Al Jazeera has just posted my review of Justice Stevens's recent book Six Amendments: How and Why We Should Change the Constitution. I am obviously sympathetic to the project of changing our defective Constitution, and I agree with many (though not all) of his proposed amendments, but, as those you look at the review will see, I'm perplexed by a) why he thinks we need formal amendment rather than simply replacing several of the current conservative Republican justices with better judges who would be nominated and confirmed by Democratic presidents and senates (and isn't it easier to contemplate that happening than the revving up of the Article V machinery in order to attack, say, admittedly terrible decisions on sovereign immunity) and b) why he focuses entirely on what I call the "Constitution of Conversation" instead of paying even a smidgen of attention to the Constitution of Settlement and its own independent (and, I think, more important role) in explaining our current unhappiness. Of course, the answer to b) is that he is a (very able) judge who is trained to think of the Constitution as consisting only of the Constitution of Conversation, as is true, alas, with most law professors.
I know that it is unlikely, but I would prefer that any discussants have actually read Stevens's book (as well as the linked review, and talk about it rather than about my own shop-worn ideas which are familiar to all of you and really need no further discussion at this point.
" a) why he thinks we need formal amendment rather than simply replacing several of the current conservative Republican justices with better judges "
ReplyDeleteSeveral reasons, I think.
1. He TRIED accomplishing all of these by judicial fiat, and failed, and is no longer in a position to try it anymore.
2. As an actual justice, he's aware that, even if he views the Court as a perpetual constitutional convention, empowered to make any changes to the highest law of the land a bare majority feel like, he dares not admit to viewing the Court that way. The Court has to retain at least some gloss of legitimacy, and to openly rule the way you propose would be the death of the Court's reputation.
3. Several of his amendments are sufficiently unpopular to be the stuff of revolution if imposed by fiat on a population not first brought around to at least regarding them as within the bounds of reason. Perhaps he's set that as his task.
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ReplyDeleteThe discussion reminds me of the income tax ruling (Pollock) which was 5-4 and there was some debate on the proper way to handle it. Amendment eventually determined best. Arguably wasn't necessary.
ReplyDeleteI take it that "judicial fiat" is being used here neutrally since obviously both sides here did that if that means overruling democratically passed legislation via judicial review.
Anyway, if so, Justice Stevens has lived long enough to see various constitutional developments & even if short term failure is present, long term, there still is room for success.
SL argues, it seems to me, that this is more pragmatic than relying on amendments. Not seeing the "stuff of revolution" stuff either myself as a whole.
As to "perpetual constitutional convention," putting aside the use of exaggeration, long term, yes, the Constitution provides a lot of flexibility with changing views on what "speech" or "equal protection" or other things mean, including as knowledge (e.g., homosexuals are not mentally ill) or experience (e.g., the state of interstate commerce) changes.
And, long term, he saw how this changed in part with new personnel. It was not the "death of the Court's reputation," e.g., when one vote (Alito) affected multiple major cases, including by "judicial fiat" to overturn democratically passed legislation.
His long life does suggest the temporary nature of relying on that though. Amendments -- see, e.g., the 14A discussed in a fellow blogger's book on John Bingham, might be more permanent.
It is harder to pass amendments but letting people sue states to obtain civil damages for violations of constitutional rights or even letting individual states have more power to regular firearms still might be easier than redoing the Senate.
Some people find actually having a constitution confining. The same people tend to find the fact that states are more than simple administrative districts infuriating, since this stands in the way of instantly imposing their preferred policies across the entire nation.
ReplyDeleteSuch people, knowing that abolishing the constitution is untenable at the moment, do all they can to get judges to treat it as though it were not a constitution. Changing it without amendments, ignoring whatever parts are found inconvenient.
This is not an honest approach to law.
Yes, the stuff of revolution. It may be comforting, when you want constitutional changes which have been decisively rejected by the public, and would be political suicide to attempt to implement by amendment, to think that the American people have no limit to what they will tolerate. It's not a terribly smart fantasy to indulge, though.
You are speaking in rhetoric.
ReplyDeleteStevens, e.g., is against the death penalty. He personally also thinks it is unconstitutional. But, he accepted in Baze v. Rees that we have a certain system in place. So he concurred in upholding the execution as he discussed.
I don't think the public "decisively rejected" what is deemed unconstitutional in Citizens United. The fact that one justice changing decided the case is sort of dubious on that point. I don't think they "decisively rejected" allowing state universities to be sued for damages for patent violations.
This doesn't require making states "simple administrative districts" ... though when he wants to give said states more power in another context (guns), you, by "judicial fiat" if necessary, of course aren't so state friendly.
Thus, the need for nuance, not rhetoric and wishing people go to hell, like you did with Stevens a week or so back for proposing amendments that in some fashion probably -- if they were altered somewhat especially -- a majority probably supports in some fashion.
Of course, amendments require more than a majority. Until then, "judicial fiat" etc. will uphold the current one.
BTW, did read SL's op-ed, and will check out the book probably when it comes to the library. I for somewhat different reasons also am wary about it.
Stevens' comandeering amendments would render the states mere administrative districts; They would no longer have any area of sovereignty where they got to make choices even if the federal government didn't like them. They'd have to do the federal government's bidding in everything, their own constitutions and the federal constitution not withstanding.
ReplyDeleteStevens' effective repeal of the Second amendment is proposed in a nation where most states have 2nd amendment analogs in their state constitutions, where openly supporting gun control is political poison over most of the nation. The last federal gun control law was 20 years ago, barely passed, and resulted in an election that made sure it could never pass again, as well as the rise of the militia movement.
And you think it would be reasonable to overturn Heller and McDonald? That would be like overturning Brown in 1974, only on steroids. THAT would be revolutionary in it's consequences.
Sandy:
ReplyDeleteI have no real desire to read the Stevens book and can only speculate that the retired justice believes that stare decisis requires amendments to reverse the prior decisions with which he disagrees.
I cannot see any of these amendments gaining the support of the voters electing 2/3 of Congress or 3/4 of state legislatures. As an institution, there is no reason why state legislatures would want to cede what is left of their sovereignty or their powers to apportion congressional districts and determine their own criminal punishments.
You are correct that the only way to change the Constitution as Stevens proposes are for progressive judges to rewrite it.
Ok, I've now read your review. I'll read Stevens' book when I find a way to do it without buying it; Perhaps they have it at the local library.
ReplyDeleteYour discussion of his repeal of the 2nd amendment, (Let's be clear, that is the essence of the proposal, that the 2nd amendment be rendered utterly without effect.) is very troubling.
Of it, you correctly observe that, "To support this would be the equivalent of drinking political hemlock for all but a few politicians ensconced in extremely liberal urban districts." It is similarly true that no such amendment would originate from a Constitutional convention, unless the delegates were chosen in a highly undemocratic and unrepresentative way. And, were such an amendment to somehow, miraculously, be sent to the states, it would stand no chance of ratification. You could count on the fingers of one hand the states that would likely ratify.
The reason for this is that the amendment is intensely unpopular. Few people would approve of it, many would loath it with a passion. We have had a national debate on gun control, and the gun controllers lost it.
That Article V is not a feasible route for repealing the 2nd amendment, or the first, or rendering the states utterly subject to federal whims, is not evidence that Article V is broken, or outrageously difficult to use. Any amendment process has to achieve TWO goals: First, to make popular amendments possible. Second, to make unpopular amendments impossible. Stevens' amendments are not infeasible because there's something wrong with Article V, but because only a highly undemocratic process could impose them on a nation which rejects them.
Your response to this? That the practical thing to do is to simply get 5 votes on the Supreme court, and judicially render the 2nd amendment a nullity, judicially impose all of Stevens' amendments on an unwilling and outraged nation.
Do you have no concern at all for legitimacy?
"unless the delegates were chosen in a highly undemocratic and unrepresentative way."
ReplyDeleteLike our current Senate? Or our gerrymandered House?
They would no longer have any area of sovereignty where they got to make choices even if the federal government didn't like them.
ReplyDeleteThis is hyperbole, putting aside you want "judicial fiat" to have the power to overrule what elected officials authorize here. The Constitution provides limited national powers, such as patent power, and it is only to that where this would be covered.
They'd have to do the federal government's bidding in everything, their own constitutions and the federal constitution not withstanding.
This has been covered already. This is a dubious reading of what the text does as well as what is meant to do. Are you seriously under the impression that Stevens suddenly thinks the feds are not restricted here as to a range of constitutional rights he repeatedly supported in his opinions as applied to state action?
Stevens' effective repeal of the Second amendment is proposed in a nation where most states
"most" means not all ... this includes some populous states. They don't' matter or something?
Again, this is argumentative -- it assumes a certain view of what the 2A means, one not presumptively the law of the land by clear SCOTUS rule until the 21st Century. One where "judicial fiat" (TO QUOTE YOU) overruled popularly passed legislation, one that Congress under its power over DC let pass.
have 2nd amendment analogs in their state constitutions
with various levels of scrutiny, a few, like a populous state like MA months before McDonald v. Chicago holding it does not. But, "judicial fiat" here is okay.
where openly supporting gun control is political poison over most of the nation
A supermajority supports "gun control" in a variety of ways. Heller supports "gun control" in a variety of ways.
The last federal gun control law was 20 years ago, barely passed, and resulted in an election that made sure it could never pass again, as well as the rise of the militia movement.
A majority supported a gun control rule in the Senate last year, supported by two NRA supporters, but the filibuster rule blocked it.
And you think it would be reasonable to overturn Heller and McDonald?
I don't support overruling it but people would not think it a "revolution" to support "gun control" as you define it. They somehow allowed that before Heller changed things a decade ago, and even that supports "gun control" in a variety of ways. One reason I oppose that amendment.
That would be like overturning Brown in 1974, only on steroids. THAT would be revolutionary in it's consequences.
I think the amendment is unnecessary & think the right to own a firearm would just be found elsewhere (personally, I think that is a better way to apply that right, as does Prof. Levinson. Since the amendment woudl still leave open other routes to the right to own a firearm, however, even there, it would not be a "revolution" for it to pass.
Do you have no concern at all for legitimacy?
ReplyDeleteForget legitimacy. How about democracy?
"Forget legitimacy. How about democracy?"
ReplyDeleteCome on Bart, you don't want 'democracy,' like in the last election where the party that got 2 million more votes nationally in the House elections wound up the minority party in the House, or where the majority of votes in the Senate have been for the past few years held up by the minority of Senators (and them representing an even smaller minority of the entire population). Please, no 'crocodile tears' over democracy thwarted.
I commend you for turning on comments. The reluctance of your colleagues to allow comment on what they say doesn't say good things about their likely accuracy.
ReplyDeleteI think it says a lot about their thin skins. Apparently it can be difficult to transition from an academic setting, where most of your audience has to worry about what grade you'll give them, to a blogging setting, where most of your audience couldn't care less if you stroke out over what they say about your ideas.
ReplyDeleteI might usually disagree with Sandy, but at least he's not thin-skinned.
OFF TOPIC:
ReplyDeleteI can't resist noting Jack Balkin's post on CJ Roberts as Umpire or Robot. The other day on CSPAn there was a panel of mostly conservatives on the subject of baseball. Justice Alito was a panel member (as were George Will and David Brooks). On the subject of MLB using replays, Justice Alito referenced CJ Roberts' comment on the role of a justice as "umpire." Alito pointed out that MLB umpires on the field are like trial judges. Replay permits an "appeal" to New York that looks at replays to determine whether the umpire's decision was correct or not. Then Alito made a little joke about this being a problem as it involved only two levels, making the not so subtle point that federal courts have three levels what with Courts of Appeal.
As I recall Roberts' confirmation hearing and his reference to "umpire," it seemed clear that he was referring to his role as CJ, if confirmed. It seemed clear to me that Roberts was not talking about trial judges in the role of "umpire." A Justice of the Court is not comparable to an "umpire" as in MLB making instantaneous decisions on the field. Rather the Court after cert. takes months as briefs are filed, presumably reading them, engaging in oral arguments and then the process of the Justices deciding a case. Many bought into Roberts' "umpire" analogy. But perhaps those many were the robots in his confirmation process.
As the current Court session is rounding third and heading home, how many 5-4 "umpire" decisions can we expect from the Roberts Court?
Mr. W:
ReplyDeleteIs there a member of the House or Senate up for election in 2012 who did not earn at least a plurality of their constituents' votes?
The Democrat majority is welcome to repeal the filibuster rule any time they like. It only takes a majority vote.
Both of these are examples of democracy at work.
In sharp contrast, five unelected progressives on the Supreme Court rewriting our Constitution by decree and repealing one of our fundamental rights is what is called tyranny.
With respect to Heller and McDonald, the extensive dicta can be expected to come into more play over the years on the matter of controls. This is where changes in appointments to the Court will come into play. Justice Scalia's dicta surely was aimed at 2nd A absolutists. In my mind Scalia wanted to avoid being painted as CJ. Taney in Dred Scott as his legacy with this limited decision (guns in a home for self defense). And Justice Alito provided similar dicta in McDonald by means of 14th A incorporation for the states. At some point in time, actions by particular states minimizing controls most likely will move the Court to revisit Heller, and in particular McDonald to address impacts on the nation as a whole by the actions of some states. With changes in appointments to the Court the commerce clause will resurface as a means to limit lax gun controls at the state level. Federalism can be carried too far via lax open and concealed carry laws. Keep in mind that both Heller and McDonald are narrow decisions (guns in the home for self defense) with elaborate dicta provided by conservative Justices. 2nd A absolutists will not prevail in the long haul.
ReplyDeleteOur CO gasbag ignores that currently five unelected conservatives on the Roberts Court have engaged in tyranny with its 5-4 decisions. Five unelected progressives on the Court could undo that tyranny.
ReplyDeleteBy the Bybee [expletives deleted], Maureen Dowd's NYTimes column today takes a peek at getting high in the high peaks in CO - or is this just her attitude?
Shag:
ReplyDeleteTo impose a comparable judicial tyranny to what Sandy is suggesting, the so called conservative majority would have to rewrite the Constitution to mandate that all Americans must keep and bear arms, impose a death penalty on all murder cases, and permit state nullification of the laws of Congress.
The importance of changing court personnel to over time providing changing application of the nuances of constitutional law in our system has been a subject for one of our non-comment bloggers here -- Prof. Balkin.
ReplyDeleteThis also provides a democratic check, since "we the people" vote for those who nominate and confirm such judges. Putting such power into political actors underlines how constitutional law in various ways changes over time. As Madison noted, the words only has ultimate meaning when put into action by application.
The Heller details Shag references would be an example here. Likewise, that was one reason people feared Lincoln and Republicans -- there was a broad range of possible Overton Window ways to apply national power in regard to slavery.
Stevens has a certain mind-set given his decades as a judge that might be clouding his judgement here. Others, like Rick Hasen, see changing public views (affected electoral results including who becomes judges) and other ways to work within the system in place already.
This could apply to SL's desire to amend the Constitution to change other things. Also, things like the nature of the Senate wouldn't be the things Stevens would deal with in cases. So, again, Stevens job affects his concerns too.
Our CO gasbag's "comparative" is a feeble attempt to move Sandy's lips. Our CO gasbag too frequently refers to "tyranny" on the part of liberals and progressives, which reminds of my past references to him as "Tyrannysaurus Rex." Here we go again. America is in its twilight years. Bring back the Gilded Age.
ReplyDeleteJoe:
ReplyDeleteWhat democratic accountability?
Progressive presidents get elected by campaigning from the center or center-right. To the extent that they mention judicial nominations at all, they all promise to nominate people who will follow the law as written.
The progressive judicial nominee also promises to follow the law as written.
After they are confirmed to lifetime positions, the progressive jurists forget all those promises and the vast majority of their constitutional rewrites are only minimally covered in the news unless they hit a hot button issue.
By that time, the president who nominated them is often long gone and unaccountable.
The political actors here promote various types of constitutional principles. Each has a general view as was the case in antebellum America. They have different views of what the "law" is. Pushing thru the usual pablum of confirmation hearings, this is seen as well by the nominees.
ReplyDeleteI'm not going to single out one side here. There is accountability here over time. The voters choose who nominates and confirms. They also should know "the law as written" is pablum at this point. There is and always was competing views and who they vote for and who those people put in the courts are far from fungible.
Our CO gasbag's:
ReplyDelete"By that time, the president who nominated them is often long gone and unaccountable."
applies to George W for the current conservative five on the Roberts Court. If George W paints the conservative five (presumably by the numbers) he would still be unaccountable, except perhaps to the art community.
"who did not earn at least a plurality of their constituents' votes?"
ReplyDeleteIn their districts, drawn in such a way as to give the party with less votes nationally the national House overall.
SCOTUS Justices are appointed by a nationally elected President and confirmed by a popularly elected Senate, heck, that almost seems more democratic that the gerrymandered House.
Mr. W:
ReplyDeleteSorry, but 2011 GOP legislatures did not create a single new gerrymander and the GOP would have won the House in 2012 even under the 2010 districting.
http://www.washingtonpost.com/blogs/wonkblog/wp/2013/02/17/redistricting-didnt-win-republicans-the-house/
Once again, Team Obama engineered a heavy turnout in the minority of House districts he won and suppressed the white working class vote by approximately 6 million elsewhere.
http://www.realclearpolitics.com/articles/2013/06/21/the_case_of_the_missing_white_voters_revisited_118893.html
>I commend you for turning on comments. The reluctance of your colleagues to allow comment on what they say doesn't say good things about their likely accuracy.
ReplyDeleteGiven that the thread has devolved into the usual bickering complete with juvenile name-calling, and the author's request that "I would prefer that any discussants have actually read Stevens's book (as well as the linked review" is being completely ignored, I doubt any of his colleagues are going to change their minds re commenting any time soon. If anything I expect SL to.
Brad:
ReplyDeleteYou'll notice that I read his review, and will read the book at the first opportunity, and asked a perfectly reasonable question: Given that the reason Stevens' amendments can't be adopted is that they would all be wildly unpopular, (And Sandy admits that himself, political hemlock he calls them.) doesn't Sandy's advocacy of just achieving them by a 5-4 vote on the Supreme court have legitimacy problems?
I think that's a fair question. We're a democratic republic, looking for work-arounds to accomplish the highly unpopular is not democratic. The federal government is already, according to recent polls, suffering from a legitimacy deficit of staggering proportions.
Is it really wise to advocate anything which could only make that worse?
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ReplyDeleteI don't think it that realistic that everyone will have read a book that just came out really & I personally have listened to JPS talk about it an hour to be honest. And, read SL's op-ed. He did say "prefer" and admitted "unlikely." As to name calling, free speech will have some of that. The thread seems pretty substantive even with that.
ReplyDeleteA couple things. Reading "Second Amendment: A Biography," SL's wish for structural amendments instead of Stevens' makes Prof. Levinson sound like some of the Anti-Federalists not satisfied by the BOR.
As "5-4," the original post said "several" replacements, not just one, which given repeated 5-4 splits would provide a supermajority.
Meanwhile, JPS logically still is aware that various things here would need political support -- enabling legislation. So, only having the votes to uphold some of this stuff isn't enough. It would (putting aside the death penalty provision) require more.
But, though repeatedly overturned by "judicial fiat," often by 5-4 votes, the things were repeatedly passed by popular legislation. As to "hemlock," with respect, that is a bit overboard in some cases. It was not "hemlock" in multiple states to pass gun control laws in recent years, for instance.
If "multiple" conservative justices were replaced in the way Prof. Levinson wishes, anyway, it suggests some degree of political support for what sort of constitutional principles those new judges would generally support anyway. Ultimately, the focus is arguably a change legislatively and perhaps socially (as was the case on let's say same sex marriage to some degree).
This goes back to Prof. Balkin's theory on the public having some power to influence constitutional law. I think big picture is the best approach there myself, not just focusing on replacing Scalia and Kennedy with the "right" person.
When Brown revived the 14th amendment, which had been spiked by, yes, judicial fiat, a few years after it's ratification, there were a number of states and localities that would enact discriminatory legislation democratically. But it would not have been considered an embrace of democracy to dismiss talk of repealing the 14th, and advocate instead changing a few Supreme court justices, and effectuating it's repeal that way.
ReplyDeleteSandy did not suggest that repeal of the 2nd amendment, or abolishing federalism in favor of federal supremacy over ALL matters, would cease being political hemlock. So I took him to be implying the same approach to changing the court that got Sotomayor onto it: Don't SAY you're nominating somebody who will vote to abolish a right, don't ADMIT to having that intent once confirmed, (In fact, deny it if the subject comes up.) just do it.
The undemocratic 'amendment would be achieved by dishonest means.
So, I revive my question: Sandy, don't you have any concerns about the effect your recommendation to achieve Stevens' amendments by just changing the Supreme court would have on the legitimacy of the Court? Or does that strike you as not a concern?
But, if the next Democratic candidate for President would just come out publicly, and state: "If elected, I will make it my aim to render the 2nd amendment a nullity, and transform the states into mere administrative districts mandated to ask "how high" when told by the federal government to jump. And I will nominate judges and justices accordingly."
ReplyDeleteWell, that would add a bit of democracy to the process Sandy proposes, would it not? And more than a bit of that political hemlock, too. So, Sandy, do you think that's what Democratic candidates for President, and for Congress should do? Rather than hiding that intent behind reassuring but empty platitudes intended to convey the opposite intent?
Should a candidate for President announce that they intend their nominees to effectuate Stevens' amendments from the bench, or should they lie about it?
Just a reminder that Brett is a 2nd A absolutist AND self-professed anarcho libertarian in evaluating his views in his comments. Perhaps Brett's views might carry (openly) in Texas where 2nd A wackos believe that firepower on display may "cure" the heartburn of fast foods.
ReplyDeleteThe conservative revival in the 1970s was in part motivated by an argument that the courts were going in the wrong direction. So, "democratically," it would be important to change who was on the courts by having different people choosing who was on them.
ReplyDeleteI still don't know how Stevens etc. are being "dishonest." He forthrightly put forth his constitutional understanding and publicly speaks about it even today. As with the dissenters in Dred Scott, he lost in the court.
So, like there, a constitutional amendment, openly and honestly, is being proposed. Changing political winds would also not be dishonest if done openly. Like Nixon and Reagan did -- that is, openly and honestly as to basic aims.
I think you are exaggerating what the amendments do. And, the public SUPPORTS various things they try to do. 5-4 courts struck down popularly passed legislation. Legislatures passed gun control laws you think violate the 2A. Gerrymandering by definition is concerned with perverting majority will (then the debate is details).
So, yes, the election campaigns can openly talk about such things. Openly talk about campaign finance regulations, including some Citizen United supports etc.
I'm still not going to single out any one side here, including in nomination dances. We can have fun with both sides there, though I'd probably disagree with you are specifics. Muy surprise there.
Bart, the discussion of 'wasted votes' in your first article seems to agree with what I've been saying about this matter all along: that Republicans had a significant advantage in this area in 2012, an advantage that would not have been there if the districts would have been drawn differently ("Jowei Chen and Jonathan Rodden have simulated thousands of redistricting plans in a handful of states and found Democrats generally do worse when districts are constrained to be compact (that is, as close to simple shapes like circles and squares as possible)"
ReplyDeleteWhere I think we talk past each other on this issue is that you define a gerrymander geographically as districts that are drawn outside of simple shapes like circles and squares while my view is that gerrymanders are political, not geometry, they occur not when the shapes are 'strange' but when their effect is to produce results like what we got in 2012: where a party that receives less overall votes retains the legislature overall because of districts drawn in such a way that the party with the most votes overall has lots of 'wasted votes.' You tend to blame the people for clustering, but the entire point of a political system based on the consent of the majority means that it is the duty of the political system to capture the will of the majority, not the duty of the people to distribute themselves according to political lines to ensure this happens.
Shag: Just a reminder, Sandy himself acknowleged that gun control is "political hemlock" outside of a few very liberal areas of the country. It's not like I'm imagining this. Concealed carry reform in practically every state, "Stand your ground" laws all over the place, no state 2nd amendment analogs democratically repealed, gun sales through the roof...
ReplyDeleteWe had that debate the gun controllers always claimed to want, and they lost it.
Mr. W: "Bart, the discussion of 'wasted votes' in your first article seems to agree with what I've been saying about this matter all along: that Republicans had a significant advantage in this area in 2012, an advantage that would not have been there if the districts would have been drawn differently. ("Jowei Chen and Jonathan Rodden have simulated thousands of redistricting plans in a handful of states and found Democrats generally do worse when districts are constrained to be compact (that is, as close to simple shapes like circles and squares as possible)"
ReplyDeleteIf your point is that Democrats need to gerrymander districts (create long and unusually shaped districts snaking out from their urban strong holds into suburban and rural areas) to become nationally competitive in the House, I completely agree. The so called GOP gerrymandering in 2011 generally consisted of eliminating prior Democrat gerrymanders that have been in place in formerly blue midwestern states since the New Deal.
Where I think we talk past each other on this issue is that you define a gerrymander geographically as districts that are drawn outside of simple shapes like circles and squares while my view is that gerrymanders are political, not geometry, they occur not when the shapes are 'strange' but when their effect is to produce results like what we got in 2012: where a party that receives less overall votes retains the legislature overall because of districts drawn in such a way that the party with the most votes overall has lots of 'wasted votes.'
I see 2012 as an isolated electoral anomaly, not a systemic problem justifying intentional gerrymandering or Sandy's preferred change to a parliamentary system.
Historically, the majority party in the House nearly always wins a majority to plurality of the total vote.
1996 was a statistical dead heat where the Dems won a handful more total votes than the GOP majority.
2012 was a completely different electoral creature. Obama is the only president in American history to rather comfortably win reelection based on turning out the vote in a minority of House districts and running a massive negative campaign to reduce turnout in a majority of districts. This presidential campaign strategy carried over into the House races creating a second electoral anomaly of a majority of the overall voters electing a minority of members.
Apportioning the vote proportionally into geographic districts has two virtues - one person, one vote and representation for a geographical area of common interest. Rural, suburban and urban districts all gave different interests which should be represented in the national government.
The purpose of apportionment should not be to make a political party whose supporters self segregate more politically viable. Creating gerrymanders with Democrat urban majorities which drag in suburban and rural voters with often opposing interests effectively disenfranchises those voters.
"Lost" means passing in various states,* a majority of the Senate (sponsored by two NRA members) passing legislation and the House (given the filibuster) not having to determine to let the members (gerrymandered per Mr. W) vote their conscience on the issue that polls suggest has supermajority support.
ReplyDelete* "Very liberal" could include CA, NY, CT, Colorado et. al. true. Passage in NY requires some support from not that liberal districts, e.g. Colorado is a purple state.
BTW, I respectfully think SL is wrong that the proposed amendment would "give legislatures carte blanche to regulate guns in everyday life" since there are various constitutional limits in place other than the 2A route. That might be the aim of the amendment, I guess, but I don't think it will do it.
It should be noted, wrong or not, Stevens' desired reading was the accepted doctrine in federal courts when dealing with modern gun regulation in the 20th Century. It was overruled not by amendment but by changing court personnel. Tellingly, perhaps.
Brett doesn't accept that at the level of the Supreme Court Heller and McDonald have limitations (guns in the home for self defense) plus dicta on the matter of possible controls. And there are polls favoring some gun controls. If enough states get wacko, surely the Court can be expected to act before America becomes the OK Corral for potential shootouts. A reminder that the Court hasn't taken a 2nd A case since McDonald came down in 2010. As to self-defense, the Court would have to consider whether carrying in the Court itself would comport with the 2nd A, as self defense may be appropriate in many places besides the home.
ReplyDeleteShag, I am well aware of the fact that Heller fell far short of upholding the original, "every terrible implement of the soldier" meaning of the 2nd amendment. Instead they gave us, "Everything that wouldn't frighten 5 Justices".
ReplyDeleteThat's still a far cry from what Stevens would have done in his dissent, and would do with this amendment, which is to abolish the right entirely. That's the goal of his amendment, and to attempt, or even openly propose that goal, is political death in most of the country.
Most members of the legislature would lose their seats over voting for Stevens' amendments. Nobody could be elected President proposing them. And it is no less true that no jurist could get confirmed admitting the intent to impose them from the bench.
We're still arguing at the margins, but Stevens' vision of a nation completely deprived of any right to firearms is dead.
Brett's rationale for the limitations of Heller and McDonald:
ReplyDelete"Everything that wouldn't frighten 5 Justices".
presumably means the five conservative Justices. What might frighten them? Could it be an absolutist 2nd A - and how their robes would not protect them from wackos wishing to carry into the Court during orals and other times on the basis of self defense?
Brett's reference to "original" is of course misplaced as originalism is not what Scalia and Alito based their decisions on in Heller and McDonald respectively.
Stevens' efforts at amendment might fail, but changes in Justices may hold to the limitations of Heller and McDonald and revive the Commerce Clause route to gun control.
If people dining do not wish to be exposed to the threats of open carry as part of just desserts, presumably the Justices - all 9 - would not wish to be intimidated by open carry in the Court during oral arguments. Self defense is of concern not just in the home. So this may frighten the conservative 5. And how about open carry in the Senate and House, of course for self defense purposes.
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ReplyDeletea nation completely deprived of any right to firearms is dead
ReplyDelete"A nation" here would imply "privilege or immunity of U.S. citizenship," since his version leaves open state authorized rights or statutory rights.
His version also merely amends the 2A. Sandy Levinson, e.g., doesn't think the "right to firearms" generally would necessarily even rest on that amendment.
Stevens argument is that the language, including 'keep and bear' specifically has a limited purpose. This doesn't close off other means to gun rights. He separately notes he does not think there is a liberty interest here (see McDonald v. Chicago), but his amendment doesn't amend the Due Process Clause. Or, to cite Prof. Levinson, the 9A. And, since "any" means "some," even then, Brett is practicing hyperbole.
What "originally" was understood, anyway, is greatly debated, providing Shag lots of law articles to read. They generally provide a range of "controls" of the "guns," especially when the 2A was largely a federalism mechanism.
Again, Heller and McDonald struck down popularly passed legislation. Upholding such laws seemed like something the public let pass. Congress, e.g., could have overruled local gun laws and made Heller moot. It is my understanding the NRA even tried to get them to do that, fearing the potential of the Heller legislation.
"His version also merely amends the 2A."
ReplyDeleteOh, come off it. He takes an amendment which assigns the right to the People, and amends it to only apply to members of the militia, while so serving. To the people the government has chosen to bear arms for it, while they are bearing arms for it.
A right to be armed when the government wants you to be armed. What's next, a right to speak when the government compels testimony? A right to pay when the government levies a tax?
The right, so amended, would no longer be worthy of the term "right". Rights you can exercise against the preference of the government. If the government decides to bring you to trial, it doesn't get to decide if you get a jury trial, YOU do. That's a right.
A right of the government's soldiers to be armed. What a joke.
"The purpose of apportionment should not be to make a political party whose supporters self segregate more politically viable. Creating gerrymanders with Democrat urban majorities which drag in suburban and rural voters with often opposing interests effectively disenfranchises those voters."
ReplyDeleteThe irony here is noted considering that drawing them in the current fashion disenfranchises all the 'wasted votes' in these urban districts and gives us a national House 'majority' that was chosen by a minority of voters in the nation.
The sole purpose of drawing districts should be to prevent this kind of disenfranchisement and result and to try to ensure that the party that wins the most votes wins the House, otherwise we have one of our fundamental values, that the only legitimate government is the one that governs with the consent of the majority of voters, violated.
Brett
ReplyDeleteIt's tricky because didn't many militias operate by requiring 'the people' to bring privately procured and owned arms to militia drills? If that was the case it's easy to see why they said 'right of the people' and also thought of the amendment as a protection of state militias from federal disbandment.
I bet the Founders gave very little thought to the 2nd as protection for Joe Average in his gun possession, because they probably could not imagine the federal government engaging in gun control that would reach that.
You'd lose that bet.
ReplyDeleteThey were fairly clear about it: The purpose of the amendment was to guarantee the right of Joe Average to be armed in a manner comparable to the army.
By doing so, the amendment assured that a militia could be raised from that armed populace whenever necessary, even if the government had intended that raising one be impossible.
After all, just because you think a well regulated, (Trained and armed) militia is necessary to the security of a free state, doesn't mean you think the people running the state will want that freedom to be secure.
Brett's:
ReplyDelete" ... the right of Joe Average to be armed in a manner comparable to the army. "
and go into a fast food restaurant with powerful killing weapons to make sure diners chew their food 75 times?
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ReplyDelete"could not imagine the federal government engaging in gun control that would reach that"
ReplyDelete"Second Amendment: A Biography" cites a few ways. First, in 1792, they required members of the militia to have certain guns and supplies. Second, they set up a gun registry (which scares some modern day gun rights people as a first step to seizure) to keep track of guns for the militia (a "return").
There was also a range of gun regulations (Scalia points some out too) back to the colonial days. The feds would regulate them in a range of ways -- territories, D.C., etc.
Federal regulations generally were much less back then, of course, though state analogues to the 2A still allowed a range of regulations in antebellum times.
"His version also merely amends the 2A."
ReplyDeleteOh, come off it. He takes an amendment which assigns the right to the People, and amends it to only apply to members of the militia, while so serving. To the people the government has chosen to bear arms for it, while they are bearing arms for it.
The 2A recognizes it as a right of the people ("assigns" to me suggests it wasn't one before).
You haven't actually responded to my argument that merely amending the 2A does not somehow takes away other federal constitutional mechanisms to protect gun rights, including the Due Process Clause or 9A. Stevens' approach can still give the people rights to have guns, since it very well can be argued that the 2A gives a general right to the people at large to be in the militia. Which then had a much bigger role than it does today, especially in the days before organized police services. There still would be "some" right to have a gun, e.g., blacks as well as whites, women as well as men, etc., would have the right to have a gun for militia service. The 2A is there to avoid "the government" setting up select militia. The militia was meant to be a primary means of domestic security. It would not deny "any" rights in this respect.
You repeated denounce abuse of language, but in affect use "none" to mean "way less that I think is correct." That's bad pool, friend.
A right to be armed when the government wants you to be armed.
The 2A militia argument can very well be used to support a right for the people at large, not some select "you," to be part of the militia & the militia to be the primary means -- not a standing army or even the police (at best in its infancy in 1791) -- for domestic security. There is a right to be armed here. It is just tied to militia service. Heller was expressly about someone owning a weapon for personal defense. A separate liberty.
What's next, a right to speak when the government compels testimony? A right to pay when the government levies a tax?
The 2A is tied to the militia, under his view, which like voting and jury service, both fundamental to republican liberty, is regulated by "the people" via government regulation and organization. Blacks, women and gays are three groups who think a right to bear arms when the government finds it necessary pretty important.
The right, so amended, would no longer be worthy of the term "right". Rights you can exercise against the preference of the government. If the government decides to bring you to trial, it doesn't get to decide if you get a jury trial, YOU do. That's a right.
First, again, he thinks the 2A does a limited thing. The right to have guns can be protected in other ways too. Also, voting and jury service is a "right," I think, even if it is partially reliant on governmental action. Finally, the ability of Catholics, e.g., to serve the militia (seen at the time as something that will definitely be used repeatedly) was a right. The government was going to use the militia and the average person was going to have a RIGHT to be armed. Meanwhile, under his view, if the law bans a gun that would only be used for hunting, it would not come under the 2A.
A right of the government's soldiers to be armed. What a joke.
Again, it isn't a "joke," and his amendment still leaves other methods to protect the right to be armed. I don't agree with Stevens approach myself, but when you call someone "deluded" etc., it does help if you actually provide a decent accounting of what his opinions amount to.
His opinion amounted to finding D.C.'s gun laws ok. D.C.'s gun laws, which let you have a grandfathered handgun, if you'd owned it prior to 1975, and if you kept it disassembled in a safe. If you hadn't had one prior to 1975? You were out of luck.
ReplyDeleteThe harshest gun law in the entire country, the ultimate outlier, and he couldn't bring himself to admit it violated this "right".
Yes, a joke. And not a funny one either.
You talk past me very well. Cheers.
ReplyDeleteI'm not talking past you, I'm refusing to buy into your sophistry.
ReplyDeleteDid Stevens have no intention that people be disarmed, he would have no need to rationalize that the 2nd amendment would not stand in the way of doing so. You don't take a safeguard away, unless it is your intent to render something unsafe.
And the initial point remains: Stevens' amendments have no future, not because something is wrong with the amendment process, but because they are all, every one of them, contrary to widespread public opinion. And Sandy's response to recognizing this is to propose that undemocratic means be used to attain the end, instead.
The government has, according to multiple polls, lost much of it's legitimacy. A serious proportion of the people see it as a threat to the people's liberty. Does Sandy have no concern about making this situation worse?
Because that would be the outcome if his advise were followed. The outcome would literally, as in civil unrest, revolutionary in it's consequences.
Will Brett be leading this threat?
ReplyDelete"The government has, according to multiple polls, lost much of it's legitimacy. A serious proportion of the people see it as a threat to the people's liberty. Does Sandy have no concern about making this situation worse?
"Because that would be the outcome if his advise were followed. The outcome would literally, as in civil unrest, revolutionary in it's consequences."
Sandy's has expressed his 1st A speech rights and Brett is suggesting trumping them with absolutist 2nd A rights.
Perhaps George W will favor us with a painting of the two Texas wackos carrying in Texas fast food outsets and add to it Brett's likeness as he apparently walks in lockstep with them, a comic trio to compete with the Three Stooges: "We gotta blast!"
DSpeaking of open carry in Texas, last night's The Daily Show features several segments on open carry. The segment "2nd Amendment Manners Do's and Don'ts" is particularly hilarious as it suggests to me Brett's underlying view of the 2nd A.
ReplyDeleteStewart's take on the conflict between open carry and stand your ground was also very good.
ReplyDeleteI'm not talking past you, I'm refusing to buy into your sophistry.
ReplyDeleteA better way, YMMV, would be to directly answer what I say, showing how it is "sophistry."
For instance, the opinion doesn't actually say the law in question is "okay," full stop. The question presented was if there was a right -- via the 2A -- to own a handgun for personal defense while not in service of the organized militia. It was not if the militia -- instead of organized police forces -- should be used. Modern day police forces might, e.g.., might seem like a standing army to colonists. It wasn't if people lack any right to own a weapon, including by other provisions of the Constitution. etc.
Did Stevens have no intention that people be disarmed, he would have no need to rationalize that the 2nd amendment would not stand in the way of doing so. You don't take a safeguard away, unless it is your intent to render something unsafe.
Given the state of gun ownership in this country, including as protected by state constitutions, if his intent was "that people be disarmed," he very well might be deluded. He was addressing a specific question regarding the 2A. As Breyer showed, the law in question probably didn't even totally "disarm" people in D.C.!
And the initial point remains: Stevens' amendments have no future, not because something is wrong with the amendment process, but because they are all, every one of them, contrary to widespread public opinion. And Sandy's response to recognizing this is to propose that undemocratic means be used to attain the end, instead.
"Widespread public opinion" supports a range of things they do. In some form, and they can merely serve as a launching pad as the myriad of amendments "that had no future" raised that was winnowed down to the current ten (eleven) Bill of Rights, they address many concerns. Again, they in part address 5-4 rulings that struck down popularly passed legislation, both by Congress and local legislatures. That is enough to make them not "deluded."
The government has, according to multiple polls, lost much of it's legitimacy. A serious proportion of the people see it as a threat to the people's liberty. Does Sandy have no concern about making this situation worse?
Various concerns affect this sort of thing. Lots of people are concerned, e.g., about money in politics. Not sure how addressing gerrymandering as such "will make this situation worse," especially if done by using the political process to vote those who would select certain judges who would address that. Levinson seems to be accepting of doing this openly, which you think is a lost cause, but that goes to the merits of the question.
Because that would be the outcome if his advise were followed. The outcome would literally, as in civil unrest, revolutionary in it's consequences.
The public has shown support of campaign finance limits, reform of gerrymandering, allowing universities to be sued to defend patents, etc.
Shag:
ReplyDeleteWhat happened at Cliven Bundy's ranch would be duplicated across the nation if the Capital actually imposed the firearm prohibition regime Justice Stevens prefers.
Americans are a remarkably patient people. We do not go to the streets at the drop of a hat like the French. However, if the government pushes far enough, Americans can and do push back.
What happened at Cliven Bundy's ranch would be duplicated across the nation
ReplyDelete# posted by Blogger Bart DePalma : 9:41 AM
Are you talking about Bundy's ignorant racism or his refusal to pay for using land that he doesn't own?
Our CO gasbag's:
ReplyDelete"What happened at Cliven Bundy's ranch would be duplicated across the nation if the Capital actually imposed the firearm prohibition regime Justice Stevens prefers."
ignores the bottom line on Cliven Bundy's event even by conservatives causing Bundy to abandon the GOP.
Is our CO gasbag prepared to push back for Bundy after he was dropped by initially conservative supporters?
I took criminal law in the Fall of 1951. Consider the crimes of assault and battery. There could be an assault without a battery and perhaps a battery without an assault. These were common law crimes - and common law torts - that to a certain extent have been superseded by statutory law very close to the common law.
ReplyDeleteSo what about open carry as a potential assault? Does lawful open carry override laws against assault? Might a Texas wacko openly carrying an AK-47 into a 7-11 late at night be construed as an assault by a clerk-employee who has been the victim of robberies? How does the 2nd A impact upon the laws of assault and stand your ground laws? As noted by "CO gasbagBuster," a The Daily Show segment addressed this. But the results may not be funny. Fear of bodily harm is of course in many instances subjective.
Shag's question brings to mind the mixed views over the years on open and concealed carry. Concealed carry was the subject of various 19th Century rulings, which were decided in different ways. Also:
ReplyDeleteANTONIN SCALIA: Oh, yes. And read the opinion in Heller.
It didn’t purport to say everybody can carry whatever weapons he wants. In fact, it mentioned that there was a misdemeanor in ancient times called affrighting. Affrighting consisted of carrying a frightening weapon, a head axe or something like that, to scare people.
So, it’s clear that certain restrictions on the bearing of arms are traditional and can be enforced. What they are, it will have to be decided in future cases.
http://joshblackman.com/blog/2012/08/10/scalia-elaborates-on-heller-and-rocket-launchers-it-will-have-to-be-decided-in-future-cases/
That seems to imply a certain intent ("to" scare), but perhaps not. For instance:
"There is a common-law misdemeanor in North Carolina that is similar to "affrighting." It is called "going armed with unusual and dangerous weapons to the terror of the people."
http://sentencing.typepad.com/sentencing_law_and_policy/2012/07/notable-comments-from-justice-scalia-on-the-second-and-eighth-amendments.html
"So what about open carry as a potential assault?"
ReplyDeleteMakes about as much sense as speach as potential libel.
Shag:
ReplyDeleteConservatives were very much on board with Bundy's latest incarnation of the sagebrush rebellion which has been simmering out here in the west since the 1970s. They bailed concerning Bundy's comments on slavery.
Changing the subject does not change the fact that there would be a popular and very likely armed revolt against any government attempt to impose firearm prohibition.
Brett may not be aware of this as a non-lawyer but libel is a tort that may permit for recovery of damages. Generally, libel is not a crime. But an assault can be both a crime and a tort. And the potential assault I posited at a 7-11 could lead to an injury or death, unlike potential libel - unless it is the overly sensitive AK-47 carrier who feels that the 7-11 clerk-employee has libeled him/her.
ReplyDeleteAs to our CO gasbag's claim of changing the subject, he brought up the subject of Bundy, not I. Perhaps our CO gasbag would serve as a leader of his posited " ... a popular and very likely armed revolt against any government attempt to impose firearm prohibition." But who's imposing firearm prohibition? That wasn't the issue with Bundy. No, it's reasonable regulation that's needed - and paying for the use of property that was not Bundy's. (Query: Has anyone checked videos of Bundy's "posse" to see if our CO gasbag was there?)
Shag, the point is, that while carrying a gun can certainly contribute to assault, carrying a gun, by itself, is NOT assault, any more than simply speaking is libel, even though speech CAN be libelous.
ReplyDeleteYou're not going to cancel out the right to keep and bear arms based on the fact that people are capable of doing wrong with guns, any more than the fact that people can commit libel permits abolishing the right to freedom of speech.
Stand your ground laws don't appear to require an actual assault. If a heavily armed black kid walks into a Jacksonville McDonald's, I'm pretty sure you can legally shoot them on the grounds that you felt threatened.
ReplyDeleteBrett's:
ReplyDelete" ... while carrying a gun can certainly contribute to assault, carrying a gun, by itself, is NOT assault, .."
omits context, such as the type and quantity of guns being openly carried, whether they are loaded, where being carried, when being carried, why being carried there, etc.
Keep in mind that so far the Court in Heller and McDonald have limited the 2nd A to the home for self defense with extensive dicta on areas of regulation. The Court has not revisited the 2nd A since 2010.
What if a patron in a crowded (or uncrowded for that matter) theatre objects to such a carrier because of fear of an accident or worse a purposed event? The patron may fear bodily harm personally or to his/her children in the theatre. One doesn't get the benefit of the 1st A speech clause by falsely yelling fire in a crowded theatre. Can an open carry in a crowded theatre be considered as intimidating patrons who have no idea it might be a good or bad guy openly carrying two AK-47s? Context.
"Carrying a gun by itself" apparently traditionally in certain cases was actionable either as a tort or as a possible crime against the peace.
ReplyDeleteA battleaxe might be a nice "terrible" weapon of the solider in certain cases, but carelessly bearing it on the public highway might be a problem.
Or, perhaps at the local coffeehouse.
The Alien and Sedition acts made political dissent a crime for a while, too, and there's been a considerable effort for the last couple of decades to reduce freedom of political speech.
ReplyDeleteThat laws have been adopted abridging a right doesn't mean the amendment protecting it wasn't really meant to do so. You don't bother explicitly protecting rights you don't expect will face attack. The Bill of Rights exists to prohibit things the government was fully expected to attempt to occasionally do.
I don't know what that last vanilla comment really adds.
ReplyDeleteWhatever the illegitimacy of the Alien and Sedition Acts, free speech leaves open regulations that in some fashion limits speech. Liberty doesn't mean free license.
Scalia pointed out the same applies to the right to keep and bear arms. It isn't absolute. Even soldiers have rules to follow here. He cited one involving something that touches upon Shag's musings.
Context and specific facts will determine if the regulation is illegitimate (A&S) or legitimate (a range of speech regulations).
I'd add that if the suggestion is that history alone shouldn't be our touchstone, all for it.
ReplyDeleteBut, the right at issue didn't come from nowhere. See, e.g., the 1688 English Bill of Rights recognizing certain traditional liberties such as gun rights. The militia has ancient roots.
In that respect, traditional acceptable regulations, if they still survive given the developments in place since they existed, are relevant.
Yeah, ancient acceptable regulations, which don't include, for instance, prohibiting you from owning a handgun unless you already owned it in 1975, and keep it disassembled in a safe. This would be why, for instance, concealed carry is not a right, even though carrying a gun is.
ReplyDeleteAnd so, in line with the original militia act, it is no violation of the 2nd amendment to require you to demonstrate to the government's satisfaction that you own a gun. But this is not the same as the government requiring you to inform it of every gun you have. One serves to further a well regulated militia, the other to prepare for abolishing it.
There are a lot of perfectly reasonable regulations of firearms, which would not violate the 2nd amendment. (Nor enumerated powers, if implemented at the STATE level...) You don't see much action in enacting such, for much the same reason that segregated drinking fountains didn't tend to be the same for blacks and whites:
The people obsessed with regulating guns WANT to infringe the right.
Brett's:
ReplyDelete"There are a lot of perfectly reasonable regulations of firearms, which would not violate the 2nd amendment. (Nor enumerated powers, if implemented at the STATE level...) You don't see much action in enacting such, for much the same reason that segregated drinking fountains didn't tend to be the same for blacks and whites:"
would seem to confirm my earlier comment/observation:
"Speaking of open carry in Texas, last night's The Daily Show features several segments on open carry. The segment '2nd Amendment Manners Do's and Don'ts' is particularly hilarious as it suggests to me Brett's underlying view of the 2nd A."
Yeah, ancient acceptable regulations
ReplyDeleteSuch as the sort Scalia cited, which in some fashion seems to address what Shag was pointing out.
which don't include, for instance, prohibiting you from owning a handgun unless you already owned it in 1975, and keep it disassembled in a safe. This would be why, for instance, concealed carry is not a right, even though carrying a gun is
Various sources do cite 19th Century laws, not seen as tyranny from what I can tell, that disallowed guns in certain places, such as certain frontier towns, even though the Constitution or some state analogue to the 2A (though they are written in different ways, so are only imperfectly so, Stevens amendment would thus in part be a state rights amendment) protected the people who lived there. But, I have repeatedly noted that I agree with the result of Heller, at any rate. As noted above, the dissent still leaves open gun rights, including by means other than the 2A, means that weren't the question presented in that case.
And so, in line with the original militia act, it is no violation of the 2nd amendment to require you to demonstrate to the government's satisfaction that you own a gun.
I don't think it did either, but per Mr. W., it was a means to directly regulating personal gun ownership, which was the point of my comment personally. Some gun owners today would not be a big fan of the government telling them not only if "you own a gun," but a certain type of gun and related supplies. And, have the government keep track of that sort of thing, which some fear is the first step to seizure. Some might cite a right not to own one. To clarify what was done.
But this is not the same as the government requiring you to inform it of every gun you have. One serves to further a well regulated militia, the other to prepare for abolishing it.
I'm unsure why a complete census of guns owned would not be useful for the furtherance of the militia to provide a complete picture in that regard. Also, since everyone (e.g., felons perhaps) does not have the right to own a gun, it can also protect (like voting regulations might) unlawful ownership. It can be a means to make sure the guns are legal or that the guns are not illegitimate -- every single weapon, like every single species of speech -- not being protected. etc. It would thus "serve" various legitimate purposes. Anyway, I didn't mean to say it was all the same thing. I just noted it as an example, contra Mr. W.'s possible assumption, of how even in 1792, the feds regulated personal ownership.
There are a lot of perfectly reasonable regulations of firearms, which would not violate the 2nd amendment.
Right. Lots of "controls" of "guns." Unless "gun control" is a scare word like "judicial activism" that has a special negative meaning.
(Nor enumerated powers, if implemented at the STATE level...)
State regulations, of course, would have to not violate the 14A and other provisions when relevent.
You don't see much action in enacting such, for much the same reason that segregated drinking fountains didn't tend to be the same for blacks and whites:
The people obsessed with regulating guns WANT to infringe the right.
There have been loads of gun regulations over the years just like speech and other rights are regulated. Quite legitimately as you readily admit. Sometimes not. Context/details. OTOH, segregated drinking fountains? Not sure when that is okay.
Too late I'm sure, I'm done here.
Check out this link:
ReplyDeletehttp://www.cnn.com/2014/06/06/justice/georgia-courthouse-shooting/
headlined "Authorities: Georgia courthouse attacker prepared to inflict mayhem." GA okayed open carry in bars, churches and schools (with some limitations). But 2nd A absolutists want to openly carry wherever. Presumably Justices Scalia and Alito (as well as other Justices) may get a little antsy about this, perhaps wondering if the Court can rein in states like GA liberalizing open carry.
Actually, I would say it's not so much that we want open carry everywhere, as that we want anybody who bars carrying to be strictly liable for any injuries sustained as a result of preventing people from being able to defend themselves. Tell people they can't defend themselves on your property? You'd better be prepared to offer that defense in their place.
ReplyDeleteFurther, if the government is going to bar carry within a building, it must provide facilities to check your gun at the door. Otherwise it's really barring carry outside the facility, too, by forcing you to leave your gun at home if your errands include a visit to that facility.
But, within those parameters, if the government doesn't want people packing heat in a courthouse, I'm fine with it. Just provide me with a locker at the door, and assume the duty of defending me while I'm inside.
One can defend oneself without lethal weaponry. Fists, wrestling, pepper spray. In Heller and McDonald "arms" in the decisions were limited to certain kinds of guns. But "arms" can be quite broad, and may include a Swiss Army Knife. The mentality of 2nd A absolutists is to be able to kill - or seriously maim = with guns in self defense when even lesser means could provide self defense. As to Brett's separate drinking fountains, that is the not so subtle rationale (code) for the needs, desires, of 2nd A absolutists - separate but unequal firepower.
ReplyDeleteShag from Brookline said..." One can defend oneself without lethal weaponry. Fists, wrestling, pepper spray."
ReplyDeleteNot likely.
Most folks never learned to or are physically unable to fight - especially with the young male(s) that will almost always be your assailant(s).
A word of advice: Don't bring pepper spray to a gunfight or a knife fight.
When my future 5'4" wife worked nights at a hospital and was being stalked, she both trained with and packed a pistol which she could physically handle, easily retrieve, and would do the job in case the predator confronted her. Neither one of us thought fumbling around for pepper spray was a bright idea.
And how many times have our CO gasbag and his petitie wife-to-be and later wife actually have had to use their respective glocks in self defense - or in defense of third persons - other than in a military situation? Perhaps they each had the confidence factor that they were packing, that they could kill or maim seriously someone else. I don't doubt that our CO gasbag feels superior with his glock in his jock.
ReplyDeleteHow often have you used the fire extinguisher in your house? The demand that people not be prepared should things go wrong, simply because you figure they're probably not going to go wrong, is the sort of obnoxious assumption of authority over others' lives, and indifference to their interests, I've come to expect from "liberals".
ReplyDeleteApparently there is a lot of fear in Gunnutistan...
ReplyDeleteHas Brett built up his arsenal of arms in fear of liberals, especially those who do not carry? Is self defense against the words of liberals Brett's rationale for being a 2nd A absolutist and a self proclaimed anarcho libertarian? Or is Brett's rationale (code) to address the changing demographics? What is it that scares Brett, that might make him use his arsenal?
ReplyDeleteAs to fire extinguishers, they are not designed to maim or kill; just the opposite, unlike guns.
Maybe self esteem is involved with Brett, who may feel like a wimp if he isn't carrying a glock in his jock.
Shag:
ReplyDeleteMy father used his .45 twice - once to stop a carjacking and another to stop a home invasion.
I have that .45, but thankfully have not had to use it because my wife and I lived in better neighborhoods.
You are free to rely on the kindness of predators. I prefer not to.
You live your life as you please. You and Justice Stevens can stay the hell out of mine.
Our CO gasbag with this:
ReplyDelete" ... because my wife and I lived in better neighborhoods."
matches Brett in code words. Perhaps there are better potheads in those neighborhoods who carry openly and otherwise. One might ask why the need for carrying in better neighborhoods? Accidents do happen from time to time with guns in the home and outside the home. By the way, pepper spray recently worked, didn't it? It took a good guy with pepper spray to stop a bad guy with a gun. I suppose our CO gasbag's rejoinder may be that the bad guy with a gun had a shotgun, the wrong kind of gun, that the pepper spray would not have worked if the bad guy had an AK-47.
Perhaps as with Brett our CO gasbag may have a self-esteem problem for which he needs to show his masculinity with a glock in his jock.
"Code words" are a liberal's way of attributing evil to others even though what they actually say doesn't support it. You just assign certain words needed to express ideas you dislike obnoxious meanings, and then take offense at the meanings only you see.
ReplyDeleteBrett's words:
ReplyDelete" ... for much the same reason that segregated drinking fountains didn't tend to be the same for blacks and whites: ... "
were offered for what purpose? Surely Brett as a 2nd A absolutist AND as a self-proclaimed anarcho libertarian offered these words in support of his rationale. Brett is slightly more subtle than Cliven Bundy. Whom does Brett fear that he needs an arsenal of arms? Is his fear rational or merely rationale (code) in light of the changing demographics?
"were offered for what purpose?"
ReplyDeleteTo the purpose of pointing out that, eventually, you have to stop assuming good faith. The presumption of good faith is rebutable.
Just as "separate but equal" was never actually equal, because only people who didn't want equal insisted on separate, "reasonable regulation of firearms" in practice is never reasonable, because the only people pursuing it are the folks who want to infringe the right to keep and bear arms.
Eventually the courts came around to recognizing the truth about "separate but equal". It may take a while for "reasonable gun regulations", but I'm optimistic, given just how many incredibly unreasonable examples the gun grabbers keep throwing their way.
Is Brett suggesting that there should be equality of firepower for all? Perhaps this should be financed by the federal and state governments. Keep in mind that Brett's concept of "reasonable" gun controls would be governments providing lockers in certain places where guns should not be carried with the proviso that the government provide for the protection of carriers in facilities where their guns are checked and provide for damages for failure to do so.
ReplyDeleteMy library system does have this book and will check it out eventually after a few other things, including a book on slavery by Paul Finkelman.
ReplyDeleteProf. Finkelman has written on the matter that is dominating this thread as a sort of case study for Prof. Levinson's point.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105369
No comment. Back to your previous scheduled Brett/Bart/Shag show. I foresee usage of puppets.
Joe, as usual, thanks for the link. The article was published in 2000. Unfortunately the SSRN download does not include the foot - or end - notes. It is a quick read of 31 double space pages.
ReplyDeleteIn Part IX on pages 142 - 146, Finkelman takes Sandy to task on certain of Sandy's views on the 2nd A 9perhaps implicitly suggesting that Sandy was engaging in "law office history"?). Do you know if Sandy responded? (Or maybe Sandy can tell us.)
I also noted that at the bottom of page 145 and continuing on page 146, Finkelman pointed to Michael Bellesiles' claims that were subsequently disputed. But Finkelman does not make Bellesiles' views foundational to Finkelman's historical analyses. Finkelman is a historian of note by the way.
A version of that article with footnotes:
ReplyDeletehttp://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3291&context=cklawreview
PF gave a talk on this very subject last year, I saw an announcement looking for the article, so others might find a more up to date article.
I am familiar with him most as an influential historian on slave issues.
The article was in group of articles on the 2A. I think this nine page article by Levinson might be fairly germane to the OP.
ReplyDeletehttp://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2590&context=tlr
In passing, he notes somewhat bemused Finkelman appears to have disagreed with SL's early article.
Not a terribly impressive essay, merely demonstrating that, if you interpret "the people" as meaning "the militia", and ignore all contemporary statements contrary to your thesis, (Which is to say, all relevant contemporary statements.) you can 'prove' that the 2nd amendment doesn't guarantee an individual right.
ReplyDeleteIt's not an accident the essay was rather short on quotes from contemporary sources.
Brett's:
ReplyDelete"It's not an accident the essay was rather short on quotes from contemporary sources."
suggests he did not read, or understand, Finkelman's article and rather extensive quotes.
Or is Brett referring to Sandy's article which I've downloaded to read shortly?
"suggests he did not read, or understand, Finkelman's article and rather extensive quotes."
ReplyDeleteFine, then, cite those extensive quotes regarding the 2nd amendment you consider pertinent. Because I managed to miss them. I saw lots of assertions concerning what was meant by the 2nd amendment, precious few quotes.
For instance, "This was done by controlling the militias and the army, and retaining the right to limit weapons to those who formed "a well regulated militia.""; Not a quote from Madison or one of the founders, but simply Finkelman's own opinion of the matter.
Screw Finkelman's personal opinion, he shows little evidence that his opinion is valid. Not like us "2nd amendment absolutists", who can directly quote people like Tenche Coxe, and demonstrate that Madison approved of what he said. Finkelman? He just asserts.
And he doesn't help his case by quoting Bellesiles, who was known to be a fraud within months of publishing that book.
Oh, and "The article was in group of articles on the 2A."
ReplyDeleteThe article by Finkelman was in a special issue of a law review, purchased with Joyce Foundation money. Special in the sense that it had an assigned anti-gun editor, and no dissenting viewpoints were to be represented, only anti-gunners.
This was just one of several different law reviews they bought special issues of, with the same arrangement: Specially selected editor, and no dissenting opinions permitted.
Not much better than vanity publishing, IMO.
Apparently Brett overlooked the number of times federalists used the words "anarchy," "insurrection," provided in quotes. Finkelman provided extensive quotes of the anti-federalist, who were basically against the 1787 Constitution. [The Federalist Society is more in line with the anti-federalists back then. The federalists back then were for a strong central government.]
ReplyDeleteBrett's earlier:
"Not a terribly impressive essay, merely demonstrating that, if you interpret "the people" as meaning "the militia", and ignore all contemporary statements contrary to your thesis, (Which is to say, all relevant contemporary statements.) you can 'prove' that the 2nd amendment doesn't guarantee an individual right."
seems to have been based on just one of Finkelman's several challenges of Sandy's then views. Finkelman provided more elaborate challenges of Sandy's views in Part IX of his article.
As to Brett's comment on Bellesiles, I anticipated that in an earlier comment by pointing out that Bellesiles was not fundamental to Finkelman's extensive analyses of history.
Did Heller and McDonald provide stronger historical analyses? Surely not, especially as those decisions were limited to guns in the home for self defense, with extensive dicta on possible limitations. The Court has not taken a 2nd A case since McDonald in 2010. The Court has not established an absolutist 2nd A. Perhaps the Justices in the majority understood a tad about anarchy and insurrection. As noted frequently, Brett is a 2nd A absolutist AND a self-professed anarcho libertarian, perhaps like some of the anti-federalists back in the late 1780s. Imagine what America would look like today here at home, in the world, if the anti-federalists stopped the ratification of the 1787 Constitution, reverting to the Articles of Confederation.
ReplyDeleteThis brings me to Sandy's very interesting 2007 short essay that Joe provided a link to. (Thanks, Joe.) Sandy's second paragraph references to Finkelman was most gentlemanly for which I commend Sandy. (I am in substantial agreement with most of Sandy's views, with the exception of his call for a constitutional convention that I thought would be futile. Based on Sandy's review of Justice Stevens' book, perhaps Sandy may now agree on futility.)
Sandy's 2007 essay looks at how constitutions considered by countries might address weapons, focusing upon Iraq and the Bush/Cheney recommendation that Iraq's proposed constitution not include a provision styled after our Constitution's 2nd A. Sandy points, inter alia, to the Kurds and their situation over many centuries.. (I became aware from H.G. Wells' "Outline of History" back when I was in my early teens of "Kurdistan" way back when in the history of the Middle East, including maps.) The history of the Kurds is most interesting and Sandy makes a valid point on the concept of disarming of the Kurds today.)
Sandy's essay appears to have been published before the effects of the Bush/Cheney Great Recession of 2007-8 were fully known. But back then Sandy was concerned with the dysfunction - pre-Obama - in America with its undemocratic Constitution. Sandy has since gone further with his views on political dysfunction. A recent BU Law School program on political dysfunction failed to come to consensus that there was political dysfunction attributable to the Constitution and of course no consensus on how to cure political dysfunction.
In reading Sandy's 2007 essay, I thought about perhaps a hidden point that perhaps Sandy had concern with the possibility of political dysfunction in America being addressed by weaponry. What if anarchy, insurrections, flow from political dysfunction? Would an absolutist 2nd A come into play? I'm not saying that that was in Sandy's mind, but it has bee 7 years since that essay and political dysfunction seems to have worsened. Changing demographics and the failure of Congress to address immigration add to the current political dysfunction. So Sandy's cautions, warnings, about new constitutions on addressing weaponry (Iraq) may serve as cautions, warnings here in America with political dysfunction.
So back to Brett and his arsenal of weaponry to provide him with self-defense not just in his home but everywhere. Whom does he fear? Is it government? Is it the words of liberals? Is it the changing demographics and its potential impact on Whites who have historically (now hysterically?) served as the base of America? Is it immigration issues? How does self-defense come into play with his arsenal? Might it tend towards anarchy, insurrections? Exactly who are the enemies threatening Brett for which he needs his arsenal for self defense?
ReplyDeleteHere's an earlier comment directed to Brett:
"Is Brett suggesting that there should be equality of firepower for all? Perhaps this should be financed by the federal and state governments. Keep in mind that Brett's concept of "reasonable" gun controls would be governments providing lockers in certain places where guns should not be carried with the proviso that the government provide for the protection of carriers in facilities where their guns are checked and provide for damages for failure to do so."
but he did not take the bait.
I have read multiple books, from different p.o.v.s on this subject over the years (e.g., read Stephen Halbrook, Don Kates [collection], Mark Tushnet, Michael Waldman, Akhil Amar et. al.).
ReplyDeleteEach time, current scholarship was used or cited in some fashion. With various results. I'm starting to appreciate Jainism ("multiplicity of views necessary, no one way to truth").
Then again they are sort of "anti-gunners," so maybe Brett is wary of my sentiments for a reason.
I notice, Shag, that you didn't bother to cite any quotes. Shall I take that as a concession on your part that they weren't there to cite?
ReplyDeletePerhaps Brett isn't aware of character limits on comments of just over 4,000. Many comments would be required for the quotes in Finkelman's article by both federalists and anti-federaists on the 1787 constitutional convention and in the course of the ratification process, as well as the limited info available from congressional records on the Bill of Right approved by Congress that were subsequently ratified by the states, ignoring the bulk of the anti-federalists objections to the 1787 Constitution and their wish lists of rights..
ReplyDeleteIt's obvious Brett has not read Finkelman's article with care. Perhaps Brett has available the views of other contemporaries back in the late 1780s supporting historical analyses differing from Finkelman's.
And Joe makes a significant point with his comments. Very few agree with the "history" provided in both Heller and McDonald by either the majority or the minority. So where is Brett getting his "history" supporting an absolutist 2nd A?
Shag, there are not 4000 characters of quotes relevant to the issue at hand in that essay. There are not 400. The one I did find amounted to maybe 200, but was so cut up I have little confidence what the original, in context, said.
ReplyDeleteCertainly nothing remotely as on point as this.
The reason very few agree with the "history" in Heller or McDonald, is that neither majority nor minority were aiming to uphold an historical reading of the amendment. They merely differed in how much violence they meant to do to it. The minority wanted the amendment utterly abolished, the majority were content to keep it around somewhat neutered.
ReplyDeleteThe evidence from the founding era is nothing if not one-sided, which is why anti-gunner have to go to such lengths to avoid taking notice of it, and why Bellesiles had to commit fraud to support his views.
You can argue that the amendment should not be upheld according to original intent, (Though I view this as a rejection of the rule of law.) but that intent is quite clear.
Brett provides a link to quotes put together at GunCite that lacks significant narrative and lacks context. This is not historical analyses such as is done by Finkelman in his article. In fact Finkelman's article includes quotes, summaries of the positions taken by several of those quoted in Brett's link.
ReplyDeleteFinkelman extensively addresses contemporaries, including extensive quotes and summaries supported with footnotes of sources. (I downloaded and reviewed Finkelman's article with the footnotes that Joe provided a link to; thanks again, Joe.) The ratification process in the various states involved contemporaries, including anti-federalists who in the process in several states, MA, PA, NH,, NY, and VA proposed various areas of amendments of the 1787 Constitution, including what were described as Bills of Rights, Declaration of Rights. Finkelman provides analyses, quotes, summaries, to point out that the anti-federalists could get very little from Congress which came up with a limited Bill of Rights. Finkelman's analyses demonstrates that the goal of the anti-federalists to weaken the central government failed. Finkelman's analyses of PA 's broad gun rights is quite strong regarding the 2nd A as adopted by Congress as part of the Bill of Rights. The central government under the Constitution was not limited with respect to federalizing a state militia. So Finkelman did present much of the contemporaries' views on the 2nd A. VA's two senators voted against the Bill of Rights that came out of Congress and VA's Patrick Henry thought he could control the VA legislature not to ratify the Bill of Rights. But this failed.
Brett obviously is not interested in historical analyses, relying on a list of quotes that do not address what was involved with the verification of the 1787 Constitution and the circumstances of how Congress, via Madison, came up with its Bill of Rights, thwarting the efforts of many anti-federalists who wanted to weaken the central government.
Finkelman's essay includes quotes, virtually all of which are not on point regarding the 2nd amendment, and a lot of assertions concerning the 2nd amendment which lack any support.
ReplyDeleteGuncite has a lot of quotes which are directly on point, and which you have to reject, because they demonstrate that your position is wrong.
Sandy once said that, "I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."
Well, he was right, they won, you lost. Eventually you'll get over your case of denial about it, or maybe just pass on.
As usual Brett ducks the limitations of Heller and McDonald in contrast to Brett's absolutist 2nd A position. And Sandy's comment is not a historical analysis of the 2nd A, rather, it is a present day viewpoint as references the elite bar of today, not back in the late 1780s. So what is Brett's victory? Heller and McDonald relate to guns in the home for self-defense, with extensive dicta on limitations that might be imposed. The Court hasn't taken a 2nd A case since since 2010. Brett should present a historical analysis supporting his absolutist position on the 2nd A, not a series of quotes with no context and no meaningful narrative. And keep in mind that both Heller and McDonald were 5-4 decisions. With recent events concerning courthouse shootings and a planned courthouse shooting, can these be ignored by the majority?
ReplyDeleteOnce again:
*****
Here's an earlier comment directed to Brett:
"Is Brett suggesting that there should be equality of firepower for all? Perhaps this should be financed by the federal and state governments. Keep in mind that Brett's concept of "reasonable" gun controls would be governments providing lockers in certain places where guns should not be carried with the proviso that the government provide for the protection of carriers in facilities where their guns are checked and provide for damages for failure to do so."
but he did not take the bait.
*****
Still not biting?
Brett's:
ReplyDelete" ... and a lot of assertions concerning the 2nd amendment which lack any support."
ignores the analysis by Finkelman in Part III Antifederalist Hopes, the Case of the Pennsylvania Minority (pages 206-212), on the proposals quoted at pages 208-9. The 2nd A included in the Bill of Rights approved by Congress in effect rejected the extensive PA dissent on arms. Follow the logic, Brett, of this analysis. Also rejected were proposals on arms from other states.
Here's another that Brett declines to take the bait:
ReplyDelete****
So back to Brett and his arsenal of weaponry to provide him with self-defense not just in his home but everywhere. Whom does he fear? Is it government? Is it the words of liberals? Is it the changing demographics and its potential impact on Whites who have historically (now hysterically?) served as the base of America? Is it immigration issues? How does self-defense come into play with his arsenal? Might it tend towards anarchy, insurrections? Exactly who are the enemies threatening Brett for which he needs his arsenal for self defense?
****
By the Bybee [expletives deleted], the "Insurrections" feared back in the late 1780s were not just Shay's Rebellion but more so with potential slave insurrections, as well as of Native Americans.
Finkelman's argument amounts to this:
ReplyDelete1. The anti-federalists didn't get most of what they wanted. (Granted!)
2. They wanted a private RKBA. (Granted!)
Therefore,
3. They didn't get a private RKBA.
Does not follow!
As he notes, Madison was willing to give the anti-federalists some things, such as the 1st amendment. The federalists were willing to agree to amendments barring things they had no intention of doing. And only balked on the matters that seriously messed with their desire for a stronger central government, or barred things they DID want to do.
Where does Finkelman demonstrate that the power to disarm private citizens without cause falls into that latter category? Nowhere. The best he's got is that language barring disarming people save for 'actual rebellion' didn't get incorporated into the final amendment.
But, that's just the usual give and take of drafting. If every bit of proposed language had been retained, the 2nd amendment would have matched one of the Articles for length!
Perhaps Madison didn't want to foreclose the option of disarming individuals for acts falling short of actual rebellion, such as serious felonies.
In any event, the final amendment incorporated the key language, that it was a "right of the people". Unless you're going to argue that the right to assemble and petition government for redress of grevances, or the right to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" can only be exercised collectively, by and on behalf of government, this puts him in something of a pickle.
If you start from the fixed conclusion that the 2nd amendment cannot guarantee an individual right, (Which is where most liberals start out.) you're going to accept Finkelman's reasoning, such as it is, because it leads to where you started out.
If that's not where you started out, and plan to stay, it's not so impressive.
Oh, and the right to do something doesn't imply the right to be subsidized in doing it.
Here's a couple of quickie "Sandy" points before responded to Brett's lack of knowledge of history:
ReplyDeleteSandy's short 2007 essay that Joe provided a link to seems prescient with a major happening in Iraq yesterday.
It has been reported that there have been 74 school shootings since Sandy Hook.
And then there will be 75, and a little later 76, since nobody has found a way to commit negative school shootings, the number can only go up.
ReplyDeleteAnd for gun grabbers, even a problem as small as school shootings, one of the rarest forms of death on the planet, justifies any attack on the right to keep and bear arms, because you don't need any justification. You started out wanting to attack it, and any excuse will do.
Note: We are now at 114 comments, the thread has gone off topic, and why?
Because Sandy can't be bothered to reply to a comment thread he himself started. He's not really that much better than the posters who shut off commenting, in the end. I guess he didn't really want a conversation.
I think I understand where he's coming from: He no longer wants to discuss the Constitution we have, because he's given up on it, and is just looking for ways to get rid of it.
The problem he faces, is that many of the aspects of the Constitution he hates the most are actually quite popular, and any process to replace the Constitution which didn't replicate them, perhaps to an increased degree, would lack democratic legitimacy.
You can dream, Sandy, of a constitutional convention that dumps the 2nd amendment. But the reality is that any constitutional convention that did that, which produced a constitution YOU liked, would be so blatantly rigged as to be a joke.
Because your view of what makes a good constitution is unpopular.
Maybe you should aspire to making it popular, first, instead of trying to find some way to implement unpopular constitutional changes in a democracy?
And Brett doesn't accept that the 2nd A is not absolutist as he desires as a self-proclaimed anarcho libertarian. Brett is a potential insurrectionist and presumably NSA, FBI, Homeland Security, local officials and his neighbors know of his views. Attacking Sandy for not responding is a cheap shot, especially since Sandy has accommodated Brett's trolling with views that cannot be supported by history done by historians and linguistics scholars. Keep in mind that advocates before the Court rely on "law office" history, and so do sine Judges/Justices, as demonstrated by both the majority and minority in Heller/McDonald.
ReplyDeleteBrett says there will be 75 and counting more school shootings. Perhaps Brett will home school his mixed race son for the latter's protection from insurrectionists.
Yes, I don't think Prof. Levinson posts here for a direct "conversation." He blogs as a way to express his views & has lots of things to do and interacting with blog peons like myself is not high on his list. But, I appreciate him leaving open comments, so I and others can respond and often disagree. This makes him like many others (many bloggers don't respond to comments much) but unlike those who don't allow comments (for reasons noted).
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteAs to the substantive issues, SL continues to "discuss" the Constitution, even as he in some places shows distress over it. He has been on this new convention theme for years; meanwhile, he continues to discuss the Constitution.
ReplyDeleteTwo top rather conservative NRA supporters lead the way for the major "gun control" legislation in the Senate, which was not pushed by "gun grabbers," but lots of people who support gun rights. This included a leading Democrat with a firing range in his porch. Brett is not much for "discussing" either with such rhetoric and repeatedly talking past people.
As to Finkelman's argument, again, there are various ways to protect the personal right. I don't see Finkelman saying the Framers denied people had a personal right of self-defense using firearms. He was discussing the specific amendment in question. Likewise, there are various types of "assembly" and "association," like intimate relationships. That isn't what was on their minds for the 1A.
In time, especially with other amendments, the intimate relationship right was well recognized, including as part of the 1A. So, what they themselves thought is of limited importance. Finally, Finkelman explained how "the people" can have different connotations depending on the context. Still, he noted the group connotations of "assembly."
BTW, Sandy Levinson et. al. supports a personal right to firearms. He and other "liberals" so think. And, he and other liberals have open views on this question. Various ones have altered in some fashion they analysis. This has been seen in the writings and so forth.
All sides have "fixed" views to some degree, many people having strong views, some strident about it. When 90% support something or when less than a third support true "gun grabbing," it does feel off when one major side is singled out. Still, to be fair, we see such stereotyping by both sides on various issues.
Finally, Shag's news alert is depressing but does underline the value of the militia view of the 2A here. It would protect "individual rights" in various ways (e.g., there is a "right to vote" that belongs "to the people" but it is an organized sort of thing; it also has individual rights attached to it) while setting up responsibilities (including various "gun controls"). Meanwhile, the dangers to license here is shown.
[edited]
I'm far more likely to home school him for protection from math teachers following the latest fad: "Friendly numbers".
ReplyDeleteI do thank you, though, for identifying why Democrats aren't so concerned with stopping the surveilance state: You expect to be using it on your political enemies, if you're not already. But you're barking up the wrong tree trying to intimidate me on that basis, I've been on government lists since my 20's, and never let it intimidate me.
Hm, fewer real school shootings than I thought. Even to the point where the list included incidents of legal self-defense.
ReplyDeleteOf course Brett was an "innocent" when he was born in Northern Michigan but perhaps in his suckled youth the unregulated private militias in that area with racist overtones were influential in his "rise" on government lists that he might consider a badge of honor. I don't know if he is in an unregulated private militia in his new southern venue, but it's good to know that eyes are upon him. Brett continues to duck taking the bail I offered on his needs of an arsenal for self-defense everywhere against whom, what enemies. So authorities keeping eyes on Brett is a positive.
ReplyDeleteIn my view, Finkelman made mincemeat of Sandy's views that Sandy gentlemanly implicitly accepted. Sandy's views were not based on the historical aspects but rather current views. Heller/McDonald decisions were not based upon originalism; rather, these were political decisions. Both the majority and minority failed proper historical review and linguistics.
ReplyDeleteSlavery was not only embarrassing but evil. It took a Civil War with many deaths and the Civil War Amendments to eliminate. But Jim Crow followed with unregulated private militias (KKK) to thwart the Amendments.
The 2nd A was embarrassing because as America grew the role of well-regulated state militias had been replace in various ways, such that such militias became dormant.
The history of the 2nd A shifted post Brown v. Bd. of Educ. and the Civil Rights movement. The NRA's gun safety movement changed to individulal, not collective, augmented with funding by gun manufactureres. This contributed to political dysfunction as the power of the NRA was too much of a political challenge to mainly Republicans and conservatives. Race, demographic changes are involved.
In my view, Finkelman made mincemeat of Sandy's views that Sandy gentlemanly implicitly accepted. Sandy's views were not based on the historical aspects but rather current views. Heller/McDonald decisions were not based upon originalism; rather, these were political decisions. Both the majority and minority failed proper historical review and linguistics.
ReplyDeleteSlavery was not only embarrassing but evil. It took a Civil War with many deaths and the Civil War Amendments to eliminate. But Jim Crow followed with unregulated private militias (KKK) to thwart the Amendments.
The 2nd A was embarrassing because as America grew the role of well-regulated state militias had been replace in various ways, such that such militias became dormant.
The history of the 2nd A shifted post Brown v. Bd. of Educ. and the Civil Rights movement. The NRA's gun safety movement changed to individulal, not collective, augmented with funding by gun manufactureres. This contributed to political dysfunction as the power of the NRA was too much of a political challenge to mainly Republicans and conservatives. Race, demographic changes are involved.
Prof. Levinson's seminal law article was some years back now (hint: I downloaded it in a major library, since I had no home service, nor did other local libraries), but then and now I found it good reading.
ReplyDeleteSince neither of us are bound to "originalism" (his friend/sometime writing partner Prof. Balkin formulated some form of it -- Prof. Kerr at Concurring Opinions suggested what to me was a sort of "satire" description of what B. is trying to accomplish there .... if so, originalism provides a lot of material), it is okay if Levinson doesn't rest on that.
Like he and a majority of the population of this country, including liberals, think all the same there is some individual right to own firearms, however it is found. On that level, I think the dissents in McDonald were misguided, especially given Breyer's pragmatism.
The next time a gun case comes up, hopefully (perhaps by Kagan) a middle path is taken by the liberals on the Court. As is, Scalia's opinion was probably influenced by moderates on the right.
Like the blind men touching different parts of the elephant, we should take the different voices as a whole. Some strident voices on both sides notwithstanding. So far, the lower courts have found this possible w/i the Heller framework.
I am not an originalist and can understand how through living constitutionalism an individual right might be recognized to a certain extent, including by liberals. But what the individual right might lead to is an absolutist position, in which case a living constitutionalism could prove deadly, with potential anarchy and tyranny. The positions of the absolutists on the 2nd A is becoming the tail that wags the dog (i.e., the Constitution). The central government because of political dysfunction I described in an earlier comment may not be able to provide domestic tranquility in a state that takes an absolutist position on the 2nd A.
ReplyDeleteRegarding self-defense, that was established at common law and adopted in the colonies and then the states but there was not uniformity in what constituted self -defense among the states and as I understand it the central government did not have its own self-defense rule. There have been significant changes in self-defense rules in various states that reflect opposition to Brown v. Bd. of Educ. and the Civil Rights movement, in effect continuing the Nixon Southern strategy, especially with the changing demographics and political dysfunction on immigration. Look what happened to Cantor. And consider Jack Balkin's post on the possibility of impeachment that would add to political dysfunction.
This comment has been removed by the author.
ReplyDeleteProf. Kerr's comment, which I take as a bit exaggerated but YMMV, is found on this thread:
ReplyDeletehttp://www.concurringopinions.com/archives/2014/06/originalism-and-same-sex-marriage-2.html
As to the federal position on self-defense at the Founding, I gather they had something, given federal areas outside of state control. It would be logical if it rested basically on English common law precedents.
The situation in Iraq worsens day by day. Calls for America to send in the drones I assume will not be heeded.
ReplyDeleteI had occasion to read some good articles the past several days.
1. Brad Snyder's "The Former Clerks Who Nearly Killed Judicial Restraint." Links to SSRN are available at the Legal History Blog and the Legal Theory Blog. I'm hoping some of the former clerks respond.
2.Stephen E. Sachs' "The 'Constitution in Exile' as a problem for Legal Theory." A link to SSRN is available at Larry Solum's Legal Theory Blog where he gives it a Highly Recommended shout out and to Download it While it's Hot.
Each article addresses, in different ways, constitutional interpretation. Sachs ends up comparing Ackerman, Strauss and Balkin views. His Conclusion suggests that each theory has flaws. If it takes a theory to beat a theory, what's next?
Joe,
ReplyDeleteI had seen the Concurring Opinions item you provided a link to. I have tried to comment there but I think Gerard may have blocked me, unless there is some step I am missing in what seems to be an overly complicated spam system for a half blind geezer.
But back to unregulated private militias here in America, are their goals an "American Spring"?
Further on self-defense, why limit to the home? Under common law, self-defense could be availed of just about anywhere and by anyone. But what about the means of self-defense? Heller/McDonald selected "arms du jour" in the form of guns that could have great firepower. Is such great fire power also appropriate for public places?? Might lesser firepower be appropriate, say, in a subway, a church, a bar, a courthouse, etc? After a while it can get pretty silly, but deadly. Imagine the crossfire between a bad guy with a gun and a good guy (or guys) with a gun, sort of like a circular firing squad. Also there is the difficulty of sorting out in public places the good guys with gun from the bad guys with a gun.
When it deigns (to paraphrase someone, "I won't guess what those clowns will do") to decide another 2A case, it might be to settle the outside the home question. Lower federal courts have made it clear that it is protected outside the home, even if Heller a few places said it (shades of the castle doctrine?) is particularly strong there / perhaps a somewhat different weighing of interests. Then, there is the dissent in the Quicili v. Morton Grove case (profiled in Caroline Kennedy's book on the BOR) that thought the right at home was a privacy right.
ReplyDeleteFrom a legal perspective, the Court's failure to take any more 2nd amendment cases since McDonald is very troubling. There's a glaring circuit split on carry outside the home, no lack of good test cases, and some courts are running with Heller, some doing their best to spike it. No matter WHAT your views of the legal merits, the Court has no excuse for not taking 2nd amendment cases.
ReplyDeleteCert only requires 4 votes. The Heller/McDonald minorities can't be expected to vote for cert until one of the Justices in the majority is replaced; They can only expect to lose ground.
5 voted for Heller and McDonald. I can only conclude that at least two of the majority in those cases are not averse to seeing the lower courts make a joke of their ruling.
I would speculate that only 3 or less of the Heller majority really wanted to take the case, though once it appeared before the Court they couldn't see their way clear to being complicit in entirely destroying the 2nd amendment. The remaining one or two votes for cert must have come from somebody in the minority, who optimistically thought they might prevail.
Now that the Court has assured that the 2nd amendment won't entirely be abolished for a while, and the minority knows they have no hope short of one of the majority being replaced, there are no longer votes for cert.
I predict, although not confidently, that the Supreme court will not take another 2nd amendment case until one of the majority has been replaced with an anti-gunner, or one of the minority with a pro-gunner, or, at a minimum, until the 2016 election has clearly shown which way a replacement Justice would lean.
And this is obnoxious, because it means they're shirking their duty for non-legal reasons.
Brett's speculation on cert and his anxiety for the Court to take more 2nd A cases is a confirmation of this earlier observation of mine:
ReplyDelete"The positions of the absolutists on the 2nd A is becoming the tail that wags the dog (i.e., the Constitution)."
The Court takes and decides very few cases each term. There are legal issues, constitutional and not constitutional, that are more important than the 2nd A. Brett as a 2nd A absolutist AND a self-proclaimed anarcho libertarian is plain wacky if he thinks there are 4 Justices prepared to go down the potential route of anarchy and tyranny that would follow such absolutism.
I repeat from earlier:
*****
So back to Brett and his arsenal of weaponry to provide him with self-defense not just in his home but everywhere. Whom does he fear? Is it government? Is it the words of liberals? Is it the changing demographics and its potential impact on Whites who have historically (now hysterically?) served as the base of America? Is it immigration issues? How does self-defense come into play with his arsenal? Might it tend towards anarchy, insurrections? Exactly who are the enemies threatening Brett for which he needs his arsenal for self defense?
Here's an earlier comment directed to Brett:
"Is Brett suggesting that there should be equality of firepower for all? Perhaps this should be financed by the federal and state governments. Keep in mind that Brett's concept of "reasonable" gun controls would be governments providing lockers in certain places where guns should not be carried with the proviso that the government provide for the protection of carriers in facilities where their guns are checked and provide for damages for failure to do so."
but he did not take the bait..
****
I assume Brett wants more firepower for himself and other absolutists for whatever his/their goals are, perhaps for self-esteem, their manliness, their problems with changing demographics.
Let me assure you, Shag, that you are an utter failure as a mind reader. And I'm still waiting on your correcting my history. Here's some history, go ahead, show me it's wrong.
ReplyDeleteNice try, Brett. James Madison was aware of the views on arms in PA and certain other states (NY, MA, NH) in drafting the 2nd A. Madison's first draft did pick up from PA the matter of conscience. Madison rejected the views of self-defense, etc, and eventually matter of conscience was dropped. The fact that there were antifederalists and others wanting a reference to self-defense, hunting, etc, in the Bill of Rights may be interesting but the 2nd A as adopted by Congress and subsequently ratified did not provide therefor. That's the history of the 2nd A as adopted/ratified, tying in the role of the central government with state militias provided in the 1787 Constitution. What part of the 2nd A as adopted by Congress and ratified by the states reflects the history of Coxe?
ReplyDeleteRegarding my failure as a mind reader, why not just take the bait?
I see nothing but assertions there, Shag, in a futile attempt to counter actual quotes. You make claims, but provide no evidence.
ReplyDeleteIn that respect, you're doing the same thing Finkelman did, only without a big hunk of change from the Joyce foundation for having done it.
The anti-federalists got the one big thing they wanted out of the 2nd, even if they didn't get a laundry list. They got a right of the PEOPLE. Just like the 1st and 4th.
Madison actually thanked Coxe for explaining to the public what the 2nd meant, and you can't erase that from history, even if it's inconvenient to you.
That's why the anti-gun side doesn't have anything like guncite: Because the actual history is against you. That's why you had to resort to 'living' constitutionalism, and reject originalism. Because the original meaning wasn't to your liking.
There really is a disparity of evidence here, which is why you didn't provide any, just claims. I wonder: Do you even understand the difference between saying Madison did this and that, and quoting Madison?
Brett ignores the text of the 2nd A and thus its original meaning/understanding or whatever the changing views of originalism that originalists of today rely upon, an evolving, living originalism. Brett seems to suggest that the fairly short, concise 2nd A as enacted by Congress and ratified by the states incorporated Coxe's views. That's a leap. That's a repudiation of textualism.
ReplyDeleteI think it's nice that Madison was polite to Coxe. But while Madison may have been the author of the Bill of Rights, it was enacted by Congress and then ratified by the states. With multiple parties involved, there is of course the problem of determining "original intent," the first originalism basis that Paul Brest successfully challenged and which most originalists abandoned in a search for at least some objectivity.
Now perhaps Brett could supply a historical analysis to support his absolutist 2nd A view as he is unsatisfied with Heller/McDonald, with a view to seducing 4 Justices to grant cert on another 2nd A case, and so Brett can lock and load to accomplish whatever may be his goals with his arsenal.
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ReplyDeleteMadison actually thanked Coxe for explaining to the public"
ReplyDeleteA politician politely "thanked" someone for "explaining" the 2A. Brett in some other context might not find this overly impressive.
As noted in the 2A biography book, Coxe also had a more restrictive view than Madison on the reach of the religion clause and let Madison know about that too. Is Brett saying that Madison agreed with Coxe on that too?
The so-called "anti-gun" side supports gun rights. Not only the for sake of discussion views I expressed channeling Stevens (who I disagree with here). They support, like Prof. Levinson and other liberals, an individual right to own firearms. Then, there is the true "anti-gun" side which is a much smaller subset.
Each side has provided lots of scholarship, with quotes and footnotes and everything. Finkelman is just someone I cited because I'm reading a book by him. As I noted, I personally read numerous materials here. On various sides of the spectrum. The black/white approach of some is less convincing.
Moving on, I wonder if Prof. Levinson, as Prof. Dorf did at his blog, read Tribe's new book on SCOTUS. Seems a lot of them these days.
[edited]
Joe, I followed Larry Tribe's guest blogging at the VC on his book and was quite interested. I just read Dorf's blog post on Tribe's book. Here's how Dorf closes:
ReplyDelete****
Put differently, one thread of the argument in Uncertain Justice contends (correctly in my view) that constitutional law is uncertain in the way that the weather is uncertain. There are so many moving pieces interacting in so many ways that any relatively simple model will have only modest predictive power, and less power as time goes by. That's true of ideological models no less than formal legal models. Admittedly, the "attitudinalists" can do a better job than the lawyers can in predicting the outcome of particular cases with relatively clear ideological valences. But neither sort of model is very good at telling us how the Constitution will be read a decade (or more) down the road.
For that sort of story, we need to watch the work of the Court (and others) in real time. As we near the end of the first decade of the Roberts Court, Uncertain Justice provides a window on that process as it has unfolded. The book does an excellent job of showing where the Roberts Court has been and as good a job as can be done of showing where it might go next.
posted by Michael C. Dorf at 7:00 AM on Jun 11, 2014
****
Stephen Sachs' article is along the sames lines, although he doesn't address Tribe's book. Tribe gave up on completing his treatise on con law. Whether it's Bozos or Clowns, we have to wait to see what the Court does.
"Brett ignores the text of the 2nd A"
ReplyDeleteI actually cite the text, how is that ignoring it? It says, "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."
Got that? "right of the people", just like in the 1st amendment, where we're talking individual rights, just like in the 4th amendment, where we're talking individual rights.
We have perfectly coherent explanations of the 2nd amendment, dating back to the time of it's adoption, explaining the reasoning behind it. We've got legal comentary from people like Judge Story, who knew the founders. We've got an unbroken record of the public understanding it to be an individual liberty, from then until now. The 2nd amendment is one of the best documented parts of the Bill of Rights.
You just don't like what it means.
"The "anti-gun" side supports gun rights."
Like hell they do. You don't put that much effort into rationalizing that an amendment which expressly directs a right not be infringed doesn't really mean what it says, if you support the right in question. You don't support D.C. and Chicago in their legal fights, defend the most extreme outlier attacks on a libery, if you support it.
They 'support' the right in question, by redefining it into something that isn't a right. A 'right' to be armed when serving the government in the military. Would you call somebody a defender of freedom of speech, if they insisted that the 1st amendment protected the right to answer when the government orders you to testify, and nothing more?
There was a time when it wasn't so clear that attacking the RKBA was 'political hemlock', when a more tightly controlled media environment was fostering preference falsification, and it actually looked for a while like gun rights weren't popular. Back then, the anti-gunners weren't shy about saying what they intended to do, and we've got their statements from back then. Like Feinstein, interviewd on 60 Minutes: "If I could have gotten 51 votes in the Senate of the United States for an outright ban, picking up every one of them -- Mr. and Mrs. America, turn them all in -- I would have done it." Right, she supports gun rights.
Joe, this level of rationalization is unbecoming of you. You'd have to be insane to think that claim was true.
The people Brett disagree with here also have “coherent” understandings and use text, history and so forth to spell them out. They might be wrong, but not "deluded" or "inane" or any other word you want to toss at them.
ReplyDeleteI still don't understand why a black person in 1820 South Carolina, e.g., would not like “the right” to be armed to serve the militia – as antebellum court rulings noted, a person does not “keep and bear” arms while hunting deer. The words, at least as understood by some (as the “biography” book noted, there was a division of understandings, just as in the 1790s, some thought the 1A only guarded against prior restraint – they were not “deluded” or “lying” either), can mean that.
Why is this not a right? The 1A says “freedom of speech” – if the 2A said “freedom to possess arms” or something, for example the PA language Shag alluded to, it would be a lot more clear. Brett then says the right would be inferior. Well, if the 1A only applied to prior restraints, it would be too, but it still would not be “deluded” to say it protected some form of right. Gays, e.g., think it rather important to have the RIGHT, the RIGHT to serve the military. Maybe, they are deluded?
Anyway, I don't rest on that. I am not concerned with some minority, which I don't doubt exists, who want to broadly ban guns if they had the chance. Someone who became mayor after someone was brutally shot dead or maybe someone else. I'm ultimately concerned with the general public, including liberals like Sandy Levinson or the current pro tempore of the Senate, who talked about having a target range in his front porch. They are not “gun grabbers,” including if they – like 90% of the public according to polls – wish to support gun regulations of the sort sponsored by two conservative NRA supporters in the U.S. Senate. Whatever a small minority wishes, this reflects what will pass.
I'm sorry if Brett thinks less of me if I think this is true.
Brett sluffs over the prefatory clause. Who well regulates a militia? Is it each individual member in his own individual manner? Or do we have to look to the 1787 Constitution for the role of the central government with the state militias? As to the right of the people, Finkelman made mincemeat of Sandy's view, as "people" used in various parts of the Constitution and Amendments can have different meanings, conotations. And Brett ignores the military meanings of "keep and bear arms." Brett is overanxious to lock and load. I think he would be a bad guy with a gun (I assume he has an arsenal in waiting). But then he may think I'm a bad guy without a gun, or a knife, or a dirk, etc. So be it.
ReplyDelete"Why is this not a right?"
ReplyDeleteI've already explained that. A 'right' to be armed only while you are serving your country in the military, is an absurdity. It's like a right to speak when being compelled to testify. A right to walk, when on a forced march. A 'right' to do something if and only if the government tells you to do it? That's not what the word "right" means!
This is nothing but a bit of sophistry designed for no purpose but to enable people who are utterly devoted to the destruction of a right to claim that they support it. And it's not even a long-standing sophistry. It originated in the early 20th century, when federal level politicians first started getting interested in gun control, and needed an excuse as to why they weren't violating the 2nd amendment.
"Brett sluffs over the prefatory clause."
No, I don't, and you and I have been jousting long enough you would know better, if you weren't blowing off everything I say.
The justification of the amendment is that a well regulated, which is to say, well trained and equipped, militia, is necessary to the security of a free society. How does the amendment safeguard having such a militia? By protecting the right of individuals to own and practice with arms suitable for militia use, so that a large pool of armed citizens will exist from which such a militia can be raised.
Why is it not sufficient that the government itself can arm members of the militia? Why is it not sufficient that just militia members have the right?
Because it was not presumed that the people running the government would WANT freedom to be secure. It was projected that, at some point, the government might set out to eliminate the militia system. (As did happen!)
And, if the government set out to eliminate the militia system, one could still be raised in a pinch, so long as the population was armed.
As I've said before, the 2nd amendment protects the militia system from the government, in the same way a right to own firefighting gear would protect a volunteer fire department from a government run by arsonists.
Arsonists like you.
Perhaps Brett's concept of a "well regulated" private militia, such as in Northern Michigan in days of Brett's youth, is with a ration of prunes keeping at least their arms busy as " ... the 2nd amendment protects the militia system from the government, ... " in the manner of Shay's Rebellion.
ReplyDeleteYes, Brett discloses what his real goals are as a 2nd A absolutist AND self-professed anarcho libertarian.
Seriously, Shag, can't you be bothered to at least pretend you've got more than sly insinuations and veiled threats going for you? You complain about my history, and this is all you've got?
ReplyDeleteHere's a relevant quote from Thomas Cooley, General Principles of Constitutional Law (1880)
"Section IV. -- The Right to Keep and Bear Arms.
The Constitution. -- By the Second Amendment to the Constitution it is declared that, "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 amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.
The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.
Standing Army. -- A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them.
What Arms may be kept. -- The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited."
Essentially what I've said. But I don't think an 1880 law text was written by a member of the Michigan Militia.
I've already explained that. A 'right' to be armed only while you are serving your country in the military, is an absurdity. It's like a right to speak when being compelled to testify. A right to walk, when on a forced march. A 'right' to do something if and only if the government tells you to do it? That's not what the word "right" means!
ReplyDeleteBlacks, women and gays have disagreed. They have pushed for the “right” to serve in the military or on juries or in the legislatures, even if the government “tells them to do it” pursuant to group action by agents of the people themselves. They think that is part of what “right” means. In 1792, the militia was going to be used. When used, blacks, e.g., would have the right to take part, including being armed to deal with white miscreants. The trivialization of the importance of this is a bit absurd.
A “right” need not be absolute. Few rights are. Having limited rights don't mean the rights don't exist. The First Amendment, e.g., was originally understood to cover less ground than today such as the range of sexually explicit things allowed as speech. And, part of the argument is that the 2A was addressing a certain thing. Meanwhile, as I have said, the right to possess arms for other reasons, just like intimate association might not be what the 1A was intended to cover & the right still exists in another fashion, is there. It is just not what the “keep and bear” language entails.
I think the 1A covers more than prior restraint. But, I don't think Federalists who thought otherwise were didn't believe a "right" was being protected. That line of argument twists language. It is like when "no" means "not enough." Having enough matters.
It still doesn't mean you have nothing. Again, I don't AGREE with Stevens as a whole. But, disagreeing and perversion of arguments isn't the same.
Shag would have us believe that Madison was merely humoring Tench Coxe. But over 130 years ago, close to a century after Coxe's "every terrible implement of the soldier", the understanding he expressed was the every day legal viewpoint of what the 2nd amendment meant.
ReplyDeleteGoing a bit further back, in the Dred Scott decision, what was one of Taney's justifications for denying that blacks could be US citizens? Why, that if they were held to be citizens, they could keep and carry about with them firearms!
No, Tench Coxe was not some lunatic being humored by Madison. He was expressing the common understanding of the 2nd amendment at the time, and indeed, how it was understood right up until federal gun controllers found it got in their way, and had to be explained away.
"But, disagreeing and perversion of arguments isn't the same."
ReplyDeleteNo, and to be clear, I am accusing Stevens of the latter.
As I've said before, there is a presumption of good faith, but it can be rebutted, and after watching the gun control movement in person for some 40 years, I regard it as having been rebutted.
I can distrust various people too in regard to certain constitutional issues too, but it still doesn't take you where you go. You still haven't shown blacks were wrong when -- after long effort -- to celebrate the "right" to be in the military. etc. etc.
ReplyDeleteIf you want to "target" a narrower range, fine, to use a topical metaphor, but that isn't all you are doing here. As to "gun control," which you agree is okay in a range of ways, the people at large supports it in various ways. Their representatives passed laws in that regard from the Founding.
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ReplyDeleteThis comment has been removed by the author.
ReplyDeleteBrett tosses this in for what purpose?
ReplyDelete"Going a bit further back, in the Dred Scott decision, what was one of Taney's justifications for denying that blacks could be US citizens? Why, that if they were held to be citizens, they could keep and carry about with them firearms!"
The 2nd A references "people," not "citizens." Weren't the slaves "people" even though they weren't "citizens"? But slaves were not entitled to self-defense? Or to "keep and bear arms"? The Founders/Framers were concerned with slave uprisings, insurrections, not just from the Shay's Rebellion type mobs; and the Founders/Framers were concerned with Native Americans as well, the "people" of color of that day. The "slave Constitution" included many provisions to keep slavery in check without using the word slaves. Finkelman has identified several such provisions beyond the more obvious ones.
So perhaps Brett is suggesting that Reconstruction's 40 acres and a mule for former slaves should have been augmented with the addition of a gatling gun to sort of create a level firepower field? Would Brett accept such a level playing field today? I doubt it, what with his high anxiety.
By the 1850s, and Justice Alito covers this in a fashion in his McDonald v. Chicago opinion, various writers have noted the changing views of the 2A.
ReplyDeleteThough any united view is doubtful, many would have accepted that "to keep and carry arms wherever they went" [to quote Taney] was a "privilege" of citizenship and that the 14A so protected, not merely as an equal protection measure at that. Including perhaps as tied to a right of self-defense, not "the security of a free state"
[Taney also cited such rights as "to enter every other State whenever they pleased" not expressly found in the BOR]
Unclear what this tells about the somewhat different language of the 2A and how it was thought of in 1792. This would include as Finkelman notes over federal areas as compared to state control of their own people (see also the 1A where states could still censor, establish religion etc.) Also, note that Taney also cites the 2A language ("the right to keep and bear arms") in another part of his opinion regarding what "Congress" can do in the territories.
Taney, fwiw and I think only so much, also discussed how laws where "no one was permitted to be enrolled in the militia of the State but free white citizen" was evidence of how blacks were of an inferior class.
Again, having the right to serve in the militia, which like jury duty and voting was seen as a basic republican institution, seems pretty important.
Anyway, reading the Finkelman book it reminds me that some too blithely speak of slaves having no rights. They had very limited rights, but they did have rights, including to representation in certain cases. Words of a certain caliber should be used carefully.
" You still haven't shown blacks were wrong when -- after long effort -- to celebrate the "right" to be in the military."
ReplyDeleteYou don't notice any difference between a right to join the military, and a right for those who are in the military to be armed?
One of the reasons the Fort Hood shooter could kill so many, is that our military bases have become "gun free" zones. Presidents often have the troops disarmed before reviewing them. I've never heard anyone espousing the collective rights 'interpretation' complaining that this is a constitutional violation.
Nah, it's an interpretation designed to render the amendment utterly without application.
1787 Constitution provisions on militia:
ReplyDeleteArticle II, Section 2:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; ….”
Article I, Section 8:
“Clause 15. The Congress shall have Power *** To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
“Clause 16. The Congress shall have Power *** To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
These provisions have to be taken into consideration to understand the Second Amendment:
“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 roles of the two elective branches, the Executive and Congress, are significant for a representative form of governance.
These are the constitutional texts to be addressed. Coxe's views on the 2nd A are not included in the text.
Perhaps Brett can come up with more text in the Constitution as amended on the subject, rather than on some esoteric theory that Coxe's views were incorporated because Madison was kindly in listening to Coxe.
So, your position on this is that the prior text of the Constitution over-rides a later constitutional amendment?
ReplyDeleteI'm quite familiar with those clauses, used to tell people that, if the government really wanted to deal with the militia movement, all they had to do was appoint their officers, and dictate a rigorous training schedule, and 90% of the militia movement would evaporate.
But the power to regulate the militia doesn't have diddly to do with violating a right of the people, not of the militia.
The gist of the 2nd A for Brett seems to be that private, non-state, militias are specifically provided for by the 2nd A regardless of whether such private militias are well regulated as provided for in the 1787 Constitution. So the central government is the potential enemy for Brett as a 2nd A absolutist AND a self-professed anarcho libertarian. HIGH ANXIETY!
ReplyDeleteI've stated the gist, and that wasn't it. Either you're not bothering to read anything I write, or you don't care to be accurate.
ReplyDeleteThere is no legal right to form a private militia. States have a legal power to form militias, the federal government to appoint their officers, and dictate their training and equipment.
There IS a legal right to own militia suitable arms, carry them about, and practice with them.
This is so that, if the government discontinues having militias, and the need for them arises, they can be thrown together rapidly even if the government didn't want it to be possible.
Yes, this implies that they might even be fighting the government. The founders were not unfamiliar with the idea that your legal government could get so nasty you'd have to take up arms against it.
Of course, doing so would not be "legal". It would be done only if you didn't care what was "legal" anymore, like the founders didn't care to comply with British laws.
But, the 2nd amendment was absolutely intended to keep that possibility real.
So Brett is a potential revolutionist based upon his 2nd A absolutism AND as a self-professed anarcho libertarian. Here's his punchline:
ReplyDelete"There IS a legal right to own militia suitable arms, carry them about, and practice with them."
which the Court (5-4) in Heller/McDonald have not as yet "blessed." Guns du jour in the home for self-defense were "blessed" but with dicta caveats. Militia suitable arms can go well beyond guns du jour, e.g., a bazooka, flame thrower, shoulder firing missile launchers. Brett's "carry them about" suggests outside of the home, in public places perhaps. Where to practice with them? In public places? In an unregulated manner? An open invitation for wackos. It's comforting that some authorities are keeping an eye on Brett.
I see various differences in the different arguments for the adequate scope of the "right" in question. It remains a right, just as it was a right in England when freedom of the press only applied to preventing prior restraints.
ReplyDeleteYour specific concern with the Fort Hood shooter is best dealt separately there as are many of your concerns here.
The proper policy for army bases here is pretty far afield from what civilians normally, soldiers on occasion (aka the militia as noted by the Miller case) has in way of rights under the 2A.
http://mediamatters.org/research/2014/04/03/what-conservative-media-are-getting-wrong-about/198738
The weak connection there is that Cheney led the way for the congressional brief in support of the individual rights view.
I think this is truly getting to the point of diminishing returns. Anyway, though I wish he had comments, I appreciate Prof. Lederman's continuing, quite detailed, series. Wonder if he would think about editing them into a book of some sort.
Before this thread folds into the Archives of this Blog, consider the impact of Article IV::
ReplyDelete"SECTION. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."
in the event that non-state militia (unregulated) cause disruptions in a state.
The only reason I brought up Fort Hood, was to point out that the 'other side's' understanding of the 2nd amendment has no application. Seriously, a citizen would NEVER be in a position to invoke it, and that's the point.
ReplyDeleteIt was designed to render the amendment void, while pretending that those advocating it hadn't been.
I agree that this thread has about had it, we're just repeating. A pity Sandy didn't feel like participating, but I guess I can understand why: We were inevitably going to end up discussing the constitution we have, and Sandy is sick of that, he just wants rid of it.
That no remotely democratic process would produce a constitution he did like is probably too painful for him to confront.
Brett's:
ReplyDelete"The only reason I brought up Fort Hood, ..."
makes me wonder why he brought up CJ Taney and Dred Scott, ignoring that the 2nd A says "people" and not "citizens." Perhaps in Brett's view slaves were not "people." Yet Brett picked up on Sandy's argument about "people" that Finkelman made mincemeat of. But don't expect consistency from Brett other than that he is a 2nd A absolutist AND a self-professed anarcho libertarian who believes in non-state unregulated militias to act against not only the central government but also state government, challenging domestic tranquility.
As for Brett's attack on Sandy, keep in mind that Sandy's focus has been a couple of hard-wired provisions in the Constitution, particularly 2 Senators from each state, clearly undemocratic, as minority states population-wise can serve as the tail wagging the dog capable of bringing about political dysfunction. Based on Sandy's review of Stevens' book, I think Sandy is well aware that a democratic Constitution via a convention is futile.
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ReplyDeleteto point out that the 'other side's' understanding of the 2nd amendment has no application. Seriously, a citizen would NEVER be in a position to invoke it
ReplyDeleteA gay person (to cite Prof. Amar) would under that approach could have reason to apply it because the 2A (like women who pushed to have a right to join juries, a RIGHT, even if the government determines specifically when it is used) protects "the people" as a whole having a RIGHT to be in the organized militia. If they wrongly are denied membership, they would have a claim.
Or, back in the day, blacks would have a claim since "the people" are protected here, just like blacks had a RIGHT to join the army, not just as cooks, but as armed soldiers.
Likewise, the 2A could be used to protect states in their control of the militia, including a rule where individuals can or even might be required to have specific arms necessary to serve. The federal government couldn't disarm the people in a way to interfere with that.
An individual, like in the Bond case, can bring a 2A (or 10A) claim if prosecuted in a way to block state discretion here. Also, like the 3A, it states a general principle even if no good opportunity arises such as there not being made claims arising from the no test oath clause.
These are just examples. The regulation of army bases still doesn't seem very useful here to bring up even there. Again, just saying this for academic value. It is not the limits of my views or the view of the average person, including liberals.
Prof. Levinson discusses the current Constitution with the mind-set of keeping it other places, including his job.
http://www.utexas.edu/law/faculty/svl55/courses/
He vents here in certain ways, which is probably healthy.
The Paul Finkelman book on slavery and comity is very interesting and probably has applications today.
ReplyDeleteStevens' book is currently in transit to my library. I will end here & in a later SL post will perhaps comment about it.
Happy Fathers' Day and RIP Casey Kasum.
I acquired Finkelman's "An Imperfect Union" some years back for a research project on the impact of the Somerset case in pre-Civil War America. It is a great read and does have implications today. As I recall, it does not directly address the 2nd A, and the Index seems to confirm this.
ReplyDeleteBut for the Civil War, CJ Taney was probably prepared with NY's Lemmon case to override Somerset as unconstitutional as a follow up to Dred Scott.
Sorry for going off topic, but this seems like a good time to remind everyone that Baghdad Bart thought that invading Iraq was a good idea.
ReplyDeleteI'll just say a word about the book here.
ReplyDeleteFirst, getting multiple Supreme Court justices to provide blurbs is a good deal, if one or more of them were rather bland.
Second, as I said in the past, I'm not really gung ho about the amendments as a whole. I'm sympathetic with some of what they cover but even then the wording is questionable to me in various cases.
The discussion in each chapter is worthwhile if a bit too brief (I found that true sometimes in his opinions too -- too much Holmes, not enough Brandeis) and a bit too sure of himself.
I agree in various cases that he raises important problems, but don't think amendment approach generally the way to go with them. Still, it's a quick read and generally worthwhile (it's 130 or so small pages + the Constitution ... probably as quick as two longish Shag law articles).
FWIW, I think the best idea would be some overall amendment that deals with electoral matters, partially since I see some bridge there between the sides. After all, e.g., gerrymandering helps both sides, at different times. It also can be part of a package to address things like the natural born citizenship rule for Presidents (both sides have favs who are disqualified), voting rights (admittedly less likely) and DC matters (people like Orin Hatch open to giving them a seat in the House in return for something else ... I think it is currently not allowed, but an amendment can change that). I am very wary of it, but honestly, some sort of campaign finance provision can factor in here.
Joe, blurbs are sometimes a matter of professional reciprocity, sometimes they are tongue in cheek. There have bee a few amusing articles/essays on blurbs. Recall David Bernstein's book resuscitating Lochner. Jack Balkin provided a blurb. Consider Jack's several articles on Lochner to the effect that Lochner was wrong back then and wrong now (although the Roberts Court conservatives seem to be giving Lochner mouth-to-mouth).
ReplyDeleteDropped by the library yesterday evening. Stevens' book isn't at the local library, or even in the local system. So, I looks like I'm not going to be reading it.
ReplyDeleteJill Lepore's The New Yorker article "The Disruptive Machine" is a great read (and shorter than some legal articles I refer to from time to tim). It was such a good read that I reread, thinking this time about how it might apply to legal academics as potential disrupters in the nature of innovators. I don't know if Sandy has read this article, but if he has perhaps he can start a thread on celebrity legal academics and their predictive efforts. Or perhaps Mark Tushnet might do so as a follow up to his recent short post on experts in the legal academy on many subjects that might be outside the law. Law school professors seem to have plenty of time on their hands with the many legal blogs that have been created. Don't the law schools pay them enough? I hear over and over it takes a theory to beat a theory. Alas, legal theories abound but are not tested like theories challenged by the scientific method.
ReplyDeleteBy the way, Jill Lepore is a historian. She is, with facts, disrupting the comfort zone of MBAs and Silicon Valley. I await the reactions from both. Can legal academics be far behind in their search for celebrity outside academia like MBAs?
Here's link to Matthew Gallaway's "Six Writers Tell All About Covers and Blurbs":
ReplyDeletehttp://www.theawl.com/2011/04/six-writers-tell-all-about-covers-and-blurbs
I watch Charlie Rose quite a bit and he has some interesting interviews with writers frequently. But he has the habit of reading blurbs. Can we assume the blurb writer actually wrote the blurb, or that he/she indeed read the book in its entirety? Celebrity begets celebrity. Now I'm awaiting an interview by Rose of Jill Lepore as Rose has hyped many connected with (speaking NOT of Sandy) with the Valley's boys and girls: Lean In and Disrupt!
I'm not planning on reading Justice Stevens' book not only because of eyesight issues, rather, so much has been reported, said, that it would be difficult as de novo reading. This is the case for a lot of new books. Biases have to be overcome (via the hermeneutic circle, going round and around). Assuming Sandy's political dysfunction, what are the chances for a constitutional convention? And what might a new Constitution end up looking like? There are too many historical disputes regarding the Constitution we got. Might we end up with a code rather than a Constitution? As my high school buddy Joe (not our Joe here) used to relate his grandfather's saying "Halitosis is better than no breath at all." Perhaps the Constitution we got is better than what a convention might come up with except that it might at least start a new, new, new originalism to haunt the future of interpreting, construing a new Constitution.
ReplyDeleteFor those like myself who have read up on this stuff including Stevens' opinions, the book is repetitive and comes off as a bit shallow at times though as usual he has some good asides. For the average person, the book might be more useful.
ReplyDeleteAs noted in the past, Stevens talked about it on C-SPAN in an hour interview. It basically covers the main points and a transcript is available online.
Anyway, understand the whole blurb thing, but the one from Alito (who Stevens has gone out of the way to agree with such as in the funeral protest case) is particularly bland.
One notable thing about Stevens' proposals is his strategy of inserting verbiage in existing text. This is how Madison suggested we do it for the BOR. But, it's not how it was ever done.
ReplyDeleteIt is a bit strange really that Stevens blithely tries this novel approach w/o comment. Also, he doesn't provide an appendix conveniently providing his amendments in one place.
I think this is partially an editorial problem. It's like when some blatantly wrong fact is left in a book. It happens, but I sometimes think "how did this pass thru the editing process"?
"I think this is partially an editorial problem."
ReplyDeleteHe doesn't have his interns anymore, I guess.
He still has a clerk (paid position). The book also is not self-published. The company also has (paid) editors.
ReplyDeleteBased upon Brett's "guess" about Stevens and interns, I'd guess that Brett has interns trolling the Internet to message his 2nd A absolutism AND anarcho libertarianism, and perhaps to openly carry for him to avoid the spotlight of authorities keeping an eye on him.
ReplyDeleteAs a follow up to my comment on Jill Lepore's recent The New Yorker article on disruption, take a peek at Frank Pasquale's 6/19/14 post at Concurring Opinions "Disruption: A Tarnished Brand." He provides some interesting links. Unfortunately, both at this Blog and at CO, Frank does not provide for comments on his posts. Perhaps he may post further on disruption in law as I suggest in my earlier comment.
ReplyDeleteMoving on, I received a cheap copy (the wonders of online shopping) of "Written in Stone," a little book (with personal photographs -- SL apparently has multiple talents) about the meaning of public monuments.
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ReplyDeleteIt is similarly true that no such amendment would originate from a Constitutional convention, unless the delegates were chosen in a highly undemocratic and unrepresentative way. And, were such an amendment to somehow, miraculously, be sent to the states, it would stand no chance of ratification. You could count on the fingers of one hand the states that would likely ratify.Cheap Elo Boost
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