color. I wonder how Comrade Brett and Gulf War hero Spam would react is suddenly minorities of color would carry openly in their neighborhoods. Might Comrade Brett and Gulf War hero Spam feel threatened?

# posted by

Shag from Brookline : 12:23 PM

Shag:

Nearly everyone I know in my multiracial neighborhood is armed. The local gun shop runs concealed carry classes for all comers and seeing people open carry is not unusual.

# posted by

Bart DePalma : 12:28 PM

Comrade Brett, does the Constitution call for your version of your cult to act on your own, without approval of federal and state governments? The Militia clauses to not protect revolutionaries. Keep in mind the definition of treason. Comrade Brett, are you prepared to put your life on the line? Have you ever done so?

# posted by

Shag from Brookline : 12:30 PM

I wonder how multiracial Spam's rural mountain top community is. How about some numbers?

# posted by

Shag from Brookline : 12:33 PM

In a nation of over 300 million people, there were under 500 fatalities from firearms accidents in 2017.

Gun owners are regularly quite concerned about proper use to guard against injury to person and property. Handwaving the importance of this because of a limited number of deaths would bring scorn from many. Yes, "injury." That is what I said.

Yes, we have restrictions on copying to prevent counterfeiting; It's illegal to counterfeit using a photocopier. We prohibit the crime, not the means to commit it.

We prohibit the "means" to commit various things. It cheapens constitutional liberty to defend it with such weak gruel.

For instance, guns like other items have to be produced following certain safety requirements. We prohibit the production and sale of unsafe foods, cars and so forth too. A 'well regulated' militia includes this general idea and Heller cites some history.

Gun control advocates try to restrict peaceful ownership of a constitutionally protected article, not as a means to fight crime, but because they are hostile to the right in question. All else is just rationalization and pretext.

Guns have been restricted since the beginning as has speech. The right is not absolute. Rights in society involve regulation. That is what freedom means in society. The very text of the Second Amendment references a well REGULATED militia. You yourself regularly, as you must since it's so obvious, accepted basic traditional common law restrictions.

Moving past "cults," constitutional liberty deserves and needs more nuance.

Well, your hostility to the right is legally irrelevant until you manage to get it repealed. Again, this isn't a cult of the Constitution, it's just people insisting that the government be lawful. If you don't like the law, I direct your attention to Article V.

I support the right to own firearms. I have said this against some people I agree with on other issues. Like with speech, guns are regulated.

# posted by

Joe : 1:16 PM

This comment has been removed by the author.

# posted by

Joe : 1:34 PM

I wonder how multiracial Spam's rural mountain top community is. How about some numbers?
# posted by Blogger Shag from Brookline : 12:33 PM

20% white
30% whiter
50% whitest

# posted by

Bartbuster : 1:37 PM

The "government" is flagged in a comment.

The 2A was ratified with the understanding that the militia is a governmental institution. The POTUS could call up the militia for federal service and is the commander-in-chief. A governor would be the head of each state militia. States passed laws to regulate the militia, including training. The charm though is that it was an institution of "the people" -- not a select group. This is why I noted that the modern police department is arguably a major issue here.

The jury is another instance of a people at large having the right to be a direct part in the government. Another would be petitions (see 1A) and public ballot measures (see the 10A). The jury was seen as a basic defense of liberty. It is not a ridiculous statement to show that governmental institutions are an important matter of personal liberty.

In time, the 2A was seen as more of a matter of individual self-defense. There were as noted a traditional set of common law restrictions there in place since liberty in society is ordered liberty. As Mark Field has noted, with that in mind, the importance of D.C. v. Heller is up to some debate, depending on its scope.

===

Note too that the 1A speaks of "peaceful" assembly. Armed bands was not really what they had in mind there and the same applies today if we think things out. At the very least, guns in public places seriously complicates things and requires special regulation. Strong debate on the terms here again is different than comparing it to kissing or hair color.

# posted by

Joe : 1:40 PM

BB:
Gulf War hero Spam may personally claim that he is multi-racial while Comrade Brett will remind us that he sired a multi-racial son (Asian American). Why some of my best friends are ....

I don't know if Comrade Brett and Gulf War hero Spam have read Marty Lederman's post that was inspired by Charles Fried's post. If Comrade Brett and Gulf War hero Spam did read Marty's post and are aware of Trump's narcissistic past that was well exposed during the the 2016 campaign - and since in Trump's presidency of almost 3 years, perhaps Comrade Brett and Gulf War hero Spam'saddles minds might get the message sent by Alexander Hamilton. Perhaps Comrade Brett and Gulf War hero Spam have "burrs" under their saddles.

Here's Comrade Brett's closing at 12:18 PM: "I abide by that oath to this day and there are millions like me."

That's hard to imagine based upon Comrade Brett's history of comments at this Blog. Do these millions share Comrade Brett's childhood grievance with Mexican farm laborers in Northern Michigan in pulling red radishes? Are these the "stout hearted men" of a popular song gong back to the 1930s-40a? Comrade Brett is more of a lemming than a leader. How well0regulated are these claimed millions in the image of Comrade Brett?

BB, we know what our colorful Comrade Brett and Gulf War hero Spam really are.

# posted by

Shag from Brookline : 3:13 PM

Shag:

All the "people of color" (of which I suppose I am one because I am as tan as AOC) on my street are part of mixed couple relationships with kids of all shades. If I apply the one drop rule of your party of racism, I suppose there are about a couple dozen Euros, about eight Hispanics of various shades, and three African Americans. We used to have an Asian, but I think he moved.

I'm sorry if this does not meet whatever racial quotas exist in the racial fevers swamp of your mind, but frankly, the issue never comes up in my neighborhood gatherings.

# posted by

Bart DePalma : 3:32 PM

Joe: The 2A was ratified with the understanding that the militia is a governmental institution.

Not hardly.

There has always been an organized and unorganized militia under American law, the latter of which included at minimum any military age male and was not a "government institution" until called to duty by Congress or a state legislature.

# posted by

Bart DePalma : 3:38 PM

Bart DePalma3:32 PM
Shag:

All the "people of color" (of which I suppose I am one because I am as tan as AOC) on my street are part of mixed couple relationships with kids of all shades. If I apply the one drop rule of your party of racism, I suppose there are about a couple dozen Euros, about eight Hispanics of various shades, and three African Americans. We used to have an Asian, but I think he moved.

I'm sorry if this does not meet whatever racial quotas exist in the racial fevers swamp of your mind, but frankly, the issue never comes up in my neighborhood gatherings.

Reply

You're the one who brought it up, champ. And Woodland Park is white AF.

# posted by

Bartbuster : 4:07 PM

"I don’t have any trouble with latter-day critiques of Sullivan; I’ve offered some myself, but it is vital to understand why Black’s and Douglas’s dismissal, in their concurring opinions, of all of defamation law seemed so attractive at the time."

The actual answer is "Black and Douglas were two of the dimmest bulbs to ever serve on the Court, and like many dim bulbs thought they had come to the brilliant solution that nobody else had thought of. In their case, they thought that they could solve all the problems of freedom of speech by simply pretending the competing interests didn't exist." (Mixed in with a little of "they recognized competing interests too, but they did it by arbitrarily defining some things as "conduct" rather than "speech".)

I might add that Black and Douglas had this particular character trait in common with many conservative originalists, who also think they are far more brilliant than they are and that they have "solved" constitutional law with mechanical rules.

# posted by

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# posted by

Jane Morrison : 5:25 PM

I don't think the fact that the Second Amendment probably had something to do with the Slave Power gets you anywhere in terms of interpretation, any more than the fact that the Electoral College and the Senate were part of the Slave Power as well. It's worth remembering, because, it's generally worth remembering that this country was founded by awful people and we really shouldn't give a hoot what someone who raped his slaves claimed to think was the appropriate role of government. (I used "claimed" very deliberately there- lots of people made lots of bad arguments about the role of government because such arguments were necessarily to ensure they could continue to rape their slaves, which they cared more about than any airy conception of the proper role of government.)

When you interpret the Second Amendment, the text tells you what the stated purpose was. It doesn't say anything about the Slave Power, even if that was an ultimate motivation. It says a well regulated militia is necessary to the security of the free state.

Rarely do statutes or constitutional provisions come with instruction manuals, but this one did. It is saying "we're going to secure a right of members of the general public to keep and bear arms because that will allow them to form militias that protect the government".

And importantly, the same Constitution contains a treason clause that specifically states you have no right to wage war on the federal government. Despite what some framers said.

So when interpreting the Second Amendment, the point is to keep it within those two poles.

# posted by

Dilan : 5:28 PM

See also, juries where the people have a way to insert their views up to and including jury nullification. This is relevant in a case this Supreme Court term regarding unanimous juries (interestingly, Puerto Rico allows exceptions in various cases, also bring up complex questions).

Jury nullification is an amazingly overdiscussed topic.

The law is actually perfectly clear that while nobody can stop a determined jury from nullifying, courts can impose any reasonable impediment to prevent it. Including such things as prohibiting nullification arguments and giving curative instructions, instrucing the jury it can't nullify, excluding jurors who say they are willing to nullify, removing jurors from the panel who urge nullification in deliberations or refuse to deliberate, and prosecuting jurors for perjury who violate their oaths.

Literally NONE of this would be constitutional if there was actually some "right" of the jury to nullify. Juries have the same right to nullify that a criminal has to commit a crime she isn't going to get caught committing. In both cases, sure, if you can keep the secret, you can, in fact, do something. But if you get caught, you will be stopped from doing it.

# posted by

Dilan : 5:33 PM

"Kissing in public and carrying openly an item that if misused will cause significant damage (and some very well do -- only a small number is necessary here) do not really seem too comparable."

Really? Ever looked at STD stats? Or the epidemiology of STDs?

Which (unless you want to count something like Mono, which isn't really an STD) you can't get from kissing....

# posted by

Dilan : 5:35 PM

Query: What American law has provided for the "unorganized militia going back in time? Our Gulf War hero Spam seems to be pulling this out his derrriere. We know about the Militia clauses in the 1787 Constitution The 2nd A ratified in 1791 did not amend the Militia clauses. Recall that the Militia clauses were "inspired" during the Constitutional Convention in recognition by the Framers of the threat to government, state and federal, imposed by Shays' Rebellion in MA just before the call of the Convention.

# posted by

Shag from Brookline : 5:37 PM

There has always been an organized and unorganized militia under American law, the latter of which included at minimum any military age male and was not a "government institution" until called to duty by Congress or a state legislature.

It is quite true that there is a concept of an unorganized militia. (Not sure I would say it wasn't a "government institution", but I am also not sure that matters. You are right it is unorganized and when unorganized is effectively not within the control of the government.)

But... the Constitution contains clauses, and the framers enacted a statute, that grant the government a substantial amount of power to organize, discipline, call up, compel into service, and otherwise regulate the militia.

And that's super-important when talking about the meaning of the Second Amendment. The modern agenda of the NRA- which has intimate connections with the arms industry- is a anarcho-libertarian unregulated market where the maximum number of weapons with the maximum number of deadly features can be sold, and where gun owners can dissent from society and fantasize about being John Rambo and going up against the disliked federal government.

But the actual notion of the Second Amendment was much closer to that of a citizen-army, like you see in Switzerland-- an armed populace, regulated, disciplined into an effective fighting force, that could come to the defense of the state.

You can think of those two states of being as unorganized and organized militia. And the Constitution clearly gives the political branches the power to move us towards the organized state.

# posted by

Dilan : 5:41 PM

Shag:

The Militia Act passed by the first Congress defined the militia as all free males between 18 and something like 45 years old. So Bart is right about the concept of an unorganized militia.

The same statute provided that the government could organize it, however.

# posted by

Dilan : 5:43 PM

Juries have the same right to nullify that a criminal has to commit a crime she isn't going to get caught committing.

My use of "way" allows me to avoid determining if there is some "right" of a juror to nullify.

The understanding of the role of the jury changed over our history. In early years, there was more of an understanding a juror might have the power to decide the law and the facts. In time, the jury (last I checked a few states have limited exceptions as to jury nullification, but yes I was talking about some national constitutional rule) was seen as a fact-finder.

The nature of the criminal jury [unlike the average crime] makes it by the very nature of the institution very hard to stop nullification, which often is given a crutch by using some alleged reasonable doubt. It is quite apparent, by reasonable use of the word, juries nullify. The verdict of acquittal is not reversed unlike an unreasonable civil judgment. The "quixotic" nature of juries has been understood to be part of the deal. Duncan v. LA.

There is as noted limited power to stop them though they can be warned ahead of time. Perjury surely is not a likely limit realistically. Pena-Rodriguez v. Colorado shows piercing the sanctity of the jury room is controversial even when a guilty verdict allegedly is tainted by racism.

I watched a presentation recently that included a former prosecutor and he discussed how he knew the black juries (he himself is a black man) in certain cases nullified. Local juries do that in various cases; local prosecutors via their discretion do so as well in choosing what to prosecute. It's part of the nature of the institution though it can be abused.

How much time the topic deserves is a tad subjective.

# posted by

Joe : 6:52 PM

So when the draft was in effect, those subject to the draft were part of an "unorganized militia"? What is the definition of an "unforganized militia"? Straining at gnats. While the 1787 Constitution's Militia clauses were not amended by the 2nd A ratified in 1791, the 2nd A's prefatory clause specifically referred to a "well regulated Militia." Words in the Constitution and in statutes have meanings. Where is there reference in the Constitution and statutes to "unorganized militia"? "Straining" is contrary to "well regulated."

# posted by

Shag from Brookline : 7:11 PM

Dilan: Rarely do statutes or constitutional provisions come with instruction manuals, but this one did. It is saying "we're going to secure a right of members of the general public to keep and bear arms because that will allow them to form militias that protect the government".

Mostly correct.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Second Amendment as written makes perfect sense once you understand the "militia" = "the people."

When applied to the military units of the time, "well-regulated" simply meant disciplined or able to shoot well. The Militia Clause provided Congress with the power to train the militia.

But, a "free state" means a free society and does not refer to the state or federal governments.

In short, the primary reason to have an armed citizenry is to protect our freedoms from enemies foreign and domestic.

# posted by

Bart DePalma : 7:16 PM

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# posted by

Dilan : 7:20 PM

Shag:

See https://en.wikipedia.org/wiki/Militia_Acts_of_1792#Second_Militia_Act_of_1792_(full_text)

When applied to the military units of the time, "well-regulated" simply meant disciplined or able to shoot well.

This is only true if you take a broad definition of disciplined. It meant disciplined, trained, subject to rules, subject to organization and command, etc.

You can argue that not everything we would think of as a "regulation" would qualify, but just about anything we would consider a proper regulation IMPOSED BY A MILITARY COMMANDER would be. And the NRA might very well not like a lot of those types of things.

# posted by

Dilan : 7:23 PM

This comment has been removed by the author.

# posted by

Dilan : 7:24 PM

Joe:

In practice, sure, juries nullify.

But in practice, criminals get away with crimes they are never caught for. Big crimes. E.g., whoever did the anthrax attacks after 9/11 got away with them. But also tons of smaller crimes. The bulk of petty theft and financial fraud in this world is never detected.

But we wouldn't consider the notion that criminals get away with crimes if they can avoid being identified to either give rise to any idea of a "right" to commit a crime, or to be worthy of a particularly significant amount of scholarly interest. They aren't supposed to do it, they do it, they get away with it, the world goes on.

That's exactly how jury nullification works. It's not permissible under modern law (I really don't care if people 200 years ago were stupid enough to have jurors judge the law- we're smarter now in many ways and that's one of them.) It's not a right that jurors have. We're entitled to stop it. But sometimes lawbreaking jurors cover their tracks and get away with it.

(I should add, however, that preventing nullification is definitely outside of any notion of "no piercing of the jury deliberations". That rule-- which is subject to a lot of exceptions anyway-- is simply not applicable to reports by jurors to the judge during deliberations. Any juror can always go to the judge to report another juror's misconduct, and that never is considered to be a piercing of deliberations. If the judge finds that a juror is actually in there urging nullification, the juror can most definitely be removed.)

# posted by

Dilan : 7:25 PM

"The Militia Act passed by the first Congress defined the militia as all free males between 18 and something like 45 years old."

We're getting pretty far off topic here, but this is incomplete. The actual words were "free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act..."

# posted by

Mark Field : 7:51 PM

I'd say my statement was complete.

# posted by

Dilan : 8:48 PM

According to our Gulf War hero Spam, from the beginning "unorganized militia" could determine that a state was no longer free and could take up arms, unorganized, to make the state free. And if the unorganized militia failed, then what? OOOPS? Our Gulf War hero Spam is going through these contortions to defend the likes of the Bundys and perhaps our Gulf War hero Spam'l "unorganized militia" in his rural white mountaintop community. Fail and you land in jail, if you survive the rebellion.

# posted by

Shag from Brookline : 9:14 PM

Shag: And if the unorganized militia failed, then what?

When considering whether to sign a Declaration of Independence which decreed the people have the right to change tyrannical governments, I am sure the founders were asking that question.

In that day, treason was punishable by hanging if you were lucky.

Hanging, drawing and quartering for high treason had not yet ended in England.

No need to concern yourself over such things, though. You are more than content to love and obey Big Brother.

# posted by

Bart DePalma : 11:16 PM

Really? Ever looked at STD stats? Or the epidemiology of STDs?

You mean you can get an STD from seeing a couple - but only a same-sex couple - kissing in public?

That surpasses even "Indians not taxed" in the Bellmore Hall of Idiocies.

# posted by

byomtov : 12:36 AM

It's apparent that our Gulf War hero Spam is having a meltdown with his 11:16 PM comment. Now we have BREAKING NEWS! The Grifter-in-Chief has announced by trees that the 2020 G-7 conference will NOT he be held at theG-I-C's Doral Golf Course. That's a humongous REVERSE MULIGAN by the G-I-C, and probably very worrisome to our Gulf War hero Spam and Comrade Brett. Our G-I-C's pull out of Syria recalls that during the 2016 campaign then candidate Trump when questioned on the matter of dealing with Turkey stated that he had a potential conflict of interest with Turkey because of the Trump Towers [plural] in Istanbul. The ild of Trump's base represented by Comrade Brett were impressed highly with Trump's "The Art of Deal"which he did not write and by the TV highly scripted "The Apprentice. That ilk cannot admit it's ignorance. That's not patriotism, just stupidity. And Trump is having a meltdown as all Trump roads lead to Putin. The removal of Doral might appease Republicans temporarily. But the meltdown will continue. Trump has to be concerned with whether his Trump Enterprises can survive.

Now let's hear from Comrade Brett and our Gulf War hero Spam, as they get caught up in the meltdown. Will they, like rats, abandon the Trump Ship of State?

By the Bybee [expletives deleted], our Gulf War hero Spam's closing line at 11:16 PM makes reference "to love and obey Big Brother." In this era of Trump, Trump is 'Big Brother.'" AG Billy Barr has Trump's derriere.

# posted by

Shag from Brookline : 6:48 AM

Is our Gulf War hero Spam at 11:16 PM suggested that he will be signing a "Declaration of Independence"? Might Comrade Brett be a co-signer? I wonder what such a "DOI" would spell out? What a maroon.

# posted by

Shag from Brookline : 6:55 AM

The Declaration of Independence of 1776 was by the 13 American Colonies from England and its King. Our Gulf War hero Spam's suggested "DOI" in his 11:16 PM meltdown fails to identify against whom independence would be declared. Might it be the State of Colorado, or ... drum roll ... the federal government or some other entity? Off hand, our Gulf War hero Spam, MASTER DEBATER that he attempts a cheap move to deflect from the traps he has fallen into. Our Gulf War hero Spam's injection of a "DOI" in his comment is a cheap debater trick with a faux effort at patriotism. Will our Gulf War hero Spam continue his meltdown until comments on this thread shut down at 9:30 AM? Meantime, I'm getting ready for the Sunday political TV shows focusing on Trump's meltdown.

# posted by

Shag from Brookline : 8:17 AM