Friday, September 23, 2016

A Perfect Constitutional Storm

Sandy Levinson

Events of the past decade (should) have made us aware that low-probability events can, nonetheless, take place and test the resilience of systems, whether US banking or levees in New Orleans, that essentially translate "low-probabity" into "never."  So consider the following possibilities, which may indeed be low-probability but are by no means impossible:

1)  Donald Trump either ties Hillary Clinton 269-269 or even apparently wins by one or two electoral votes, either event occurring in essence because of perceived voter suppression in North Carolina or even Texas (which some polls show close to a toss-up).  (Or perhaps it is simply enough that the electoral college boost given Alaska, Idaho, Wyoming, and the Dakotas, is enough to carry Trump over the top, even though he receives, say, only 43% of the popular vote.)  Does it make a difference, incidentally, if Clinton receives more popular votes or not?  In any event, there is (justified) rioting in the streets at the prospect of the narcissistic sociopath actually becoming president and in revulsion at the circumstances that brought this eventuality to passt.

2)  Tremendous pressure is placed by "Party elders" on Republican electors to vote for, say, Mitt Romney or Paul Ryan.  Should enough do so--and the number need not be more than two or three-- there would be no candidate with a majority of the electoral vote.  The election would be thrown into the House of Representatives, which, of course, votes on a one-state, one-vote basis and chooses among the top three candidates receiving electoral votes:  i.e., Trump, Clinton, and Romney or Ryan.  .

3)  The one-state/one-vote system is altogether illegitimate in terms of any 21st century theory of democracy, though it is, of course, constitutionally compelled, so let the fundamental illegitimacy pass.  But now assume, which is altogether possible, that the Republican majority of delegations results substantially from the illegitimate weight held by small states (e.g., Idaho, Alaska, North and South Dakota, Wyoming), which will have the same weight as, say, California, New York, Illinois, Michigan, and Virginia, as well, and just as importantly, from illegitimate partisan gerrymandering.  Consider, e.g., Pennsylvania and North Carolina, whose current Republican majorities are the result of a thoroughly illegitimate (though, the Supreme Court has told us, constitutional) gerrymanders designed to minimize the actual ability of Democrats to elect their candidates.

4)  The House, as in 1801, conducts a number of ballots, since none of the three candidates, Trump, Clinton, or Romney/Ryan gets a majority of the state delegations.  All of the Democratic delegations obviously vote for Clinton, whereas enough of the Republican delegations vote for Romney/Ryan to deprive the sociopath of a majority.

5)  Meanwhile, under the same 12th Amendment, the Senate now chooses a vice-president from the top two candidates for that office.  The new Senate splits exactly 50-50, but, of course, Joe Biden casts the tie-breaking vote until January 20.  So the Senate votes 51-50 to select Tim Kaine as the new vice president.

6)  Meanwhile, back at the House, as it gets closer to January 20, the votes continue.  Clinton addresses the country in a nation-wide speech saying that it is time for a "government of national unity" to overcome the dangerous polarization (evidenced, incidentally, by continuing street demonstrations from disgruntled Democrats and Trumpistas alike).  She therefore states that if selected by the House she is prepared to name a number of named Republicans to significant Cabinet positions.

7)  January 20 comes and goes, with no majority yet achieved.  Tim Kaine is sworn in as Vice President at noon and immediately succeeds to the vacant office of the presidency.  (Are things made any easier, in terms of constitutional crisis, if it is Mike Pence, elected by 51 Republican senators representing, say, 42% of the American public?)

8)  The Republican delegations in the House finally unite behind Romney or Ryan, who thereupon evicts President Kaine from the Oval Office.  Or, if you like, enough Republican delegations accept Clinton's offer of a national-unity government so that she gets a majority of the states (and then evicts Kaine).

I assume the odds of this concatenation of events are relatively low?  But precisely how low?  1%  10%  15% (the odds of losing at Russian roulette in a standard six-bullett handgun)?  Would any sane political system adopt a Constitution, today, that allows for such possibilities?


This is exactly what would have happened in 2000-01 if the Supreme Court had not intervened.

Based upon The Donald's business and political connections, perhaps we should consider the odds of "winning" at Russian Roulette (which Trump and some of his supporters might find support for in the 2nd A), throwing aside Sandy's concatenation.

I'm not sure that very low probability scenarios are the best way to judge a system. That's not to say that the US system is well-designed; it's not for many reasons. But just sticking to presidential elections, you don't need to go through such a convoluted series of events to get at the fundamental flaw, namely the existence of the EC. That, not the various Rube Goldberg add-ons which were inserted in order to alleviate its obvious flaws, creates the whole problem.

That fundamental flaw was exposed in 2000. And, for that matter, in 1824. Nobody then or since has shown much interest in fixing it. The resistance to fixing obvious flaws is not the sign of a healthy republic, but then again neither is the candidacy of Donald Trump. Let's put the blame where it most belongs: Trump himself; the R Party stalwarts (Ryan, McConnell, Priebus, et al.) who've sold their souls to turn the Party over to him; and the voters who vote for him. Those bode far worse for the future of our nation than the prospect that he might lose the popular vote and win the EC.

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Re step #5: I am fairly certain the current Vice President does not actually get to break a tie in the Senate when it comes to selecting the new VP. The Twelfth Amendment says:

"if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice."

The VP is not a Senator. It looks to me like you need 51 votes of actual senators to win the VP vote.

per Mark Field, I agree the support of Trump -- which in popular vote terms will be much too high as a matter of reasonable voting -- is the bottom line concern.

Flaws in the electoral system can be that much worse with such candidates -- they are going to come. And, big picture, it is something we should be concerned about, even if this specific scenario is unlikely.

The dynamic was not "exactly" the same in 2000 even if a close race with one state in some confusion [the final accounting a thought experiment] overlaps.

Bush was seen broadly as a reasonable choice and there would have been no pressure on Republicans to not support him. They could cite the original Florida count and the usual criticisms of Gore trying to game system etc. Even many non-Republican figured he was a reasonable choice, though some later were surprised.

No need for some third party as savior. The House would quickly support him. The 50-50 Senate would be tricky but figure even there soon one or more senators will be pressured to determine it is best to vote for Bush. After all, he's a reasonable type, worked with Dems in Texas etc. I guess if we want to pretend there is some small chance Lieberman could be picked as VP as a compromise here. His support later of McCain as well as his moralistic opposition to Clinton suggests some Republicans at the time (somewhat less partisan) might accept that.

ETA: The race was so close that it very well could have been seen as almost a tie (not in raw votes, but in percentage) so Bush winning would not been seen by the nation as a whole as that unfair. The Trump/Clinton dynamic is different even in popular vote terms it was the same. Since the professor factors in such things, it is important to note that.


Anyway, it's silly at this point to pretend something like the professor's scenario won't happen. I would note such low percentage things will be left open by any realistic compromise Constitution. But, it would be a good idea to fix things here. Some sort of alternative vote counting mechanism, IRV or some other (some don't like IRV ... I'm agnostic about the best alternative), probably would be ideal. The one vote for each state rule is a bit absurd even if you want the House itself to choose. Which I guess is kinda reasonable though I rather another way.

In response to Joe, I withdraw the word "exactly" (I am glad he isn't on twitter). For one thing, I don't think I addressed the possibility of the Senate electing Lieberman as VP while the presidency remained vacant. This wasn't a reasonable possibility under the circumstances at the time. Moreover, as Hogan points out, its not at all clear that the Gore would be able to break a tie.


" Donald Trump either ties Hillary Clinton 269-269 or even apparently wins by one or two electoral votes,"

Even "apparently"??? What, you've reached the point where if he wins, you have to think it's some kind of illusion?

I think the scenario is moderately unlikely. Most likely is that Hillary wins outright. Second most likely is that Trump does. Electoral college ties require not just that the race be very close, but that the states line up exactly right. But, let's suppose an extremely close win by Trump.

Rioting is never justified. Think about what rioting is. It's taking your rage out on innocents. Realistically, most riots aren't even justified by reasonable anger, they're, like the ones in Charlotte, just coordinated looting sprees.

But, let's run with that. You've got a nation divided, Trump wins, Democrats riot in response. You think Republicans don't pull together behind Trump in response to that?

Remember, while Democrats might have a warm place in their hearts for rioters who loot Walmarts and attack people on the expressway, the Right purely hates rioters. Thinks them the scum of the earth.

Widespread rioting by Democrats over a Trump victory would make it virtually impossible for Republican officeholders to get away with not backing Trump to the hilt. Anything else would be, correctly, seen as their giving in to criminals.

So your riots assure Trump takes office, and give him the public support he needs to deal harshly with the left. Trump wouldn't even need to set his own Reichstag fire, you'd light it for him.

Oh, and one request: Please post a comment here telling us when you close comments. Instead of just letting it all go into limbo.


"I am glad he isn't on twitter."

Yeah. That would be bad.

It is not a matter of marginally different word choices or some exact scenario. It is that the two elections are different in certain key notable ways, which Sandy Levinson's own analysis (especially the heat) shows.

It is the nature of Constitutions that they create a system which allows for low-probability catastrophes. It's also called "the human condition".

I guess we have to add Ted Cruz to my list above. Greater love hath no man than this: that he lay down his wife for his friends.

"Rioting is never justified."

I'm little fan of rioting, but Brett, do you condemn the many Founding Era riots such as the Stamp Act Riots, the Quartering Act Riots, the events leading to the Boston Massacre and the Tea Party?

Or do you wanna argue they weren't 'riots?' Cuz that'll be fun.

"add Ted Cruz to my list above."

No secret I'm no Cruz fan, but had to admit I had some admiration for him up until today. He called Trump a serial liar who smeared his *father and wife,* and his convention moment really was a fine one as a man and person of integrity. He just traded that for thirty small pieces of silver....

Thornton is right. No system is immune to going wonky in unusual circumstances. The circumstances might be different for different systems, but they'll always exist.

To a great extent, Sandy is mad that the system doesn't produce the outcomes he wants. He views this as proof the system is broken.

But the system is a democracy. As such, and given public opinion, it would have to be broken to give Sandy what he wants. Because a lot of what he wants is unpopular.

This is a horrifying thing for any man to realize, and very difficult to accept, that many, perhaps most people, reject what he considers right and just, and even obvious. And that, in a democracy, they are entitled to win elections anyway.

That's right: The people are entitled to elect Trump if they want. And if they do, he's entitled to take office.

Yeah, I condemn all riots, even those. Even people with legitimate grievances are capable of doing evil.

What's going on in Charlotte doesn't even rise to the level of evil done in a just cause, though. 70% of the rioters arrested there have had out of state ID. How do you suppose that could be, if the riots were spontaneous? No, they were orchestrated. For political effect. Black turnout might be low without Obama on the ballot. People were predicting last year that race riots would be arranged for, and here they are, right on schedule.

Do you suppose the people those rioters assaulted were guilty of anything that justifies what was done to them? Do you suppose those stores were looted in the name of justice? Charlotte will be years recovering from this, if they ever do, and just to boost Democratic turnout a little.

And Sandy thinks Trump is the face of evil. What a joke.

Cruz was for Cruz and that including not supporting Trump at the convention. He was playing the long game there, using just enough code to leave himself some rope.

He at times served the good in the process but relying on him long term to be principled was probably a sucker bet once it cost him too much. No Beck. (I kid.)

It's interesting. Guys like Brett complain of government burdens and abuses most in the world would find relatively light, and use pretty strong rhetoric in opposition to them, talking of tyranny, and the possible necessity of turning to '2nd Amendment' solutions to such injustices. Yet when faced with civil disturbances by inner city populations they often casually dismiss the complained of oppressions by such populations as slights at best and ginned up anger at worst.

As they describe it, inner city populations are harassed by government at a level only matched by the hyperbolic language of those on the extreme Right. Regularly humiliated and harassed with being 'stop and frisked,' pulled over for 'driving while black,' nickel and dimed by things like exorbitant court costs and fees for minor offenses like parking tickets and being subject to police abuse and violence, these are seemingly not understandable sources of albeit confusedly expressed rage. What really justifies anger is the minimum wage laws and slight increases in upper level tax brackets! Then it's time for a Tea Party (which was a *riot* let's remember!!).

Apart from Cruz handing over his integrity with his manhood, I can't imagine this does him any political good. For those who want to spite him, they can cite him for the 'offense' of holding out as long as he did or if the wind blows the other way for finally caving. If he did that rare thing for a pol and just stuck with his stand at least I think he'd have some grudging respect from some. He's got nothing now. Sad figure.

The Sons of Liberty were organized, often 'outside' agitators and instigators of political violence and riots.

The Right is currently largely found in a movement which names itself on a historical riot.

Interesting stuff.

The Donald has had the international support of Vlad Putin for some time. Now The Donald also has the support of the Cruz Canadacy here in the Western Hemisphere. This demonstrates how The Donald is international in politics and not only in two-thirds of his spousal selections, demonstrating well The Donald's Megalomelania.

By the Bybee [expletives deleted], do others find it tantalizing how Sandy's powers of moderation of comments creates anxiety for Brett in his troll role at this Blog?

Query: How has Spam I AM! reacted to the Cruz Canadacy's recent "All Aboard!" call for supporting the Donald? Silence may be golden, but Beck doesn't give a peck.

I gather, given his political savvy, Cruz received a lot of pressure and felt this was necessary in his long term interests. He's only in his 40s, so Cruz has time and as an incumbent should be favored for re-election. Even if his own party colleagues think him an asshole (any embarrassment surely amuses some of them).

Loyalty to Trump, as despicable as that might seem to some, is basically the name of the game for the Republican Party now, even for people like Cruz. Makes this idea that once he is elected that impeachment would be a serious check since he has no real base a bit dubious though. You break it (here Trump election), you own it.

As to riots, I understand the historical place of public protest, including some that turns somehow violent (we aren't talking Watts here though), as a means for forces without much power to express their grievances. Mr. W. suggests the double standard going on here -- but support of Trump requires that really with all the problems, so it's just a snapshot in a continuing case study.

Anyway, Sandy Levinson suggests riots in the street are warranted regarding the possibility of Trump being President. I think his rhetoric is overblown and a tad bit dangerous since it ups the temperature when we need to keep calm. Public protest very well is deserved in certain instances and this can include acts of civil disobedience etc. Actual rioting tends to be counterproductive though at times over history it just was a basically human relief valve.

This didn't mean tar and feathering and looting tax collectors homes were good things. Does provide perspective -- consider MLK's famous letter from jail to his critics. He tried peaceful protest (though at times it clearly was aimed to instigate violent responses) but the overall idea that what we now honor at the time was strongly opposed by some factions makes modern day conservative voices again not surprising.

The proper route here is obviously for the inner cities to peacefully secede from the Union.

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Low-probability? How about an utter flight of fantasy.

1a) Unless you subscribe to the fiction that US citizens (as opposed to resident aliens) who vote Democrat are too stupid and/or lazy to obtain a photo ID, there is no "voter suppression" in TX or NC.

1b) Did you call for "justified rioting" when Bill Clinton won election in 1992 with only 43% of the vote?

2) Did the Democrat party elders seek to convince the electors to choose someone other than Bill Clinton after he was elected in 1992? In any case, Trump will only win his plurality if the unusually GOP-heavy cohort of "undecided" hold their noses and vote for him. Like the Dems in 1992, the GOP party elders would be celebrating taking back the White House and not how to disenfranchise the supermajority of Republicans voters who cast ballots for Trump.

3a & 4) Given that a majority of voters elected majority Republican caucuses in a super majority of states in the House, I would imagine that the Republicans would want the House to decide the election if none of the candidates get a majority of electoral votes. The prerequisite to this scenario would require the Libertarians to take a significant swing state. Good luck with that.

3b) The gerrymandering myth is only a rationalization to ignore the fact voters have made the Democrats a minority party (in both senses of that word) across the vast majority of the nation outside of the blue megalopolises.

5, 7-8) If Trump wins, the voters will also be reelecting the GOP Congress and GOP state governments, reducing Democrat government to it's smallest position since Calvin Coolidge. The GOP House and Senate are currently polling better than Mr. Trump. According to the NBC/WSJ analysis of their polling, the undecided want a GOP Congress by a 2:1 margin. Thus, if the undecided break for Trump to achieve a plurality win, they will almost certainly break for the GOP Congress. In your fantasy, the GOP Congress will be picking both the president and vice-president.

6) After disenfranchising over 90% of Republican voters by throwing the Electors and destroying the GOP as a viable political party, I guess Clinton could assume the GOP establishment would have nothing further to lose by throwing the election to her in exchange for the proper bribes. Classic Clinton.

Seriously, your posts are getting darker and more lunatic as the election draws closer.

I self-treated my Trump Derangement Syndrome some months ago by accepting that the nation was royally screwed no matter how the election turned out. Because you apparently have the ability I lack to somehow rationalize the election of the corrupt, brain damaged, lying felon dowager queen in waiting as a good thing, then I would recommend you put that ability to work to rationalize the increasingly probable election of President Donald. I, on the other hand, will be self-medicating with a fine bottle of wine on election night.

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Mista Whiskas said...No secret I'm no Cruz fan, but had to admit I had some admiration for him up until today. He called Trump a serial liar who smeared his *father and wife,* and his convention moment really was a fine one as a man and person of integrity. He just traded that for thirty small pieces of silver....

I suggested before the RNC that Trump's best avenue to gaining Cruz's support was to offer to nominate him to the Supreme Court, which is likely his dream job and a perfect replacement for Scalia. Unlike Obama, Cruz really is a brilliant legal mind and constitutional scholar.

"Yet when faced with civil disturbances"

Way to elide what riots really are. Sorry, an unscheduled rave is a 'civil disturbance'. Riots are assault, and robbery on a mass scale.

Way way to much hot air being expended here on something that will never happen. I'm not psychic and I can't tell the future. But I can look critically at facts as they exist and Clinton will win.

She can't change who she is any more then he can. And the vast majority of Americans know exactly who they are. In the end the majority votes for the person who will maintain stability of the government and this country. They see the big picture.

"Cruz really is a brilliant legal mind and constitutional scholar."

Cruz is too dishonest to be a judge. At least, I assume that his response to Sen. Dianne Feinstein's support for an assault weapons ban was dishonest, because, if it was not, then Cruz is a constitutional ignoramus. He said:

“The question that I would pose to the senior senator from California is 'Would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendments, namely: Would she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights?'”

If Cruz is not a constitutional ignoramus, then he knows that the Supreme Court allows exceptions to the First, Second, and Fourth Amendments.

My copy of the Anarchists Cookbook says you're an ignoramus. The Big Book of Secret Hiding Places concurs. But Expedient Homemade Firearms thinks you actually do know better, and are instead dishonest. I'll let them argue it out amongst themselves, I'm content to know you're wrong.

The analogy of book and gun is silly, one is clearly more directly dangerous than the other. That's why you, Brett, don't carry a book for self defense.

Justice Scalia, with nary a dissent on the point, in D.C. v. Heller noted:

"Like most rights, the right secured by the Second Amendment is not unlimited."

As to specific items, a general category of "in common use at the time" or "dangerous and unusual weapons" was cited. I'm unsure how it would not be proper for Congress to fact-find and determine certain specific weapons met this test.

The First Amendment as Henry notes has traditionally had exceptions. For instance, again with nary an dissent on the point, Chief Justice Roberts in U.S. v. Stevens noted that “From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas" and then cited generally accepted categories. Again, I unsure why Congress could not cite that "the following" is fraud and not allow advertising of that type etc.

"The Anarchists Cookbook" doesn't seem to meet the categories in question. I'm reminded of Stanley v. Georgia and its reference to "possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits." OTOH, child pornography is banned as is involvement in certain associations deemed illegitimate such as Al Qaeda. This so even though there is a broad freedom of association. SPECIFIC associations however are singled out.

Guns and speech are treated somewhat differently -- children have more rights to one, for instance as does people in prison. But, there is overlap, including the general idea that there are exceptions and in some cases they can be enumerated.

"I carry a bullet in my breast pocket. Once, a crazy evangelist threw a bible at me, which would have gone through my heart if it wasn't for the bullet."

--Woody Allen


It also fails on its own terms as there are some types of books that don't get First Amendment protection (obscene ones to take one example).

Teresa Wyeth's comment would have been a nice end of the comments. Oh well.

I think you have to distinguish between Cruz the capable lawyer, argued of SCOTUS cases and Cruz the politician pandering to the talk radio level base using the equivalent of facile bumper sticker slogans. One of the creepy things about Cruz is how easily he made such switches and how it didn't seem to make him one bit uncomfortable.

I don't carry a book to defend myself, and I don't carry a gun to inform myself, but they are analogous in that, while there are a few constitutional restrictions, arbitrary bans are just right out, because ownership of both is a civil liberty.

Child pornography is banned on the basis that creating it requires child abuse. Until someone comes out with a gun that requires harming somebody as a step in its manufacture, the analogy is invalid. The reasoning here is "There are permissible restrictions to this right. This is a restriction. Therefore it is permissible."

That's not even remotely logical. Pointing out that there are restrictions on a right that should pass constitutional muster doesn't even start to establish that a particular restriction should. You have to defend the particular restriction in question, not the general existence of restrictions.

Let's go back.

Henry cited Cruz and noted that specific categories of civil liberties are allowed to be banned, be it speech, guns or what is covered by the 4A. As I noted, exceptions can include specific items that fit into those exceptions.

Brett cited two books, which don't even seem to be in those categorical exceptions. Mr. W. probably confused matters by noting guns and speech are different. True enough, but they are also the same in some ways. Anyways, he went back to point out there are exceptions to the 1A. As there are for the 2A.

Brett notes that both are civil liberties and cannot be denied arbitrarily. That's fine. Who disagrees? Then, he notes the reason there is a child pornography exception. Granting that's the sole reason, there are various categories of exceptions with various reasons for them. The same would apply to other civil liberties. Yes, we would have to examine each in turn. Again, who disagrees?

The Cruz quote suggested Sen. Feinstein was treating the 2A differently. Not shown. Again, there are specific 1A things that are banned, just like specific arms could be. If they meet the allowed criteria, they both are constitutional.


Brett, you totally ignored the example of obscene books. Why was that? Was it because you knew your counterargument to Joe's example of child pornography wouldn't work there?

No rights are treated as absolutes, and where the 'rubber hits the road' with *any* right is when the exercise of the right seems especially involving imminent danger. Guns have the latter built into them, they are tools, not bad in and of themselves yes, but they are designed to function in a way that makes them direct dangers to human life and well being. That can't be said of books, and yet *even with books we don't protect certain categories of them!*


2nd Amendment fundamentalists really like these analogies. Guns are like books, guns are like cars. What's silly about these is akin to what's silly about religious conservatives who try to sneak religious symbols and speech into government lands and events, they like to claim that it's not really religious (instead it's historical or educational). They're undercutting what they actually believe to try to win an argument, and that's very close to bad faith. People who want guns don't think they're like books or cars, that's why they want guns! If they were going somewhere they thought dangerous they wouldn't say, 'well, whether I take with me a book on self defense, my car or my gun is six of one, half a dozen of the other!' If they were facing a dangerous situation they would choose the gun right away precisely because they know, and value, that it can produce the most effective means of self defense of the choices, and by effective we mean 'kill or disable one's attackers.' They know this, they *count* on this. And then they turn around and try to argue that guns are 'just like' books or cars.' It's very disingenuous.

Just for the record, my ideas about guns and the law go like this: I was raised around guns, taught to shoot with .22 long rifles (we had a pump action, a bolt action and an automatic, my God were they fun to shoot) before I was 10 years old. I got a 12 gauge pump shotgun when I was a teen ager for Christmas. I currently have a gun in my home.

I don't think the best reading of the 2nd is that it protects an individual right to own a gun for self defense. The last part is especially strained. The 2nd Amendment says what it is about, both in its context in the overall document, it's debate history, and it's text: preserving state militias from federal obstruction and dissolvement. No Lexington or Concord was going to happen under our Fathers' watch. The militia back then was made up of a subgroup of citizens who often brought their own arms, so the protection mentions the right of 'the people' to keep and bear arms. Of course, it also applied to the federal government only, the idea of interfering with state and local gun control is doubly strained.

Having said that, I think a right to defend yourself, which would have to include having the means of doing so such as a firearm, is about as historically rooted in our common law legal system as one can get, and were I a jurist I'd recognize it under any extant substantive due process jurisprudence. Like any law, it'd have to be limited when it's practice creates imminent dangers, but some avenue of defending yourself with a firearm would have to be left available.

As to particular gun control laws, I think they'd have to show that the fairly directly address what could be an imminent danger while still leaving an avenue for armed self defense available. Gun control measures that focus on merely cosmetic features of guns would likely fail the first part. But restrictions such as safe storage, magazine size,
and sensitive places I think generally pass muster.

That's not the law we have, of course. We have Scalia's Heller, which is a disaster intellectually. This is not just recognized by gun control supportive law experts, but also the finest gun rights experts like GMU's Levy. Masquerading as originalism, Scalia's opinion in Heller is a weird, indefensible amalgam of contemporary, popular, natural law and originalism the varying parts of which, if followed through honestly, would cancel each other out. But having said that, Heller gives somewhat clear guidance in that the right recognized is not absolute and that many restrictions can pass muster.

I'll also btw cop to a much narrower view of what's protected under the 1st Amendment speech clause than current jurisprudence protects. I think in enacting it the Founders were just worried about squelching political criticism and debate among adults. I don't think they would agree with the modern jurisprudence about protecting pretty much all 'expression' and the extension of these rights to children. And I think restrictions on speech not involving public issues would have seemed fine to them (I'm thinking of things like 'criminal conversation' laws of their time, but analogously modern concepts like publicity rights or privacy torts protecting non-public figures). We've developed a fundamentalist free speech jurisprudence, and fundamentalism is rarely a good thing.

Having said that, I think a right to defend yourself, which would have to include having the means of doing so such as a firearm, is about as historically rooted in our common law legal system as one can get, and were I a jurist I'd recognize it under any extant substantive due process jurisprudence. Like any law, it'd have to be limited when it's practice creates imminent dangers, but some avenue of defending yourself with a firearm would have to be left available.

I'm not sure why any particular method of self-defense has to be available. I do agree that such a right exists as a matter of due process, but there are limits to that just as there are to other rights. At common law, for example, there was a duty to retreat. Limits on the kind of weapons one can use seem perfectly legitimate, as long as the overall context is reasonable (e.g., one can defend oneself with a gun when Liberty Valance comes to town, but not if attacked by skittles).

Before this thread enters "moderation," I would ask Sandy to provide his definition of "concatenation" as he uses it in the closing paragraph of his post. My efforts at Googling came up with this:

"Concatenation" is the opening track of Swedish Tech Metal band Meshuggah's album Chaosphere.

courtesy of Wikipedia. There is a computer programming definition as well.

Are we becoming a nation of concates?

I'm not an originalist but historical understanding is of some interest and assistance, especially granting how we have applied the Constitution over the years. But, really, it is of limited concern to me what the text of the 2A was understood to mean in 1791. There wasn't one understanding and things changed. FWIW, I agree basically with Mr. W's 2A/militia, there still being a self-defense right there. Likewise, there was a traditional right to use arms to obtain food.

Anyway, the changing understanding was cited by Justice Alito in McDonald v. Chicago:

By the 1850's, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense.

This affected the understanding of its "incorporation" in the 14A and fwiw you can find various statements supportive of a self-defense purpose there. For instance, surely, some saw having a gun a means to protect oneself from the Klan or such. There remained some understanding a militia based right, now generally having blacks too. Still, the popular understanding that the right at issue involved guns for self-defense (and other purposes) continued and today is in some fashion generally a majority view. It also is reflected in most state law.

Akin to what Mr. W. said, evenly applying "liberty," this would help suggest it is a fundamental right. His analysis of appropriate limits is okay, avoiding exact nuances. As to the 1A, I think even back then it was more than "political criticism and debate." Overall promotion of knowledge, ethics etc. was covered too even if some of that was seen more as protected religious exercise. As to children, line drawing was less prevalent there as seen by children working etc. But, things did change. We would have to examine things today. Still, if "originalism" is your thing, Citizens United (see, e.g., Stevens' dissent) etc. has issues.

Finally, the right to self-defense -- per Mark Field -- would have exceptions. The language of the 2A, state constitutions and laws, long practice, general public understanding etc. does suggest that guns specifically are included here. The proper rule of retreat (home v. street etc.) and so on would warrant analysis. On that front, I think the apparent core holding of D.C. v. Heller is valid & that long term it won't be overruled even if various justices rather it be.


Perhaps more relevant to the original, "concatenation" does pop up Shag's Wikipedia entry, but my search then provides a more general definition -- "a series of interconnected things or events." That fits SL's numerated list.

"Again, there are specific 1A things that are banned, just like specific arms could be. If they meet the allowed criteria,"

So, it's all on the criteria. You can't assess the ban without a look at the criteria.

Historically, the criteria in the case of gun bans have been "Anything we think we can get away with banning." Too short, looks military, holds a normal amount of ammo, and even by name. Yeah, the '94 AWB set out a list of arbitrary criteria, and then banned a long list of guns by name.

Like banning coffee table books, paperbacks, any book with a pink cover, and the following fifty specific titles just because we couldn't dream up a criteria that would include them.

Regarding the 2nd A/self-defense discussion, over at the Legal Theorg Blog check out this post:

"Holroyd & Picinali on Self-Defence & the Reasonable Person"

I'm not suggesting that we consider whether Brett is or is not the standard for the reasonable person in such circumstances. Self-defense over centuries has undergone changes as Mark indicates. I am not aware that there is a uniform definition among the states of what constitutes self-defense. Heller (5-4) as I recall did not define what constitutes self-defense, which has apparently been evolving as possibly providing greater protection for a person using a gun than one using human arms.


I think we largely agree. I think there'd be limits on a right to self defense which encompassed firearm ownership for the same, because there's always been such limits known to the common law right to self defense in general. I do think that while such a right wouldn't be tied exactly to firearm ownership it would have to include that, one just can't effectively defend oneself without having a firearm. Of course, many restrictions can apply and still give one a means to defend themselves with a firearm.


I think we mostly agree, even if we arrive there by different (non-accosted by rioters) vehicles.


I read your most recent comment to say that rather arbitrary restrictions on firearms should not be countenanced. Agreed. I think that leaves a rather wide field open though.

So, it's all on the criteria. You can't assess the ban without a look at the criteria.

Which applies to various amendments and can at the end of the day lead to banning specific things. Henry's comment, deemed "wrong," has not been refuted. This shouldn't be lost among all this chatter. He hasn't been refuted.

Historically, the criteria in the case of gun bans have been "Anything we think we can get away with banning."

If you want to simplify this grossly, you can say that about any number of things, including discrimination based on race. A closer look does suggest things a bit more nuanced, specific criteria more open to regulation in the past. But, we aren't tied to the past. We have to look at current understanding and facts when applying constitutional text, including as applied to "arms" matters.

Too short, looks military, holds a normal amount of ammo, and even by name. Yeah, the '94 AWB set out a list of arbitrary criteria, and then banned a long list of guns by name.

And, as I noted, SPECIFIC associations, by name, are banned and have been over the years. Specific criteria can be applied and certain things can be deemed to be open to regulation or straight ban. The same can apply to books or other civil liberties, if done properly. There could be a long list of child pornography or fraudulent advertising or trademark violations. Again, Henry not wrong. Not wrong.

Like banning coffee table books, paperbacks, any book with a pink cover, and the following fifty specific titles just because we couldn't dream up a criteria that would include them.

As Mr. W. notes, specific limits, such as arbitrary cosmetic criteria in certain cases, might be unconstitutional. This goes to SPECIFICS. But, the OVERALL PRINCIPLE that Henry cited is still true. He has not been refuted there.

Cruz: “The question that I would pose to the senior senator from California is 'Would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendments, namely: Would she consider it constitutional for Congress to specify that the First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights?'”


Cruz offered a very reasonable analogy to Feinstein's proposed ban on the mythical "assault weapon." A better analogy would be asking whether Congress had the power to ban books with black covers because black is a scary color. Firearm prohibitionists like Feinstein seek to demonize and ban weapons with cosmetic military styling by labeling them "assault weapons," even though they are not functionally different from other semi-automatic rifles protected by the Second Amendment.



Your analogy fails because a rational case can be made for banning assault weapons (their giving people the capacity to commit mass murder in seconds), whereas no rational case can be made for banning books with black covers. The fact that Congress may have acted irrationally in singling out assault weapons does not make banning them irrational.


With reference to my last comment, maybe someone can help me. I'm sure that the Supreme Court has said something to the effect that the legislature does not violate equal protection if it decides to remedy only part of a problem (thus, as here, to reduce the risk of murders by assault weapons but not those by other semi-automatic weapons). But I can't remember the case or how the Court phrased it.

Henry, the Supreme Court has not taken/decided a 2nd A case/controversy since the McDonald case (5-4) that in effect extended the earlier Hell (also 5-4) to the states. What you may have in mind is Scalia's dicta on 2nd A limitations in Heller that were also referenced in McDonald. And keep in mind that if an when the Court takes another 2nd A case on some limitation(s), that dicta is not controlling. There is an earlier -pre Heller - case still on the Court's books involving limitations on machine guns.

Shag, thanks, but the equal protection case that I was thinking of was not about the Second Amendment. And it may not have been a particular case so much as a standard principle.

McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969):

a legislature traditionally has been allowed to take reform "one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind," Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483, 348 U. S. 489 (1955), and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked. See Ozan Lumber Co. v. Union County National Bank, 207 U. S. 251 (1907).


What rational case can be made that "assult weapons" are any more dangerous than other semi-automatic rifles? In all of them, one trigger pull fires on round. Several hunting rifles are more powerful and accurate than an AR-15.

Putting aside for the moment that the "one step at a time" case law rubber stamping progressive law is a facial violation of equal protection, the right of the people to keep and bear arms is not a problem Congress is permitted to "solve" one step at a time. Rather, this is a fundamental liberty which the 2A expressly forbids Congress from infringing.

Per Shag's comment, the Supreme Court did have a per curiam that held that a lower court used the wrong reasoning in upholding a stun gun prohibition.

Henry correctly notes that the Supreme Court had held that if something otherwise is constitutional, it is not illegitimate for the legislature to not prohibit the whole scope of what they can. They can deal with a specific problem. Thus, e.g., if fraud is not protected speech, Congress can pass a law dealing with a specific problematic aspect of fraud while leaving other means (such as state laws) to deal with others.

It would not be an equal protection problem unless some illegitimate classification (such as content -- see, e.g., R.A.V. v. City of St. Paul) or generally an irrational one in general. But, Heller itself shows that there is a category of weapons that can be banned. So, the question would be if the specific law or ban in question applies that correctly. The fact there is a list of weapons alone wouldn't be a problem any more than limiting the constitutional right of travel by making a list of places that we are at war with. The overall rule is legitimate.

Debating a specific law here is getting into the weeds. Henry remains correct.

Moderation appears to be a 48 hour deal.

Bart, you ask, "What rational case can be made that 'assault weapons' are any more dangerous than other semi-automatic rifles?" But I already conceded "Congress may have acted irrationally in singling out assault weapons." Then I added that that fact does not make banning assault weapons irrational.

From your standpoint, you ought to be pleased if Congress takes only one step at a time. Would you rather it banned assault weapons and all comparable weapons all together? A person who wants to own an assault weapon, but cannot because of a statutory ban on them, is not injured by the fact that Congress has not banned comparable weapons. He wouldn't have standing to sue.

Whatever our politics... Sandy, try not to stroke out while watching the debate tonight. Maybe settle down with a nice glass of wine.

"Putting aside for the moment that the "one step at a time" case law rubber stamping progressive law "

The root precedent there was from an unanimous 1907 decision by Peckham, one of the least 'progressive' justices ever. But when all you have is a hammer....

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