Friday, June 20, 2014

Is Heller the new Lopez?

Gerard N. Magliocca

In recent weeks various bloggers and commentators have noted that the Justices seem uninterested in taking another Second Amendment case.  Certiorari petitions were denied this Term on a couple of major gun control issues that have divided the lower courts, and the Court has not taken a Second Amendment case since 2010.  This leads me to wonder if Heller is the new Lopez.

While Lopez is an important symbol for limits on Congress's enumerated powers and seemed like a big deal at the time, in practice the case did not do much to rein in those powers.  Will the same true be true for Heller?  The decision is surely valuable for the NRA and other gun rights' groups, but thus far it has also not led to much change in the courts (aside from a few lower court opinions).  Gun regulation also would not look much different today if Heller had come out the other way.  Second Amendment advocates would have attacked the case as wrong and concentrated on more legislative successes.  Likewise, were gun control advocates set back by Heller?  Maybe a little bit, but they started doing poorly in Congress in 1994--well before Heller.

Some cases are very important for academics and for their statement about constitutional values (Bond and the Treaty Power is a recent example), but not for lawyers and policymakers.  Heller is looking like one of these eunuchs. 


though I disagree with your analysis, I very much approve of your use of the term "eunuch" to describe Heller and Lopez et. al.

Might Heller be the high water for the 2nd A? Perhaps the eunuchs are the SCOTUS majority in both Heller and McDonald, especially with recent attempts by open carriers invading court houses.

As to US v. Lopez (1995), perhaps it should be revisited because of the proliferation of school shootings involving commerce in guns and ammo.

The ruling put states and feds on notice of a certain floor and the laws struck down in D.C. and Chicago alone were far more significant than the largely token one in Lopez (that mostly was just handled by tweaking things a tad). The ruling also led to a few other laws struck down in some fashion.

So, I think Heller is not as much as an eunuch as all that, though surely less strenuous (so far -- it hasn't been that long & 1A precedents in the 1920s on took time to develop) as some might have liked.

And, as seen in the ACA case, the overall principles of Lopez has some bite and restrains the law. The overall state federalism principles particularly as seen in the Medicaid portion of the ruling, one even Randy Barnett gave only 30% chance of winning (though hard to take him totally at face value).

Echoing Joe, I think Heller and McDonald have a bit more significance than Lopez. The law in Lopez was immediately reenacted with a nominal "finding", but I would say it has survived subsequent review more as a matter of very careful selective enforcement, than legal solidity. They've hardly enforced it at all, for fear of generating a good test case.

By contrast, Heller and McDonald are being litigated all over the place, with very much mixed results. That's part of why the lack of cert requires explanation: There's a glaring disagreement between the circuits that begs to be resolved, and the Court isn't doing it.

I think what we're seeing here is that the Court is waiting for this to become more settled politically. The minority aspire to being a majority, and want to minimize adverse precedents before that happens. (Not that they'd hesitate to overturn such precedents, but they'd rather not generate them in the first place.)

While the majority doesn't much see the point in extending this, if it's just going to be overturned in a few years. If forced to take a case, they'll rule to uphold the 2nd amendment in some form, but they're not eager to do it.

I think what will happen is that the Court will refuse such cases until the balance on the Court is changed. If one of the majority is replaced with an anti-gunner, the first available test case will be taken, to reverse both Heller and McDonald, no matter how much screaming it causes. If one of the minority is replaced with a pro-gunner, the Court will start addressing the circuit splits.

For now, the Court has thrown it back into the political realm. Doing the least they could, and then retreating from the field. Cowardly, but to be expected.

Brett's closing:

"For now, the Court has thrown it back into the political realm. Doing the least they could, and then retreating from the field. Cowardly, but to be expected."

seems to ignore that the majority in both Heller (2008) and McDonald (2010) were acting in the political realm. With their dicta, the majority were aware there had to be some semblance of avoiding the wild, wild west. The majority are aware of what has been happening with 2nd A absolutists since these decisions, turning out to be, perhaps, prescient with their dicta, rather than cowardly. The 2nd A should not be the tail that wags the Constitution.

Yes, I generally ignore things that are false. Striking down laws which violate explicit constitutional guarantees is one of the Court's core duties. That such laws will typically be the product of political processes not withstanding.

Ergo, Brett generally ignores himself.

Brett accuses the conservative majority of being cowardly with Heller and McDonald. But perhaps the real cowards are those who carry openly to intimidate with potential firepower in public places, demonstrating what they perceive to be their manhoods; and speaking of eunuchs, these cowards should grow a pair.

Jim Newton's LATimes 6/19/14 review of two books: "Mixed verdict on Supreme Court in 'Uncertain Justice,' 'Court of One'" includes this:

"They are similarly clear-eyed in considering complicated questions of privacy and guns, two areas that pit historic ideals against modern technology and mores. But whether the Second Amendment confers an individual right to bear arms or not — Justice Antonin Scalia, writing for a five-member majority of the court, for the first time in its history found that it did — the Heller ruling nevertheless left ample room for gun control, a fact wisely noted by Tribe and Matz."

I don't know if there has been revealed details of how the majority got to five in Heller. Were there trade-offs, such as including extensive dicta? Might such trade-offs be influencing the failure of granting cert since McDonald (2010) to a 2nd A case?

"for the first time in its history found that it did"

No, not at all. You can go back the Dred Scott case, where Taney gave as an example of the horrors of admitting that blacks were people, that they'd be entitled to own and carry about guns. What do you suppose that was based on, the 10th amendment? The natural born citizen clause? No, it was the 2nd amendment.

US v Miller, a case where a felon ran afoul of the NFA, the circuit court found in his favor that the act was a clear violation of... the 2nd amendment. The Supreme court did not, as gun controller lore has it, reverse the lower court. They merely remanded it to the lower court to determine whether the firearm in question was suitable for militia purposes, and thus of the sort the 2nd amendment guaranteed the people, even people like Miller, a right to.

No, it's an utter fiction that Heller was the first time the Supreme court acknowledged this right was individual. Merely a convenient fiction, for those who look forward to Heller being reversed in a few years.

The 2nd A references "people." Pre Civil War Amendments, what specific provisions in the Constitution provided that slaves were not "people"? There was a distinction between "people" and "citizen." Slaves may not have been citizens, but were people. Perhaps Brett deep down agrees with CJ Taney in Dred Scptt (based upon his blog comments over the years). Back then the 2nd A limited the central government, not the states, and the slave states mostly enacted statutes that were a form of gun controls to keep slaves unarmed.

I finished "Written in Stone" by Sandy Levinson, GM's fellow blogger. The book is about the meaning of public monuments but he also touches upon his view on judicial review, a mixture of prudence, constitutional theory and realism. This seems to apply here.

I'm glad to somewhat be on the same page as Brett, but continue to disagree with the "coward" framing. The ruling is anyway a piece of others that only go so far. The justices as a whole have a limited view of what the courts should do, though having bite.

And, again, it is typical for courts to decide only so much. Heller was a major statement. It only happened a few years ago. The development of the law on the 1A is telling here.

I don't think they were "cowardly" in the 1930s to rule narrowly and leave a lot of exceptions, many of which were narrowed significantly over time, including, e.g., commercial speech. To cite someone, "judicial fiat" requires finesse.

It should be kept in mind that Article III, which is not that detailed, has been construed by the Court, going well back in time, as authorizing the Court to rule only on an actual case or controversy before the Court, not to render advisory opinions. But the Justices may, in opinions, provide dicta. Some might argue that the use of dicta might be a form of advisory opinion but I don't think that is a strong case. Determining what constitutes the Court's decision in a particular case or controversy is sometimes not that simple. A reader of the Court's decision may pluck out a "reason" given as a decision by the Court, but that would be over reading the actual decision made by the Court.

I don't think they're cowardly to refuse to rule on more than the case on hand. But, keep in mind that the Court spent 68 years, between Miller and Heller, refusing every last 2nd amendment case, and did so without any concern about circuit splits and very real rights violations. They had no shortage of actual cases at hand to take. THAT was either cowardice, or actual malice.

Now they're apparently doing it again. There are glaring circuit splits out there, and perfectly good test cases to resolve them, those cases at hand you want them limited to, and the Supreme court is again, without any explanation or hint of a good reason, refusing them cert.

Again, either cowardice or malice. I know it's malice on the part of four of them, but since certiori only takes four votes, that leaves cowardice on the part of at least two.

Perhaps Brett might inform us what dictionary/dictionaries he is relying upon for the definition of "malice" as he uses it, or is he Humpty Dumpty-ing?

Apparently Brett is of the view that the holding in Dred Scott was that the 2nd A involved an individual right and not a collective right. Query: Could a slave back at that time frame be a member of a state militia in slave and/or non-slave states?


Which major gun control issues do you see dividing the lower courts?

I have been waiting for the Court to finally determine what standard of review applies to Second Amendment cases. I suspect that there is a division on the Heller/McDonald majority on that subject, which is why that majority is not addressing the issue.

Perhaps the "standard of review" has something to do with the number of school shootings and other gun violence just since McDonald. While technically perhaps not a matter of formal judicial notice, do the Justices in the majority in Heller/McDonald stick their heads in the sand especially with recent courthouse open carry events? Perhaps the majority in Heller/McDonald learned a lesson from CJ Taney's Dred Scott opinion that contributed to the breakout of the Civil War.

Our CO gasbag refers to a possible division in the Heller/McDonald majority on a standard of review. I am not aware of the machinations, trade-offs inside that majority that led to the decisions. Perhaps at some point in the future via leaks or papers of certain Justices that become pubic, we may find out.

The 2nd A absolutists are in a rush. But in the constitutional scheme of things, the 2nd A should not be the tail that wags the Constitution.

Brett, our pictorial EUNUCHLEHEAD, offers up "MALICE IN SCOTUSLAND," perhaps thinking he can goad the majority to take another 2nd A case to satisfy his 2nd A absolutism AND anarcho libertarianism. What a legacy that would be.

Paul Clement, probably causing cognitive dissonance coming from the administration that went out of their way to officially state they found the 2A protects an individual right, pushed for intermediate scrutiny during the Heller orals.

CJ Roberts for one seemed annoyed with worrying about that sort of thing. Kennedy often prefers somewhat hazy standards too. Scalia probably would find various exceptions appropriate (because, you know, history or something) whatever standard is used. 1A has strict scrutiny and there are a range of regulations.

I do think standards (we know it isn't rational basis) is one issue to settle. Another would be some more clarity on use of guns outside of the home.

I predicted at the time that Heller would not amount to much, whichever way it came out. Time will tell, but so far, so good. It may not be a "eunuch," but it will take a double dose of Viagra before it rises again.

The testosterone levels of 2n A absolutists seem high, at least in their own minds, as they are anxious to lock and load.

The idea that we actually have a reasonable basis for our views is just inadmissible for you, isn't it? Got to be "testosterone", or "fear", or anything at all but sweet reason and evidence.

It would be somewhat more annoying, were it not the pathetic complaints of a partisan of a losing cause.

You can go back the Dred Scott case, where Taney gave as an example of the horrors of admitting that blacks were people, that they'd be entitled to own and carry about guns.

I doubt it enhances your argument to cite Dred Scott. In any case, Taney was fear-mongering on this point. In 1857, the 2A didn't apply to the states because of Barron v Baltimore.

"I doubt it enhances your argument to cite Dred Scott."

Doesn't particularly hurt it; As you yourself demonstrate, the sort of ideologues who still take the race card seriously are pretty closed minded on the subject of the 2nd amendment, too.

Oh, I agree Taney was, to some extent, fear mongering. But he was doing so in a way which would have made no sense at all, were it not that the 2nd amendment was widely understood to guarantee an individual right. Even if that right, pre-14th amendment, wasn't understood to extend to the states.


"It would be somewhat more annoying, were it not the pathetic complaints of a partisan of a losing cause."

ignores his accusations of the Heller/McDonald conservative majority as cowardly and/or malicious in not granting cert on taking more 2nd A cases. So, to repeat:

"Brett, our pictorial EUNUCHLEHEAD, offers up "MALICE IN SCOTUSLAND," perhaps thinking he can goad the majority to take another 2nd A case to satisfy his 2nd A absolutism AND anarcho libertarianism. What a legacy that would be."

And notice how Brett evades responding to critiques of his CJ Taney Dred Scott comments.

Apparently "sweet reason and evidence" for Brett consists of intimidation with firepower.

I agree Taney was, to some extent, fear mongering. But he was doing so in a way which would have made no sense at all, were it not that the 2nd amendment was widely understood to guarantee an individual right.

I think there's general agreement that around roughly 1860 the 2A was seen to protect an individual right. The debate involves claims that it did so in 1791.

Taney could, of course, been referring solely to the right to bear arms in a militia, but that's not clear from his comment.

"The debate involves claims that it did so in 1791."

And, in that context, and given all the evidence, that there is still a "debate" demonstrates that some people just can't admit they've been proven wrong.

There has never been a time in the history of the US, from the 2nd amendment's drafting, to this very moment, when it was not generally understood to guarantee an individual right. The legal community has, during the last half century or so, been taken by a fad of asserting the opposite.

But it was a fad in the teeth of the evidence, motivated by a belief that if lawyers agreed to deny the obvious, the right could be abolished.

Dred Scott v. Sandford has multiple relevant references here.

Taney lists white only militia as evidence that blacks were singled out as not having rights. As I have noted repeatedly, this underlines that even a right to equally be armed in a militia when called up to serve would be a big deal.

He also cites a range of privileges of citizenship, such as freedom of movement and "to keep and carry arms wherever they went." Note this is different from the 2A language. And, in context, it was regarding "as far as white men had such a right." Many, e.g., cite a common law right here that is separate from the 2A.

But, Heller was specifically about the 2A. It's like claiming the federal law against a specific abortion procedure was unconstitutional because it overreached the Commerce Clause. That wasn't issue presented when the USSC upheld the law 5-4.

[Prof. Levinson, e.g., agrees with the result in Heller, but not much of its reasoning. He cites, e.g., the 9A as a better possibility. To the degree people think there is NO individual right here, I think they are wrong.]

Then, he specifically cites the language of the 1A, 2A etc. to argue the limits of Congress' powers, which he assumes applies just as much in "a territory" as individual states. This was far from common sense at the time, nor is actually quite the law now (see, the Insular Cases).

This was covered basically in Prof. Levinson's thread.

"Prof. Levinson, e.g., agrees with the result in Heller, but not much of its reasoning."

Reading this, I'm mostly left confused. He likes the outcome. He likes Breyer's reasoning better than Scalia's. But Breyer's reasoning would have dictated the opposite outcome!

Perhaps the best reading of this, would be that Sandy liked the outcome on a policy level, (Thinking that, on that level D.C. went too far.) but really dislikes the ideal of any sort of genuinely enforceable right. He wants to keep gun ownership a (barely?) tolerated privilege, instead.

Of course, neither side will stand for that. Gun owners have an explicit right in black and white in the Constitution, and aren't going to stand still for it being erased, still less by judicial fiat. Gun controllers oppose the right because they don't want it exercised, even as a privilege. (Except maybe one restricted to their own mandarin class, and it's loyal servants.)

Sandy needs to pick a side, I think, he's in the incoherent middle, where one, in those famous words, "isn't even wrong".

From Brett's link:

Again, my view is that the best of the Heller opinions was Justice Breyer’s. I was equally dismayed by Scalia and Stevens. For me, both of them demonstrated why judges are not reliable historians. That being said, I had no real problem with the result in Heller, so I would have adopted much of Breyer’s analysis but ended up arguing that a truly “prohibitory” regime like DC’s did raise serious Second Amendment issues. My view is that the best brief was that submitted by Paul Clement as Solicitor General, which called on the Court to remand to the DC Circuit for consideration under a more properly focused standard of review.

More here:

My interpretation is that he rejects the in his view sloppy history of both Scalia and Stevens in lieu of an individual right crafted in a different fashion but thinks Breyer goes too far in acceptable regulations.

This in part is influenced by his support of entrusting the public today (who currently accept an individual right) more with constitutional interpretation within some limits. The courts going too far in either direction would be a problem, both pragmatically and as a matter of his general constitutional principles.

I think this reflects what the general public supports. The usual gloss by two regulars is duly noted.

Brett now seems to be goading Sandy. Does Brett think that Sandy could convince the Heller/McDonald conservative majority to grant cert on more 2nd A cases, Justices that Brett describes as cowardly and/or acting with malice in not doing so to satisfy Brett's 2nd A absolutism AND anarcho libertarianism? Brett suffers from high anxiety.

There has never been a time in the history of the US, from the 2nd amendment's drafting, to this very moment, when it was not generally understood to guarantee an individual right.

I have to say that this is delusional. Personally, I don't care all that much which way the 2A argument goes, as long as the same "reasonable restrictions" policy which applies to the 1A also applies to the 2A. But to pretend that your side has not just the better of the argument, but the ONLY side of the argument is evidence that you're so invested in the result that you can't see the issue at all.

"I have to say that this is delusional."

I have to say that you're not providing any contrary evidence.

I've provided, in the past, evidence from the founding era, (Shag simply asserts that Madison was 'humoring' Coxe.) From about the time of the civil war. About the time the NFA was adopted. (As a tax, explicitly because a ban would violate the 2nd amendment.) Today we have polls.

And yet, you think it delusional to believe what this evidence shows.

No, there has never been a time when the 2nd amendment was not, popularly, understood to guarantee an individual right. The legal community have, lately, been taken up in a fad of believing, or asserting, the opposite. Politicians have found the right inconvenient.

But the Court did not create the idea of the 2nd guaranteeing an individual right. That's been around from the beginning.

"Personally, I don't care all that much which way the 2A argument goes, as long as the same "reasonable restrictions" policy which applies to the 1A also applies to the 2A."

I'd be cool with that. No prior restraint? Having to demonstrate actual harm to justify restricting conduct? No preemptive bans on new tech? That would be a vast improvement over the current status of 2nd amendment rights, where restrictions can be based on mere speculation about whether they make life a little harder on criminals.

You don't see anyone proposing magazine limits on printers, so that counterfeiters are inconvenienced by the need to hand feed sheets. Or newspapers being limited in circulation to reduce the worst case for libel. Or banning laser printers, on the basis that the 1st amendment only applies to Franklin's offset press.

No, treating the 2nd amendment like the 1st is essentially the goal of us "2nd amendment absolutists".

I've been hors de combat blog-wise but see that Brett, our pictorial EUNUCHLEHEAD with his MALICE IN SCOTUSLAND continues his rants, including against Sandy.

Here's Brett recent parenthetical:

'(Shag simply asserts that Madison was 'humoring' Coxe.)"

Simply? Perhaps Brett's Coxe induced testosterone erased from his mind the rather extensive comments of mine on the thread at Sandy's recent post with over 180 comments} concerning Madison/Coxe. My recess is too short to paste them in here, but I'll attend to that when prepared to enter combat blog-wise later today or tomorrow.

Mean time, let's note that the recently proposed Texas Carry group called off its foray into an African American neighborhood, presumably with the message that open carry also privileges those in the African American community as well, although the African American community may not be able to afford comparable arsenals. Why was it called off? Who know? Perhaps Texas Carry volunteers were concerned with the subjectivity of self-defense on the part of some in that African American community, including snipers.

Breet seems to be a sponsor of what may be termed "CARRY NATION." This of course differs significantly from the 19th Century
"CARRIE NATION" movement which would be at loggerheads with Texas Carry. Query: Should operating an AK-47 under the influence of booze or drugs overcome alleged subjectivity of self-defense?

Brett tries to set up the 1st A's no prior restraint on speech/press for the 2nd A. How might that work? Shoot (publish) first, then ask questions later (murder/assault & battery or libel)? And with military style arms in the hands of an unregulated non-state militia made up of white males who don't like the changing demographics?

And consider the breading news in Mississippi with Thad Corcoran seemingly pulling through with crossover votes from African Americans in the Senate race. (I understand that the challenger hasn't given up.) Perhaps an inspiration for this crossover had something to do with what happened in Mississippi 50 years ago.

Brett's closing:

"No, treating the 2nd amendment like the 1st is essentially the goal of us '2nd amendment absolutists'."

is wishful thinking as that goal, unlike the 1st A, kills and maims, especially with the desired military grade arms in the hands of unregulated non-militia who retain as a goal when they deem it necessary attacking a state government as well as the central government (aka insurrection).


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It is not that there is no "evidence" for one side that Mark Field is concerned about. It is Brett's argument that his is the "only" argument that is non-delusional or not some "lying" attempt of "gun grabbers."

There is a cottage industry on this subject from all directions. As usual, constitutional analysis has no "one" end result, now or in the past. This issue not being any different -- there were many on various spots of the spectrum on this issue.

Likewise, "reasonable" does not mean that the end result will be exactly the same as the 1A. For instance, young minors have the right now to buy books. They don't have the right to buy guns on the same level. There is overlap.

You're right, there's no problem with lying gun grabbers inventing things. The whole Bellesiles affair?

My imagination.


I didn't say that. Not seeing a desire to actually respond to what I said, I'll move on.

Look, Joe, I'm pretty familiar with the evidence on this score, and the thing is, it IS very one-sided. Bellesiles didn't commit his fraud just to pile on. He did it because, without fraud, he didn't have a case.

Why are advocates of gun control almost without exception living constitutionalists? Because the original meaning is easy to find, and hostile to their views.

Why don't they have their own compilation of quotes from the founding era, like our guncite? Because the quotes don't exist.

It can be irritating to people who expect all questions to be muddy, but this one isn't.

Brett brings this up again:

"The whole Bellesiles affair? "

He's just one historian. Brett admits that Scalia's history is bad in Heller. So does that mean that all justices are bad when it come to history?

In Heller, a "historians' amici brief was filed in support of the Petitioners, to wit: Jack N. Rakove, Saul Cornell, David T. Konig, William J. Novak, Lois G. Schwoerer, et al (which did not include Bellesiles). The Table of Cited Authorities includes no reference to Bellesiles.

And there is the amici brief also in support of Petitioners of Professors of Linguistics and English Dennis E. Baron, Ph.D., Richard W. Bailey, Ph.D. and Jeffrey P. Kaplan, Ph.D.

Historians and Linguistic/English scholars provide textualism standards to the 2nd A.

Brett takes the fact that Madison listened to Coxe's views, thanked him, as in effect an incorporation by Madison of Coxe's views. But under what principles of textualism or any version of originalism is such incorporation supported? Keep in mind that the 2nd A as passed by Congress (of which Madison was one member only) and what is the evidence that other members of Congress were aware of Coxe's views, and if they were, whether they thanked Coxe as well? The actual words matter. None of the views of Coxe are included in the 2nd A as passed by Congress and ratified by the states, such as self-defense, individual, hunting, etc. It is the original meaning of the 2nd A that should count. as laid out by the historians and linguistics/English scholars.

But Scalia, a textualist and sometimes originalist, was criticized for his bad history in Heller, and his linguistics was not very cunning.

Imagine, Madison said "thanks" to Coxe and Brett incorporates Coxe's views into the 2nd A as passed by Congress and ratifies by the states. That's a quantum leap even for Brett.

Sure, there were people back then who believed in an individual right, self-defense, etc, but that doesn't determine the original meaning of the actual text of the 2nd A. Keeping in mind that Heller/McDonald were each 5-4, this could change. That together with the changing demographics is what Brett as a 2nd A absolutist AND anarcho libertarian fears. And to repeat:

"Brett, our pictorial EUNUCHLEHEAD with his MALICE IN SCOTUSLAND continues his rants, including against Sandy."

"He's just one historian."

Who a bunch of other historians gave a prestigious award to, despite the fact that his work was already widely known to be a piece of crap. Even I, just an interested layman, couldn't get five pages into that book without experiencing "wtf" moments. Like when he re-wrote the 1792 Militia act to be more agreeable to his thesis. Took a public document any historian could look up in moments, and changed the words. *I* noticed that, and professional historians didn't? Seriously?

That Bellesiles ever got withing spitting distance of the Bancroft award was an indictment of historians. His book wasn't even a competent fraud, it was so easy to detect. Hundreds of thousands of Americans, mere laymen, could spot it for dreck in an instant. And we're to believe the professionals took that long to notice? It's as thought the Piltown man had been constructed out of Legos, and still passed professional scrutiny

"Sure, there were people back then who believed in an individual right, self-defense, etc, but that doesn't determine the original meaning of the actual text of the 2nd A"

Thanks for admitting that, in as much as that was the point I was making, that it has been understood, popularly, to be an individual right all along. And so the Court didn't have to invent anything in Heller to find it was that. They just had to refrain from going to great lengths to deny it.

"but that doesn't determine the original meaning of the actual text of the 2nd A"

And it doesn't have to, because it says, "right of the people", and everybody who isn't utterly committed to denying the existence of an individual right understands that doesn't mean, "power of the government".

It says "right of the people". That puts the ball in your court to demonstrate that it wasn't understood to guarantee a "right", of the "people". And that's where you fall down. You haven't produced anything to demonstrate that it was understood as a 'right' to be armed during military service, and nothing more.

You can't, because that thesis is WRONG, and there's no evidence to support it.

And the historian's brief you cite? Generated by Bellesiles' defense team. Seriously, it's a list of historians who leapt to believe Bellesiles fraud, and dragged their heels afterwards in admitting it was a fraud.

What a sterling endorsement of their competency and objectivity.

Brett apparently hasn't read - or understood - either the historians' or linguistics/English Scholars amici briefs. And Brett ignores "The first clause is what linguists call an absolute construction or absolute." (Linguistics/English Scolars' brief page3, as further elaborated throughout, with extensive cites of sources.)

As to the historians' brief, if Brett actually read it, what errors can he identify in their citations backing up their historical analyses of the meaning of the actual words in the 2nd A as enacted by Congress and ratified by the states? And Brett continues to fail to come up with a legal rationale under either textualism or originalism that incorporated Coxe's views other than a "Thank you" from Madison to Coxe after listening to Coxe. Original intent doesn't pull this off because Madison was only one member of Congress that enacted the 2nd A and then there were the many ratifiers at the states' levels. Paul Brest did a number on "original intent" in the 1980s.

By the way, the Linguistics/English Scholars' brief sets forthe what Madison originally drafted as the 2nd A:

"The right of the people to keep and bear arms shall not be infringed: a well armed and well regulated militia being the best security of a free country: but no persons religiously scrupulous of bearing arms,shall be compelled to render military service in person." (Page 13.)

As to history provided by Justices and judges, what do you say, Brett? How good are they on history? At other threads at this Blog I have referenced critiques on their failings, as well as the "law office history" of advocates before the Court. Even Brett concedes that Scalia can be bad at history, now branding him as either a coward or acting with malice in not granting cert on more 2nd A cases, with Brett's "Malice in Scotusland" mode.

As to objectivity, Brett's is measured by his 2nd A absolutism AND anarcho libertaianism, all in for unregulated non-state militia bordering on potential insurrectionism against state governments and the central government, despite the actual text of the 2nd A as enacted by Congress and ratified by the states. Brett is too Coxe-minded.

Pushing past personal comments, I appreciate Shag's extended historical remarks here. I think history is useful here, but has to be looked at completely and ultimately is but one factor.

Today's recess appointment ruling providing some usefulness here. As noted at

In his Opinion of the Court, Justice Breyer emphasizes early in the opinion that “in interpreting the [Recess Appointments] Clause, we put significant weight upon historical practice.” For support for this, he offers lengthy quotations from McCulloch v Maryland (1819) and from an 1819 letter written from James Madison to Spencer Roane in which he writes that it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter… and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” From these and other sources, Justice Breyer concludes: “[T]his Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.” With regard to the question before the Court, he writes: “We have not previously interpreted the [Recess Appointments] Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.”

I'm all for citing history, preferably further than 1792 (or 1868) here, but also know the limits and complications of history. This is from personal experience not reading just "one" history, but many. And, the limitations of such an endeavor.

I do reach various conclusions on this and other subjects (e.g., abortion, which also has been submitted to historical analysis) but with perhaps a bit more salt than some people.

Anyway, as Mark Field notes, at the end of the day, people might get to the same basic place. If humility gets you a result, I find it often is the best policy.

Over at Larry Solum's Legal Theory Blog there's a link to "Judicial Ideology and the Selection of Disputes for U.S. Supreme Court Adjudication" by Political Scientists Jeff Yates et al that Solum recommends. It is a quick read, focusing on political science literature. It doesn't address Brett's "cowardly" and/or "Malice in Scotusland" charges against the majority in Heller/McDonald for not granting cert on more 2nd A cases but it is an interesting read. (It does reference the 1st A.)

The approaches of political science on this matter differ from the legal academy as the former uses models.

I just finished rereading the amici briefs I had referenced. (I had read these and other briefs in Heller back at that time.)

At pages 30-33 of the "historians' brief" addresses:

"The Second Amendment Is Best Understood As An Affirmation Of Federalism Values, Which Helps To Explain Why The 'Insurrectionist' Theory Of Its Origins Is Fallacious"

closing with this:

"These two clauses [Militia Clause and the Republican Guarantee Clause of Article IV of the 1787 Constitution] were the Framers' direct answer to the deficit of authority that the Massachusetts [Shay's] rebellion exposed. It beggars the historical imagination to think that the same Federalist congressmen who wrote the Second Amendment were intent on protecting a popular right to insurrection."

Donald L. Drakeman's "What's the Point of Originalism?" got a "highly Recommended!" at Larry Solum's Legal Theory Blog (where a link is provided). I was earlier aware of the article from a post at the Originalism Blog.

Drakeman points out that the Constitution does not require the Court to provide reasons for its decisions. He raises the question whether judicial supremacy prevails over the elected Executive and Legislative branches. And he brings up Humpty-Dumpty on what he means when he uses a word.

There is an interesting anecdote on CJ Marshall that points out his legal training/experience was limited and that he would write out his decision in a case and give it to Justice Story to find the law to support the decision.

The most interesting aspect of the article for me is "III. The Originalism 2012 Survey" on the public's approach to how the Court should interpret the Constitution.

What part does history play with the public? Does the public believe that the Justices have historical qualifications that can be relied upon rather than professional historians? Drakeman doesn't address this in any detail. I do not fault Drakeman as his focus is upon what the public expects from the Court's decisions. The public may not be aware of the travails of "law office history." How important should reliable history be? Might the public accept "Humpty-Dumpty" styled history?

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but I would say it has survived subsequent review more as a matter of very careful selective enforcement, than legal solidity. They've hardly enforced it at all, for fear of generating a good test case.
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