Balkinization  

Monday, December 10, 2018

Brexit is Prohibition

Gerard N. Magliocca

I wonder whether Brexit is Britain's Prohibition. By that I mean that any nation can back a major change with the best of intentions only to learn from experience that the decision was flawed. The only solution, in the end, is a reversal of that decision by the same constitutional process. There is a difference in that Parliament is not legally obligated by the 2016 referendum to leave the EU, but in practice the withdrawal decision cannot be undone without a second referendum.

Prohibition was a disaster, but Brexit shows that no constitutional system is immune from them.

Comments:

Prohibition was a mistake. Brexit is a disaster. It's more akin to the US Civil War or the American Revolution (a British own goal).
 

Of course, the people voted for Prohibition, and were actually permitted to get it, and then the people changed their minds about whether it was a good idea. Nicely democratic at every step; They even amended the Constitution twice, rather than just pretending it had changed its meaning.

Whereas with Brexit, the people have spoken, and the State does not appear inclined to give them what they've demanded. Indeed, it appears to me that the process is deliberately being managed for maximum pain to compel the people to back down.

So, Brexit may or may not be a mistake, but the whole thing is going down in a very different manner.
 

Brexit makes eminent sense because the EU is a drain on the UK economy and a substantial abridgment of their Parliament. However, the UK government is unwilling to play trade hardball with the EU. Under pressure of the same big businesses who opposed Brexit in the first instance, May has negotiated a capitulation to the EU.

The UK has a trade surplus in financial services with the EU, but a massive trade deficit in goods, for an overall trade deficit of about $67 b pounds. Thus, the EU has far more to lose in a trade war than does the UK because of the overall deficit and because It is far easier to erect trade barriers or tariffs against goods than it is financial services. Moreover, the two biggest exporters into the UK (Germany and France) also run the EU.

May should openly negotiate a free trade agreement with the US, while threatening to impose a 25% tariff on key German and French exporters if the EU does no agree to maintain free trade with the UK, without continuing the UK tax payments to the EU. Our exporters would be more than pleased to replace the Germans and French.
 

The Brexit vote was non-binding from the beginning. In the UK, Parliament is sovereign, not the electorate. It's a republic not a democracy.

That's putting aside the question whether government by plebiscite is ever a good idea. I'm inclined to support it in rare cases -- which wouldn't include this one -- but the lies and fantasies propounded by the Brexiters mean we shouldn't give much credence to the result in any case. Those lies and fantasies are now come back to haunt May.
 

Yes, as a legal matter the British aren't the sovereign, they're the ruled over. Maybe this will be enough to prompt them to change that.

More than a bit questionable to ask a question if you're only going to accept the answer if it goes your way, though. "Thanks, just wanted to confirm we were violating the will of the people before we went ahead and did what we wanted anyway."
 

Well, putting aside Cameron's intellectual dishonesty, he seems to have expected that the answer would be "no". But if something's advertised as non-binding, then it's non-binding regardless of the answer.
 

I should add that I can't imagine the Brexiters would have taken a "no" vote as determinative once and for all. That's not how democracy works in any case -- you can't bind a future majority with a vote today (leaving aside the issue of Constitutions, which are irrelevant to the case of Brexit).
 

Tweedledumb and Tweedledumber provide the talking points of their "Tariff Man" Trump whose "trade wars are easy" gives new meaning to a bull in a china shop.

As to Brett's 1:44 PM "violating the will of the people," based upon Brexists' campaign lies and the realities of the costs/burdens that might result that have surfaced since the vote, perhaps a truly representative government might have the people address this with reality rather than those lies that "Tariff Man" supported with another vote to express the current knowing will of the people.
 

Shag:

The EU are the ones threatening to raise barriers to UK goods and services unless the Brits keep paying EU taxes, from which they have never recovered what they paid.

My recommendation is the UK replies to this blackmail by hitting GE and FR where it hurts and then use the US as a lever to reinstate free trade.
 

Russia not only took steps to impact the 2016 presidential election by supporting Trump but also to support the Brexiteers,, to disrupt our election and to disrupt the Brexit vote. SPAM has been in lockstep with his former accused fascist Trump since his election. Perhaps SPAM has no problem with what Russia has done. Weakening the EU benefits Russia. Having Putin's puppet Trump weakens America's National Security interests, including NATO if the EU is weakened.

I'm not making any recommendations but what Comrade SPAM recommends serves Russia's purposes.
 

Shag:

Propaganda.

Totalitarians here and overseas are using the Russians as a scapegoat to blame for successful populist uprisings, See Trump, Brexit and now the Yellow Vest riots against green carbon taxes in France.
 

Seems to me Brexit is a warning regarding how not to handle such a situation.

If you are going to offer a plebiscite like that, it should have done in a more careful way, including perhaps requiring a suitable supermajority, in a more informed way & (if possible) done in a more careful series of steps.


 

Sounds like Bart studied international trade at Trump University.
 

1. I think, contrary to Mark, that referenda generally have extra democratic legitimacy. (Of course, I would say that, coming from California.) Nor does dishonesty in the process change this. All politicians lie. Lying is an integral part of the democratic process. I don't see any reason to consider the decisions of a bunch of people who lied to get into office any more legitimate than a direct decision of voters who were lied to.

Successful referenda mean "the public really felt strongly about this". Now, that doesn't mean they can't change their mind, and I don't have any problem with putting another referendum up, and seeing the British people reverse themselves.

I wonder, though, whether Brexit opponents would concede it needs to happen if a second referendum goes in a favor of "Leave".

2. Sitting here in America, I am rather sick of Americans inveighing on the merits of this debate. It really is none of our business. If Britain wants to leave, it should leave. If Britain wants to remain, it should remain. The entire mini-debate in America about this is classic American arrogance. It really is hard for Americans to accept that we don't get to run the world. Let Britain make whatever choice it wishes and we should all shut up about it.
 

As the Irish journalist Fintan O'Toole points out, Brexit is an English nationalist phenomenon (see his articles in various places or his book: Heroic Failure: Brexit and the Politics of Pain). The poor English are having a hard time getting over Empire and their new standing in the world. The Scots and the people of Northern Ireland voted against it. The EU protects both from the insanity of the voters in largest country in the union and the politicians they elect. Theresa May has paid no attention to the Scots during two years of negotiations. Her government also depends on the DUP, a completely batty protestant party in NI that does not represent the majority of opinion in NI and which is intent on undoing the Good Friday Agreement. Most of the Brexiters couldn't care less about NI and would be quite happy sacrificing the GFA on the alter of Brexit. Opinion polls suggest they'd be quite happy getting rid of Scotland too if that was the price of Brexit. Earlier today a group of cross-party Scottish politicians won a ruling in CJEU that throws the Westminster government a lifeline to get itself out the mess it has gotten itself in but it doesn't look very likely that it will take it. It seems only a matter of time before Scotland demands another independence vote, not because the Scots are particularly nationalistic but because they've had enough of the ridiculous, xenophobic and self-harming nationalism south of the border.
 

"Yes, as a legal matter the British aren't the sovereign, they're the ruled over. Maybe this will be enough to prompt them to change that."

On a separate note, all populaces are "ruled over". That's how government works. There's no mechanism-- even initiatives and referenda-- which allows the public any more than a mild say on how things are run. That's a reality due both the complexity and size of government and the fact that it requires a monopoly on the use of force to maintain. There's simply no such thing as "popular sovereignty"-- whatever organization has the guns and can force compliance is the sovereign, unless and until a revolution or invasion substitutes a different group in power.

So there's no way for the British people to really change this. Even if they held a revolution and overthrew the monarchy and the parliament, it would at most substitute a different group of people who would rule over them.

Having said that, despite the formalities of monarchy, the British system is, overall, quite a bit more democratically legitimate than the American system. At least they have an effectively unicameral parliament (the House of Lords lacks real power over the legislative process) and a prime minister, which means that the will of the voters can effectuate policy, which really doesn't happen over here with all of our veto points. And the Brexit referendum was quite democratically legitimate (as would be any second Brexit referendum as well).
 

"I would say that, coming from California."

Where is Mark Field from?
 

Which is why I don't say that.
 

Alan: The Scots and the people of Northern Ireland voted against it. The EU protects both from the insanity of the voters in largest country in the union and the politicians they elect.

Follow the money.

The EU redistributes wealth from England to places like Scotland. Scotland stands to lose a couple billion in EU subsides after Brexit.
 

Dilan: On a separate note, all populaces are "ruled over". That's how government works. There's no mechanism-- even initiatives and referenda-- which allows the public any more than a mild say on how things are run.

Elections. The purpose of representative democracy is to elect representatives of the people.

That's a reality due both the complexity and size of government and the fact that it requires a monopoly on the use of force to maintain. There's simply no such thing as "popular sovereignty"-- whatever organization has the guns and can force compliance is the sovereign, unless and until a revolution or invasion substitutes a different group in power.

The purpose of our Second Amendment is to deny government a monopoly on the use of force and to make the threat of armed revolution or resistance a very real option.

Even if they held a revolution and overthrew the monarchy and the parliament, it would at most substitute a different group of people who would rule over them.

Hanging the last lot of tyrants does wonders reminding the next lot who it is they serve.

 

"Where is Mark Field from?"

Thankfully, he's outvoted here on the desirability of initiatives. :)

To pick just one obvious example, the entire country would still be imprisoning thousands more black people for marijuana offenses if he had his way and we didn't have initiatives. That ball was NEVER going start rolling from politicians.

The Progressives were right on some things and wrong on others, but initiative/referendum/recall was one of the things they were clearly right on. (Indeed, wouldn't a recall system for Presidents be a great idea?)

"The purpose of our Second Amendment is to deny government a monopoly on the use of force and to make the threat of armed revolution or resistance a very real option."

Um, no. The purpose of the Second Amendment is to create a WELL-REGULATED militia that would theoretically protect the SECURITY of the free state. I know this because the framers helpfully told us what the purpose was.

The same Constitution said that levying war on the United States was treason, so they clearly did not believe that any citizen had the right to "threaten armed revolution".
 

"Um, no. The purpose of the Second Amendment is to create a WELL-REGULATED militia that would theoretically protect the SECURITY of the free state. I know this because the framers helpfully told us what the purpose was."

No, not at all; You don't need something like the 2nd amendment to create a well regulated, (Which is to say, "made regular", well equipped and trained.) militia. If the government actually wants to do that, it doesn't need an amendment guaranteeing the people, not the militia, the right to keep and bear arms. It can always enact a militia act and refrain from disarming the militia; There are other clauses in the Constitution empowering it to do that.

No, actual, express purpose of the 2nd amendment is to take away from the government the decision as to whether to have a militia, to make it possible to raise one even if the government would rather you couldn't. It's like guaranteeing the right to own firefighting equipment in order to assure that you can always put together a volunteer fire department even if your government ends up run by arsonists.

I keep saying this: A bill of rights doesn't exist to enable government to do the right thing. You could have trial by jury without the 6th or 7th amendments, you could have freedom of speech, assembly, and religion, without the 1st. Governments don't need amendments to be ABLE to respect rights.

You have a bill of rights to forbid government from doing the wrong thing. It assumes sometimes government has bad motives, and has to be stopped.
 

Further, it's not hard to demonstrate WHY the founders thought a militia superior to a standing army for the purpose of the security of a FREE state. They came out and said it:

“Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”
– Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 10, 1787

“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
– Joseph Story, Commentaries on the Constitution of the United States, 1833

The intended virtues of the militia system are:

1) You can have more men under arms.
2) The militia, being itself the people, will refuse orders to oppress the people.
3) And, in extremity, if the government tries to oppress the people using a standing army, the militia can fight back.

They absolutely contemplated that the militia might fight the government. These were people who'd just fought their own lawful government, they weren't outraged by the concept.
 

Brett:

Levying war on the United States is treason. It's prohibited. There are no exceptions for "justified revolution" Start there. The Second Amendment does not legalize treason. Indeed, no government on earth has ever legalized treason.

"Well regulated" doesn't necessarily mean every gun control measure under the sun, but the NRA and its supporters do a lot of lying and spinning about what it does mean. It's closer to "disciplined, trained, under command, organized". Which makes sense. It's a miitary force. It isn't a bunch of libertarian idiots with delusions of taking over the government.

Who is going to discipline and train you and for what purpose? The government is, to protect the government.

The Second Amendment contemplates an armed populace like Switzerland, that the government can call up, organize, discipline, train, and command, for civil defense purposes. It literally has nothing to do with overthrowing the government.

And the fact that gun nuts in this country believe otherwise is one of the reasons why y'all are thought to be so dangerous.
 

And by the way, neither Justice Story nor lexicographer Webster had anything to do with the language of the Second Amendment. You won't find anyone who actually did endorsing any theory that the Constitution protects treason.
 

There would be no point whatsoever in having a constitutional provision authorizing justified revolution; No government against which revolution was justified would ever abide by such a clause.

All you can reasonably do is insert clauses to make justified revolution easier, (By assuring an armed populace.) and provide lines in the sand that clarify when a government has decided to become unlawful: When it sets out to disarm the people.

Webster didn't write the 2nd amendment, but he was of the generation that ratified it. Story was well acquainted with the founders, and regarded as an authority on the topic.

Tenche Coxe, promoting the 2nd amendment on behalf of Madison: "Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."

I understand that the left really does not like the 2nd amendment. It stands as a serious obstacle to their ambitions. Hopefully it always will.


 

Comrades Brett and SPAM can dig deep into Heller (2008, 5-4) looking for their revolutionary 2nd A right pony to challenge the government but would come up with blanks.. If such revolutionaries lose, it's treason and the 2nd A does not protect the revolting.

And Comrade SPAM claiming propaganda regarding Russia is ignoring a current plea deal on top of the pile of guilty pleas.

But just imagine our Twiddledumb and Twiddledumber as revolting leaders. Coming on Netflix.
 

"Propaganda."

If there were a scintilla of even innuendo of what's been found so far about Russian meddling in our elections and the ties/dealings of many high officials in this administration to the Kremlin and their subsequent proven lies about same on the 'other shoe' Bart and Brett would be raving for impeachment and revolution and crying treason.

Of course there is similar evidence of their meddling in the Brexit vote.

https://publications.parliament.uk/pa/cm201719/cmselect/cmcumeds/363/363.pdf

"The purpose of our Second Amendment is to deny government a monopoly on the use of force and to make the threat of armed revolution or resistance a very real option."

It is, of course, much more nuanced than that. And were this to be true, it would argue for something importantly less than the Heller majorities 'right to individual armed self defense' interpretation.

"Hanging the last lot of tyrants does wonders reminding the next lot who it is they serve."

Lol, yes, that certainly worked when the Bolsheviks killed the Romanovs, and when the French revolutionaries guillotined the Bourbons!


 

"No, actual, express purpose of the 2nd amendment is to take away from the government the decision as to whether to have a militia"

The actual, express purpose of the 2nd Amendment is *clearly stated in the Amendment text:* "A well regulated Militia, being necessary to the security of a free State"

Another example of a conservative that often poses as a textualist ignoring the text itself for their political ideology.
 

"The Second Amendment contemplates an armed populace like Switzerland, that the government can call up, organize, discipline, train, and command, for civil defense purposes."

I'm not sure it even goes that far. The most reasonable interpretation from the text, history, debates at the time and the structure of the Constitution is imho that it was meant to protect the state militias from the new federal government.
 

BD: The purpose of our Second Amendment is to deny government a monopoly on the use of force and to make the threat of armed revolution or resistance a very real option.

Dilan: Um, no. The purpose of the Second Amendment is to create a WELL-REGULATED militia that would theoretically protect the SECURITY of the free state. I know this because the framers helpfully told us what the purpose was.


Different words, same idea.

As made plain by its use in combination with the people's right to keep and bear arms, the militia means an armed citizenry.

A "well-regulated" militia is one which is trained. As our victorious armed revolutionary Founders well-understood, the militia needs to be well-trained to stand up to regular troops.

The raison d'être for that trained militia was to protect our "free state" (the government which protects our freedom discussed since the Declaration of Independence) "against all enemies, foreign and domestic”

Thus, the purpose of our Second Amendment is to deny government a monopoly on the use of force and to make the threat of armed revolution or resistance a very real option.

Levying war on the United States is treason. It's prohibited.

Our revolution to form the United States was also prohibited.

As our Declaration of Independence noted: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."


 

Mr. W, glad to hear from you. But the closing paragraph of your 8:37 AM comment seems to ignore that the 2nd A ratified in 1791 did not amend the 1787 Constitution's militia clauses granting the central government certain powers over state militias, including calling them into the service of the central government to challenge revolts (like one that was going on in MA). The 1787 Constitution also provided a means whereby the central government could regulate a state militia so that it could properly function, including when called to federal service.

In any event, let's recognize that UK gun controls over centuries have minimized deaths and injuries by the use of guns. And Heller came about in 2008, 5-4, more than two centuries after the 2nd A was ratified. Of course Heller's self-defense constitutionalism should protect true patriots, in defense of their government, to thwart revolters of the ilk of Brett and SPAM. The late Justice Scalia did not, in Heller, buy into their revolting 2nd A views.
 

This comment has been removed by the author.
 

"The most reasonable interpretation from the text, history, debates at the time and the structure of the Constitution is imho that it was meant to protect the state militias from the new federal government."

The state militias served as slave patrols. The Southern states needed a militia to keep their slaves under control. That was the actual motivation. And yes, the militia was always to be under some form of government control, whether state or federal (as the Constitution itself provides).

Getting back to initiatives and how they impact democracy -- the actual subject of the OP -- I don't rule out initiatives in all cases, just in most. I think they have some value for regulating the legislature in cases where it won't regulate itself, for example. But for purposes of making policy, initiatives are likely to be less useful than a legislature *in general*. The CA legislature, for example, didn't pass Prop 13, Prop 187, Prop 14, or any anti-gay marriage laws. The voters did.
 

SPAM, commenting on "our" Revolution, ignores that "we" won. But if "our" revolutionaries had lost, treason would have followed. Perhaps our Tweedledumb and Tweedledumber are still prepared to tilt at windmills, as least in their minds.
 

Mark:

As much as I don't like something like 187, the fact remains that the California voters were at the time to the right of the legislators on immigration and the job of the legislators is to implement what the voters want. If they don't, that's rule by elite, not democracy.

Prop 187 was struck down by the courts and also led to the registration of millions of Hispanic voters. But the idea that whst we should have instead is elite career politicians protected by incumbecy and gerrymandering who ignore the will if the voters? If you like that, you hate democracy.
 

Shag: In any event, let's recognize that UK gun controls over centuries have minimized deaths and injuries by the use of guns...SPAM, commenting on "our" Revolution, ignores that "we" won. But if "our" revolutionaries had lost, treason would have followed.

I would note the Irish Rebellion of 1798, inspired by our own revolution, failed for lack of military grade firearms under British law. Instead of surrendering in disgrace, Cornwallis slaughtered the Irish - rebels or not.
 

So in his 9"24 AM comment is SPAM warning us that he and his ilk have stocked up arsenals of "military grade firearms" in preparation for their revolting plans? ATF ALERT! Now what was that oath SPAM took to provide legal defenses for alleged drunks in rural CO?

SPAM of course ignores comparisons of gun deaths/injuries in America and the UK. In particular I'm not aware that Brexit has triggered the use of guns in the UK, at least so far.

By the Bybee [expletives deleted, despite Gina, although her views of MBS differ from sword dancer Tariff Man Trump], the Brits have come a long way from their impositions upon the Irish for centuries. But note that the Republic of Ireland has not opted out of the EU. Might Boris Johnson be the UK's new Cornwall - or just a corn hole?
 

I want to preserve this comment of SPAM in case he might delete it:

***

Shag:

Propaganda.

Totalitarians here and overseas are using the Russians as a scapegoat to blame for successful populist uprisings, See Trump, Brexit and now the Yellow Vest riots against green carbon taxes in France.
# posted by Blogger Bart DePalma : 3:56 PM

***

Consider SPAM's views on populism expressed in this comment and compare it to SPAM's efforts in support of the Cruz Canadacy during the 2016 Republican campaign when SPAM over and over and over again branded Trump as a fascist.

 

Apparently, the EU has no problem playing harball. Not only are they refusing further negotiations with Parliament, the EU has now decreed the UK can ignore their people and end Brexit.

https://news.sky.com/story/european-court-of-justice-rules-uk-can-unilaterally-revoke-article-50-and-halt-brexit-11576865
 

"That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

The much ignored subsequent line: "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes;"

Indeed, the DOI goes on to say that only after "a long train of abuses and usurpations...evinces a design to reduce them under absolute Despotism" is there revolution as a justifiable recourse.

"A "well-regulated" militia is one which is trained."

More than that, it also can mean well disciplined and controlled (via rules).

"Thus, the purpose of our Second Amendment is to deny government a monopoly on the use of force"

This is a ridiculous way to put it. The 2nd Amendment doesn't empower Batman or Green Arrow, what it does is protect state militias from federal disarmanant. The DOI doesn't revoke the 'monopoly of the use of force' of the police, it says that if the state the police work for is illegitimate then force is justified against that state (and its police).

 

"As much as I don't like something like 187, the fact remains that the California voters were at the time to the right of the legislators on immigration and the job of the legislators is to implement what the voters want."

Wholeheartedly agree. See the attempt by the Florida GOP to subvert the will of the people re: Amendment 4 as example of the principle being violated here in the US.
 

@Bart DePalma

"EU redistributes wealth from England to places like Scotland"

You bought into the Scotland is too weak, too poor, too stupid to manage its own affairs school of political hilarity? Scotland has quite a strong economy and it would be stronger if it wasn't distributing wealth to England. Compare Norway and Scotland. Most of the oil wealth in Scotland's waters has been squandered by the UK government since the 1970s. Oil aside the country is rich in natural resources. Most months 100% of the Scotland's electricity is generated by alternative energy and this has barely been tapped yet. Many of the food and drinks exports from UK are Scottish. And I could go on.

The really amusing thing related to subsidies is that unionist politicians and media are always accusing the Scots of being subsidy junkies. This is a gross misrepresentation of the economic relationship of the two countries and a rather offensive ethnic slur but Indyref and then Brexit has brought many of these to the fore. (Although the Irish in the Republic have had to endure more in the pig ignorance and ethnic slur department than the Scots during the course of Brexit.) Anyway, one of the amusing facts about subsidies is that in recent years EU subsidies intended for Scottish farmers have been purloined by the UK government and used as UK subsidies, all while accusing the Scots of being subsidy junkies. They have no shame.

England itself has a wealth distribution problem. Pointing the finger at the supposed welfare junkies in Scotland, moaning about the awful EU bureaucrats attempting to conquer Merry England where Napoleon and Hitler failed through a Euro Superstate (and its bendy banana regulations!) and ranting about the stupid Paddies in the Republic who have no clue that they would be better off as a British colony are all nice distractions from this rather nasty fact. The wealth in England is heavily concentrated in the southeast around London (it's where the money laundering happens). Many of the regions of England are impoverished and have been since the Thatcher years. At some point the British governing elite with their Eton ties and Oxford PPE degrees are going to run out of scapegoats for their decades of venality and incompetence.
 

"Pointing the finger at the supposed welfare junkies in Scotland, moaning about the awful EU bureaucrats attempting to conquer Merry England where Napoleon and Hitler failed through a Euro Superstate (and its bendy banana regulations!) and ranting about the stupid Paddies in the Republic who have no clue that they would be better off as a British colony are all nice distractions from this rather nasty fact. "

Indeed, this reminds me of many in the groups in the US such as veterans and farmers who have privileged places at the federal government trough squealing in anger about anyone else getting something from the trough.

US federal spending has, of course, increased the past couple of years. It's just the recipients who change.
 

Alan;

Scottish independence is their own affair. I was explaining their opposition to Brexit.

I would note no one seeking political independence would vote to stay in the EU.
 

"I would note no one seeking political independence would vote to stay in the EU."

Absurd. The colonies seeking political independence voted to become the US (under the Articles and the Constitution). People like Bart were caterwauling about both. Luckily our Founders had more sense.
 

Our Constitution does not include provisions for secession by a state or states. The EU does included provisions for a member state to exit the EU. The UK and the EU negotiated for many months on the terms of the UK exit. The UK had entered the EU well knowing of the provisions of exit. Those in favor of and those against Brexit were aware of the exit provisions of the EU. The deal negotiated by May has displeased many, including those in favor and against Brexit. Parliament has the final say. The EU has to be concerned with the security risks of EU member Republic of Ireland's border with the UK in the Brexit negotiations. As for the EU playing "hardball" in SPAM's terms, it was the EU court that provided a softball to the UK on Brexit by stating in effect that the UK is not prevented from remaining in the EU. Parliament can make the UK decision. Most likely it may result in the need for elections in the UK and voters can speak to Brexit via representative government.

A couple of years back we have have discussions on Sandy's posts/threads on secession here in America, including "negotiated" secessions. It's complicated, especially since the Constitution does not provided for it. The UK and other EU member nations voluntarily entered into the EU. These were not rushed decisions. There is some truth to "united we stand, divided we fall." We're seeing this with the political dysfunction in America. Did the UK Brexit in haste? It can't repent in leisure. That's for the Brits to decide. How long can an exited UK survive with the Scots and Northern Ireland unhappy with the exit (not to mention London's financial center)?
 

Mr. W:

Well-regulated as a military term of the time actually means to shoot accurately. The term has nothing to do with following regulations.

Further, the “right of the people” has nothing to do with state power to maintain organized militias, but rather to protect the larger unorganized militia / armed citizenry, which the laws of Congress recognized from the outset.
 

"Getting back to initiatives and how they impact democracy -- the actual subject of the OP"

Mark, I'm not sure there's been that much of a threadjack. I think the question has to be asked, when there is proof of substantial foreign meddling in an initiative, especially when involving illegalities, what does that do to the 'mandate' (I think there is one, you may not) that the initiative imposes (I guess most importantly on the legislature)?
 

Mr. W:

Precisely. Colonies seeking political independence left the UK. Amexit, if you prefer.
 

"Well-regulated as a military term of the time actually means to shoot accurately."

That's simply false. The word 'regulate' at the time meant 'regular, disciplined, restrained by rule." This is apparent from dictionaries of the time (Johnson's, which I've quoted here before), other parts of the Constitution's text, etc.

"the larger unorganized militia / armed citizenry, which the laws of Congress recognized from the outset."

Wrong also, the Constitution recognized that the militia would be a government organized thing (thus the Militia Act and the Militia Clause).

Bart is just straining, like all radicals, to have his political ideology 'read into' the Constitution regardless of text or historical understanding.

 

Shag:

The EU is a confederacy of partly sovereign nations.

The US is a sovereign nation.
 

"Amexit, if you prefer."

It's ridiculous to compare the American Revolution to Brexit, for so many reasons.
 

I viewed the threadjack as the 2A discussion. I agree with the rest of your 11:48 comment.
 

Regarding the 2A, a core concern from my reading was a select national force, particularly some sort of mercenary army as compared to a more civilian controlled militia. A "militia" would still be regulated and led by government officials (governors generally were heads of the militia).

The concern wasn't just present in slave states so I don't think the 2A was just some slave thing. As to state militia, the question of federal areas, including D.C., is interesting. See, e.g., the dissenting judge below in the Heller case.

The issue is not quite non-germane to the overall original question because the militia is a way for the people at large to have a role in government. See also, juries. In both cases, we have systems with overall government control where the people at large, not their representatives, have direct roles. The idea of local blacks being in the militia (recall the absence of a modern police force) keeping the peace in black communities comes to mind here.

I note that Mark said: "I think they have some value for regulating the legislature in cases where it won't regulate itself, for example." I think voting regulations could be applicable here, including avoiding disenfranchisement. The legislature there is self-interested. It also might apply as to dealing with gerrymandering, campaign finance laws and possible term limits. It is also a question on why at such and such a time the legislature was more liberal or conservative to a significant degree than the general public. There very well might be problems to be addressed there.

I don't know if there was some study made as to the general tenor as a whole (examples can be given in both directions; I also note a reference to judicial review, which fits into our democratic system as much as representative legislatures) long term about the responsiveness to the general will in regarding to popular initiatives. Various problems have been cited there as to them often being special interest affairs or in some other way a skewered expression of popular will.

They probably provide within limits some degree of a value to balance other governmental law making mechanisms. Anyway, if they are done to accomplish big things, they should be done carefully. This one didn't seem to be. Again, a lesson.
 

"I note that Mark said: "I think they have some value for regulating the legislature in cases where it won't regulate itself, for example." I think voting regulations could be applicable here, including avoiding disenfranchisement. The legislature there is self-interested. It also might apply as to dealing with gerrymandering, campaign finance laws and possible term limits."

Agreed.

I tend to think of democracy as similar to free markets. Free markets can work very well, but there are certain pre-conditions -- call them "meta-rules" -- which must be in place for them to actually create benefits. See, e.g., https://economistsview.typepad.com/economistsview/2007/02/markets_are_not.html and https://delong.typepad.com/sdj/2010/12/what-do-econ-1-students-need-to-remember-second-most-from-the-course.html

Similarly, there are "meta-rules" for the proper functioning of democracy, a long list of them in fact. Much of what those rules boil down to is that the process needs to *deliberative*. It has to be based on fact, not fantasy or lies. It has to provide enough time for the arguments to be fully explored. It has to be open and equal to those affected, whether directly or indirectly. It has to preserve the opportunity for future majority rule to change the outcome. Etc.

When those base conditions are lacking in a system, or in a particular election such as Brexit, we shouldn't treat the result as "democratic" any more than we should describe an economy which lacks the appropriate conditions a "free" market.
 

Well said Mark, as usual.
 

BD: "Well-regulated as a military term of the time actually means to shoot accurately."

Mr. W: That's simply false. The word 'regulate' at the time meant 'regular, disciplined, restrained by rule." This is apparent from dictionaries of the time (Johnson's, which I've quoted here before), other parts of the Constitution's text, etc.


The term is "well-regulated," not "regulate," and we are discussing its military use, not how Congress regulates commerce. I researched all of this in law school for a law review article long before Heller on how to apply the 2A as an individual right. I discovered "well-regulated" had a specific meaning when applied to the armies of the time. (As an aside, my progressive law review editor declined to publish because they had done a 2A article a couple years before and did not want to waste space on a "settled" topic. However, the article won the NRA law school writing contest, which paid a five grand prize.)

BD: "the larger unorganized militia / armed citizenry, which the laws of Congress recognized from the outset."

Mr. W: Wrong also, the Constitution recognized that the militia would be a government organized thing (thus the Militia Act and the Militia Clause).


Here is a clue. See how the law has treated the "unorganized militia."
 

@Bart DePalma

I think you are wrong to reduce Scottish opposition to Brexit to purely economic interests. I think in part you also misunderstand what the EU offers small countries. Compare Scotland in the union that is the United Kingdom to Ireland in the EU. The UK government in power does whatever it wants. It is elected by the much larger population in England and couldn't care less about Scotland and the bloody annoying Jocks. The Republic of Ireland, a similarly small Celtic country that took its leave of the UK, after centuries of submission, has in the Brexit negotiations been backed up by the rest of the EU. The British government hasn't come to terms with this. Being in the EU offers small countries clout and independence. If you are English the perspective is very different. The EU runs counter to your entire national mythology and is experienced as submission and loss.

Don't take my word for it. Here are three perspectives form an Englishman, a Scotsman and an Irishman:

The problem with the English: England doesn’t want to be just another member of a team

At last, the truth: Scotland is not and never has been in an equal partnership

Don’t blame the Irish: the Brexit chaos is all about England
 

Blogger Joe said...Regarding the 2A, a core concern from my reading was a select national force, particularly some sort of mercenary army as compared to a more civilian controlled militia. A "militia" would still be regulated and led by government officials (governors generally were heads of the militia).

The term "select militia" referred to organized government militias along the lines of today's National Guard.

The term "militia" is much broader and refers to the armed citizenry which the government can call up and train.
 

Mark: I tend to think of democracy as similar to free markets.

Excellent analogy.

A free market is the most perfect democracy humanity has invented because individual businesses and consumers sell and buy what they choose, rather than following the direction of a majority of their fellow citizens.
 

Alan: I think you are wrong to reduce Scottish opposition to Brexit to purely economic interests. I think in part you also misunderstand what the EU offers small countries. Compare Scotland in the union that is the United Kingdom to Ireland in the EU. The UK government in power does whatever it wants. It is elected by the much larger population in England and couldn't care less about Scotland and the bloody annoying Jocks.

How does making Scotland a vassal state of the EU in Brussels (dominated by France and Germany), rather than the Brits in London, improve Scottish self-determination?
 

"Similarly, there are "meta-rules" for the proper functioning of democracy, a long list of them in fact. Much of what those rules boil down to is that the process needs to *deliberative*. It has to be based on fact, not fantasy or lies"

All government is based on fantasy and lies. Every government in human history has lied to the public, and every democracy has lied to voters. Every important politician in American history has lied, quite a bit.

If your definition of democracy is "we are going to override the voters every time there are lies", then you have just provided the formula for tyranny and ignoring the voters.

Joe's comment at 12:03pm is quite good. Initiative/referendum/reform is an important safety valve because without them, for all sorts of structural reasons that might in theory be fixable but never actually get fixed, representatives get far, far away from the voters. It happens a lot.

Now if the voters do something really awful, well, we have judicial review for that. But voters are going to be lied to, and they still need to be able to vote. And there's no proof that voters being lied to and voting on a ballot proposition are any worse than voters being lied to and voting for a candidate.
 

Now, on the Second Amendment issue, there were two comments upthread that I want to highlight.

First, "regulated" doesn't just mean accurate shooting. It means a whole bunch of things. Now, the NRA may be RIGHT that it doesn't mean all modern gun control regulations. There does seem to be a usage of "regulated" with respect to military units back in the 18th Century that is narrower than that. But it still meant disciplined, trained, organized, ready to conduct itself as a unified fighting force.

Now, Bart would say, the problem with that is the Second Amendment applied to all persons, not just those in the organized militia. Quite so! There was an unorganized militia. We know that because the Militia Act defined it as all male adult citizens.

But here's the thing, and this gets back to the other good comment. Go back and read the Constitution. It has several clauses dealing with the militia. And the upshot is, the government has the power to organize the militia. To train it. To order it into service.

And this gets back to Switzerland. You see, the Constitution- the charter of this country- does not talk at all about armed rebellions. Remember, the Declaration of Independence is not law and is not a governmental charter. The Constitution says that anyone who engages in an armed rebellion can be tried for treason. That's what it says about armed rebellions. And it says that yes, a well regulated militia is necessary to defend a free state, and that the militia can be armed, trained, and called into service by the government. And that's the context under which, yes, you have a right to keep and bear arms.

So sure, the militia CAN be unorganized, and if it is, the Second Amendment preserves your right to keep and bear arms. But if the government decides to organize it, it can definitely order you to employ those arms that you keep and bear by virtue of a constitutional right, to protect the government and its interests, and then try you for treason if you turn them against the government.

So the wording of the Constitution emphatically rejects the "Second Amendment protects a right of armed revolution" argument.
 

"How does making Scotland a vassal state of the EU in Brussels (dominated by France and Germany), rather than the Brits in London, improve Scottish self-determination?"

I think I already explained that above. Your terms are loaded. You are assuming the English perspective on this, that is the perspective propagated by The Sun, Daily Mail, Telegraph and BBC. Sorry, as a Scot I don't share their post-Empire blues; their continued and unhealthy obsession with Dunkirk, the Battle of Britain and WWII, and their paranoia about Europe.

It is maybe no surprise that an American would take the English perspective. Many Americans suffer the same psychosis. As Boyle writes in his article I link to above:
The trauma of lost exceptionalism, the psychic legacy of empire, haunts the English to the present day, in the illusion that their country needs to find itself a global role. Of course it is an illusion: do roughly comparable countries such as Germany or Italy or Japan have such a need? Putin’s Russia does, but Russia suffers from the same trauma of imperial amputation, and there are traces of it too in the French defence of worldwide francophonie. The traumatic loss is all but explicitly acknowledged in the repeated demand that around the world ‘Britain’ should ‘punch above its weight’ – why not be content with your size and weight, live within your means, and cultivate your garden, rather than make yourself ridiculous like little Vladimir fanatically developing his biceps in the corner of the gym?
You haven't quite lost your dominant place in the world, yet. You just live in fear of it. Having an American president who got elected using the slogan "Make America Great Again" suggests you have some issues.
 

Alan:

Self determination is Scotland governing itself and that can only be achieved through independence. Bully for the Scots and their modern William Wallaces if they seek such independence and self-determination.

Regardless how it feels about the rest of Europe, if Scotland is a member of the EU, they will follow the blizzard of laws and regulations issued from Brussels, which they will have little or no say in crafting. This is the antithesis of self determination.
 

I see we have another front on free markets. May I suggest you read the work of Scotland's most famous moral philosopher on 'free' markets, the one whose name is frequently taken in vain by economists associated with the Chicago School, politicians, and 'experts' in various obnoxious neoliberal think tanks.
 

Bart:

Why isn't it up to Scotland, the UK, and the EU, to decide as to what the political arrangements of Scotland are?

I mean, if the Scots are unhappy with the decision, then you have a secession crisis. And the contours of such things are well-known.

But if the Scots are happy in the EU, how can you possibly say, sitting in Colorado and with no dog in the fight, that this is a better or worse position for them than if they are outside of it and in a Brexited UK, or as an independent country? Isn't that something that Scots themselves are going to understand better than you (or I)?
 

Dilan: First, "regulated" doesn't just mean accurate shooting. It means a whole bunch of things. Now, the NRA may be RIGHT that it doesn't mean all modern gun control regulations. There does seem to be a usage of "regulated" with respect to military units back in the 18th Century that is narrower than that. But it still meant disciplined, trained, organized, ready to conduct itself as a unified fighting force.

We basically agree. I noted two sources above which defined "well-regulated" used in this context:

(1) The term in isolation when applied to the military means to shoot properly. Marksmanship is achieved through organization and discipline.

(2) When read in para materia with the Militia Clause, this meaning is confirmed. The MC grants Congress the power to call up the militia (the people who enjoy the right to keep and bear arms), organize and discipline them.

So, it makes sense to read the prefatory clause of the 2A as an organized and disciplined Militia, being necessary to the security of a free State.

So sure, the militia CAN be unorganized, and if it is, the Second Amendment preserves your right to keep and bear arms. But if the government decides to organize it, it can definitely order you to employ those arms that you keep and bear by virtue of a constitutional right, to protect the government and its interests, and then try you for treason if you turn them against the government.

All correct. Now, take the next logical step.

Arms are the tools of force. An armed citizenry by definition means the government does not have a monopoly on the use of force. The government is depending on the willingness of the armed citizenry to muster with their arms for government service, rather than turn their arms against the government in revolution. So long as they retain the tools of force, that decision lies with the people.
 

If you are bringing up William Wallace this exchange probably just jumped the shark. Thank god you didn't mention that ridiculous Hollywood movie with the xenophobic Australian, the movie that shall not be named. Close shave.

Self-determination? This is where we connect with free markets. Self-determination is an illusion. Markets work because they exist in an institutional context. They exist because of regulations. Countries like people are not islands. They co-operate. Read Adam Smith! Regulation is what makes markets free. Adam Smith treated it as an ideal. Some places and times get closer to the ideal than others. Most of Wealth is about how most populations get screwed over by elites because they twist regulation to their own private ends. In the Britain of his time, the prime example was the collusion of the political elites with the East India Company, you know the one whose tea got chucked into Boston harbor. He was a little pessimistic that that would ever change much, certainly in Britain. He was right on that one. I think if we were to resurrect him he might be a bit disappointed in America but maybe not surprised.

The Brits are about to discover the importance of regulations. For years they have moaned about EU regulation. Well, all that regulation makes things frictionless or at least as frictionless as was possible. If they crash out on a no-deal Brexit the supply chains will stop working, lorries will be backed up from Dover to London, the planes will stop flying, and much more fun stuff.
 

Dilan:

The Scots can do what they damned well please. None of my family is Scottish and I don't have a dog in their fight.

However, even this Italian/Irish/German-American can observe Scotland wishes to stay in the EU for the money and is willing to sacrifice their self-determination for that money.
 

"First, "regulated" doesn't just mean accurate shooting. It means a whole bunch of things. Now, the NRA may be RIGHT that it doesn't mean all modern gun control regulations. There does seem to be a usage of "regulated" with respect to military units back in the 18th Century that is narrower than that. But it still meant disciplined, trained, organized, ready to conduct itself as a unified fighting force."

Absolutely, could scarcely agree more. In a 2nd amendment context, "well regulated" doesn't mean just accurate marksmanship. It means well equipped, well trained, good leadership. ALL the things that lead to military effectiveness.

I used to remark back in the mid 90's, that if the government had really wanted to deal with the militia movement, it would have simply said, "Fine, you're militias. That means we get to appoint your leaders. Report every Saturday for training." It would have been on firm constitutional grounds doing that.

But, again, it's the people who have the right, and the militia that are well regulated, and it wasn't just on a lark that they used different terms here. A key fear behind the 2nd amendment was of a "select" militia, composed of only people the government could rely upon to do its bidding regardless of what that bidding might be. The practical equivalent of a standing army.

The right is reserved to the people, not the militia, in order that the right can not be extinguished by the simple expedient of not organizing a militia.

The relevant right is not the right to armed revolt, which as I pointed out above, no government that ought to be revolted against would ever respect.

It is the right to be capable of armed revolt.
 

"The government is depending on the willingness of the armed citizenry to muster with their arms for government service, rather than turn their arms against the government in revolution."

No Bart, the government is ordering it, and arms are instead turned against the government, the government will imprison or execute you.

And I should add, short of that. Nobody-- not even conservatives and NRA types-- doubts the power of the state governments (and the federal government so long as there is a jurisdictional hook) to imprison people for committing violent crimes. That's the government monopolizing the use of force. Which it still does despite the Second Amendment.

You are now confusing the right to keep and bear arms (protected by the Constitution) and the right to use them (not protected at all, except perhaps in the limited situation of certain types of self-defense).

Now, obviously, if treason succeeds, none dare call it treason. But that's true in any form of government. It has nothing to do with the Second Amendment.
 

"I used to remark back in the mid 90's, that if the government had really wanted to deal with the militia movement, it would have simply said, "Fine, you're militias. That means we get to appoint your leaders. Report every Saturday for training." It would have been on firm constitutional grounds doing that."

I actually think there is a strong argument that this is exactly what the Constitution contemplates. As I said upthread, Switzerland.

But where you go off the rails is here:

"It is the right to be capable of armed revolt."

The militia clauses, if taken seriously, can make civilians almost completely incapable of armed revolt. As well as the treason clause. And the power of both state and federal government to make a bunch of violent actions into crimes with long prison sentences.

And that's before we even get to what advances in weaponry have done to any possibility of rebellion.

And I don't see how this could be otherwise. The government is not going to respond to serious threats to its overthrow by doing nothing and saying "go ahead". Now, sure, I can defend a gun rights position that says that current forms of gun control are unconstitutional system, but I could also sit down and design a fully constitutional militia system that would make a rebellion completely impossible in practice.

And honestly, Brett, this is why most gun rights advocates aren't as honest as you are being about the militia clauses and what they permit, and instead argue a natural, preexisting right to arm themselves that the militia clauses could in no way modify, grounded in libertarian theory and having nothing to do with the collective defense of the country. The last thing they want is a Swiss system where you have a REGULATED, DISCIPLINED armed populace. They just want absolute freedom.
 

Alan: Self-determination? This is where we connect with free markets. Self-determination is an illusion. Markets work because they exist in an institutional context. They exist because of regulations.

Only three types of law are required for a free market: (1) property rights to the goods and services we produce and trade; (2) contract rights to enforce the trades; and (3) criminal law punishing the various species of theft and fraud. These laws enable businesses and consumers to trade as they please so long as they do not harm others. The sum of all individual production and trade decisions makes up the market.

Most of Wealth is about how most populations get screwed over by elites because they twist regulation to their own private ends.

True. The Founders attempted to achieve Smith's ideal through the absence of regulation by drafting a Constitution which did not grant Congress the power to and generally forbade the states from directing the economy to favor the politically connected. The original United States under the Articles of Confederation nearly became a failed state precisely because of this problem.
 

SPAM as a right-winger in lockstep with "Tariff Man" Trump does have a dog in the fight: Right-wing populism. MAGA needs a weakened EU in the view of Trump and his base of the "Forgotten."

By the Bybee [expletives deleted, despite Gina, although she disagrees with Trump on MBS], consider the impact of Shay's Rebellion on the Framers during the Constitutional Convention.

Query: Is SPAM's "armed citizenry" coordinated or regulated to behave in some public good? Or are many to them just plain libertarians, sovereign in their belief that they are right and good? Does the govern,emt dare tp attempt to "muster" the owners of more than 300 million guns of various kinds to train for government service? Reinstate the draft and bring your own weapons?
 

BD: "The government is depending on the willingness of the armed citizenry to muster with their arms for government service, rather than turn their arms against the government in revolution."

Dilan: No Bart, the government is ordering it, and arms are instead turned against the government, the government will imprison or execute you.


Or fall trying.

I have served as an infantry officer and I am a student of military history. No government in human history has ever triumphed over a well armed citizenry. Our military would have no hope of winning a revolution against even a third of our citizenry, which was about the level of support enjoyed by American revolutionaries against Britain.

Its all a matter space and numbers.

In a direct engagement, our military can easily win over five-plus times the number of armed citizens. However, an armed revolution will not be a direct engagement on some small battlefield.

Our military only fields a couple hundred thousand combat arms troops. Everyone else is in support of this "tip of the spear." Under ideal circumstances, these men and women could might be able to control a handful of our larger cities, leaving the rest of the nation under the effective control of the millions of armed citizens. If the military moved from one city to another, the departed city would fall under rebel control.

During the Revolution, the British did not have the troops to occupy more than a small fraction of the thirteen colonies. The current United States is several times larger and its citizenry exponentially larger than those colonies and colonists.

No government or military can long survive under those conditions.

 

"The militia clauses, if taken seriously, can make civilians almost completely incapable of armed revolt. As well as the treason clause. And the power of both state and federal government to make a bunch of violent actions into crimes with long prison sentences."

You've got an unstated premise there: That the revolt is unpopular.

Unpopular revolts will fail. Unpopular revolts are supposed to fail.

You must imagine here a scenario where the government is doing something really unpopular. Something that outrages the general populace, beyond the limits of endurance. THAT is the sort of situation where the 2nd amendment is supposed to make a popular revolt possible. Not cases where a minority are miffed.

In such a situation, the government simply lacks the resources to jail everybody who revolts. Even totalitarian governments typically lack those resources, they depend on secret police to pick off anybody who might organize a revolt before it can get going, they depend on propaganda to make each disaffected person think they are the exception, rather than the rule.

The 2nd amendment gives the people the means to revolt, the 1st amendment the right to discuss doing it, but none of this is any use if too few people agree that it is worth doing.
 

" No government in human history has ever triumphed over a well armed citizenry. "

Really Bart? Because I thought of one just off the top of my head within five seconds.

Saddam was in power for decades in Iraq. Quite unpopular. A terrible tyrant.

And...

There was an enormous amount of private gun ownership in Iraq.

https://www.nytimes.com/2006/04/03/world/africa/03iht-guns.html

I am sure there are others.
 

"The 2nd amendment gives the people the means to revolt, the 1st amendment the right to discuss doing it,"

The second part of this isn't any more true than the first part.

It certainly isn't true as a matter of original understanding- a Congress full of framers passed the Sedition Act.

It also isn't even true as a matter of speech protective Warren Court law. It's quite clear that speech that is specifically intended to foment a revolution and likely to do so is unprotected under the First Amendment. Brandenburg v. Ohio is 100 percent clear on that.
 

"The term is "well-regulated," not "regulate," and we are discussing its military use"

Like every political radical that would like to ignore the original plain understanding of terms in the text of the Constitution in favor of their modern political philosophy, Bart scrambles to the 'term of art' thicket to hide. Unfortunately for the scrambling rabbit, the Constitution uses the term several times (regulate [ed], [tion], etc.,), and all of them are congruent with the textbook definition at the time of 'to control by rule.' Like every 'progressive' 'activist' justice he's ever condemned, Bart ignores this fact to get the result he's most happy with. Every accusation is a confession with him.
 

Mista:

That's somewhat incomplete. There are definitely some contemporaneous discussions and Second Amendment antecedents that use "regulated" to mean a set of concepts such as disciplined, trained, prepared, readied, etc.

The mistake gun rights types often make is to then say "so that just means good marksmanship". No, it means the entire set of regulations, training, preparation, and safety requirements, and military discipline that may be lawfully exercised by militia commanders apply to the militia contemplated by the Second Amendment.

Now I don't claim you have to use this definition- I'm not an originalist. Perfectly OK to say "it's 2018, let's use the modern meaning of 'well-regulated'". But the argument that it's somewhat narrower than "any rule" or "any reasonable rule" is not without historical support. I just don't think it gets the gun rights crowd anywhere near where THEY want to take it.
 

"It means well equipped, well trained, good leadership"

The Constitution uses the term several times, and every time it is congruent with the dictionary definition of the time of 'controlled by rules.'

Brett's reading is like those progressives who say 'well, sometimes people at the time used 'commerce' to mean 'social intercourse' therefore the interstate commerce act can regulate all kinds of interstate interactions.

They are a mirror image of what they decry.
 

BD: "No government in human history has ever triumphed over a well armed citizenry. "

Dilan: Really Bart?


Really, really.

Because I thought of one just off the top of my head within five seconds. Saddam was in power for decades in Iraq. Quite unpopular. A terrible tyrant. And... There was an enormous amount of private gun ownership in Iraq.

Think again.

The firearm ownership was concentrated among Saddam's Sunni supporters. When my unit moved into the Shia south during the Persian Gulf War ceasefire, the villages were completely disarmed and the Republican Guard were slaughtering the Shia civilians just north of our lines.
 

No, Dilan.

The Constitution uses the term 'regulate' in some form about a dozen times. Every time it's congruent with the dictionary definition at the time (Samuel Johnson's) of 'to control by rule.'

Now, if you want to say the 2nd Amendment use is different and special in context, ok, but then you've already left the area that the Barts and Brett are constantly crying about, which is to interpret the law 'plainly as written.' If patriotism is the last refuge of the scoundrel then 'oh, this usage out of a dozen is different in a way that satisfies my policy preferences' is the refuge of a constitutional scoundrel.
 

Bart, your belief that Saddam did not face significant opposition among Sunnis is ridiculous. He had more support there, but he also had tons of opposition.

"Nobody ever successfully oppressed an armed populace" is just a ridiculous thing for anyone to say. Many developing countries are basically arms bazaars, and yet dictatorial governments often maintain control.

You just believe things because the gun rights movement has to believe them. It's much harder to confront the reality that on the one hand, plenty of societies we would consider free have very limited gun rights, and on other hand, plenty of dictatorships and tyrannies have lots of people who own guns.
 

"The 2nd amendment gives the people the means to revolt"

This is fantastical nonsense. It protected the state militias from the federal government (just as the 1st amendment protected the state churches, or lack thereof, from the federal government).
 

""The 2nd amendment gives the people the means to revolt, the 1st amendment the right to discuss doing it,"

The second part of this isn't any more true than the first part."

Yes, actually it is. Are we not here discussing doing it, and nobody is busting in my door?

You'd actually cite the Alien and Sedition acts here, as evidence of the bounds of the 1st amendment?

You don't forbid evils you think nobody will be tempted to, Dilan. The Alien and Sedition acts were in violation of the 1st amendment, and widely condemned as such at the time. (You are free, of course, to assert that Madison didn't know what the 1st amendment really meant.)

I think they demonstrate that the Federalists' claim to not want a bill of rights merely because it would be redundant might have been more than a bit disingenuous. Based on the Acts, I think maybe they didn't want one because it would get in their way.
 

"This is fantastical nonsense. It protected the state militias from the federal government (just as the 1st amendment protected the state churches, or lack thereof, from the federal government)."

Always foes of the right to keep and bear arms pretend that word "people" isn't in there. The 2nd amendment protected the right of the PEOPLE, not the militia, to keep and bear arms.
 

Dilan: "Nobody ever successfully oppressed an armed populace" is just a ridiculous thing for anyone to say."

No one here posted that. I noted: "No government in human history has ever triumphed over a well armed citizenry."

We are discussing a revolutionary war between a well armed citizenry and a government military. Such a government can get in a great deal of oppression before it falls.

Many developing countries are basically arms bazaars, and yet dictatorial governments often maintain control.

You are repeating the same error.

Arming the citizenry provides it with the option of armed revolution. Whether they take that option is up to them.

In your cases, arming supporters and beneficiaries of a tyrant is generally not an antidote to tyranny because the armed population have no reason to revolt.


 

Mista:

It isn't that easy. The language of the Second Amendment was taken from the Virginia Statute on Rights: "a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state". This suggests that the usage was closer to some sort of notion of training and regimentation, rather than a broader conception of regulation.

And you have Hamilton, no fan of the militias (and probably not much of a fan of the Second Amendment), describing them in Federalist 29: "To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss." Once again, this suggests that a "well-regulated militia" suggests military drills and the like.

Now, none of this is dispositive. You will notice I am not adopting the argument that some NRA types make where they pretend nobody used "regulate" in its modern sense back then. I don't think that is true. But what is true is that people who were talking about militias and their relationship to the right to keep and bear arms very possibly were talking about well-armed, disciplined, trained, military units comprised of citizens as opposed to rag-tag, undisciplined, dangerous irregulars or rebels.

As I said, though, where that gets you is Switzerland- the notion of a disciplined, trained armed populace keeping and bearing arms sufficient to protect the free state-- which is really the opposite of the libertarian paradise that gun enthusiasts seem to want.
 

For those who might be interested in UK constitutional law as it relates to Brexit: on Thursday the UK Supreme Court is issuing its judgment on THE UK WITHDRAWAL FROM THE EUROPEAN UNION (LEGAL CONTINUITY) (SCOTLAND) BILL – A Reference by the Attorney General and the Advocate General for Scotland. The case is discussed here: Is the UK-Scotland Supreme Court case the start of a new phase of constitutional conflict?

This can only add to what has already been quite an entertaining week in the Brexit saga: ECJ ruling on the Article 50 case on Monday, the PM bottling the meaningful parliamentary vote, an embarrassing 'renegotiation' tour of European capitals, and more rumors that the Tories have finally decided to assassinate their own leader in favor Boris, Davis or some other Brexit fantasist. Just when you think it can't get more demented, it does.
 

"You'd actually cite the Alien and Sedition acts here, as evidence of the bounds of the 1st amendment? "

No Brett, I am not an originalist.

But the Sedition Act is great evidence of what the framers thought the First Amendment meant.

I think Brandenburg is an excellent interpretation of what the First Amendment means when it comes to seditious speech. And what it means is if you are plotting to overthrow the government and your speech has a significant likelihood of leading to imminent violence, your speech isn't protected. There's no First Amendment right to conspire to imminently overthrow the government.

"The Constitution is not a suicide pact" is an overused phrase, but it certainly applies here.
 

I think it's better evidence of what the anti-Federalists feared the Federalists might do, that they were so insistent on a bill of rights.
 

Brett, even the folks who opposed the Sedition Act did not claim the First Amendment protected speech intended to and likely to result in the overthrow of the government through violence.

Rather, the claim was the statute was overbroad and criminalized criticism of the government.

No serious First Amendment scholar or commentator or court has ever taken the position that actually plotting the overthrow of the government by force is constitutionally protected.
 

"The 2nd amendment gives the people the means to revolt, the 1st amendment the right to discuss doing it,"

I suppose the distinction between "discussing" and "plotting" strikes you as a bit tenuous, but I understand it.

Yes, planning an imminent assault on the government is no more protected than the assault itself, but the 1st amendment still protects much short of that which totalitarian states find they must prohibit for their own protection.

The Constitution protect the means of revolt, not revolt itself, and in so doing provides a guide to when revolt might be justified: When the government sets out to make it impossible.

Because the government that sets out to make revolt impossible is a government which knows it will be provoking it, and wants to assure it's victory rather than avoid the provocation.
 

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I wonder if the Brits are concerned that Americans commenting on Gerard's Brexit post are talking about the 2nd A as a possible means of resolving the Brits Brexit.
 

Wow great post.

review berbagai hal menarik
 

@Bart DePalma

A market and your three laws, do not a society make. And markets, free or otherwise, do not exist outside society. A society has a history, culture, politics, institutions...Markets do not exist outside or independently of such, much as economists would like to fantasize that they do. But as you say, follow the money. They are paid very well for the nonsense they spout.

What I understand to be one of the key areas of thought that the founders took from Smith and Hume was the problem of factionalism and their thoughts on how it might be contained. Madison would have been well-schooled in both having studied under Witherspoon before he wrote Federalist 10 and 51. Neither Smith nor Hume were prone to Utopianism, left or right. They were sober thinkers about human nature, human relations and what's possible. There's no magic solution. In any complex society there's going to be inequality and some groups are going to make the most of their advantages to the determent of others. If you are lucky you live in a society where there are institutions strong enough to limit factionalism and everyone does well enough but some times these things decay. If you are unlucky, you end up in a police state or a revolution. Smith would have been loathed to follow the latter course but he did not rule it out:
He is not a citizen who is not disposed to respect the laws and to obey the civil magistrate; and he is certainly not a good citizen who does not wish to promote, by every means in his power, the welfare of the whole society of his fellow-citizens....in times of public discontent, faction, and disorder, those two different principles may draw different ways, and even a wise man may be disposed to think some alteration necessary in that constitution or form of government, which, in its actual condition, appears plainly unable to maintain the public tranquillity. In such cases, however, it often requires, perhaps, the highest effort of political wisdom to determine when a real patriot ought to support and endeavour to re-establish the authority of the old system, and when he ought to give way to the more daring, but often dangerous spirit of innovation.
But Americans know all about the dangerous spirit on innovation.
 

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Nice article
http://didel.csow.net
 

"The 2nd amendment protected the right of the PEOPLE, not the militia, to keep and bear arms."

That's because at the time the people constituted the militia.


 

"But what is true is that people who were talking about militias and their relationship to the right to keep and bear arms very possibly were talking about well-armed, disciplined, trained, military units comprised of citizens as opposed to rag-tag, undisciplined, dangerous irregulars or rebels."

I don't disagree with this, I just think it's congruent with many of the kinds of regulation (in the sense I'm using it) that are debated today. If you've been on a military base you know that they often have rules (regulations) on who can firearms on them, how they are to be stored, etc., that are part of their mission of running a well armed, disciplined, trained military unit.
 

Militias were collectives of, from and for the People, not a gang of anarcho-libertarians. "Well regulated" did not refer to the Militia diet.
 

Alan's Adam Smith quote at 10:57 PM suggests that Smith was not a libertarian, at least surely of the anarcho variety:

" ... and he is certainly not a good citizen who does not wish to promote, by every means in his power, the welfare of the whole society of his fellow-citizens...."

Libertarians are "randy."
 

Mr. W: If you've been on a military base you know that they often have rules (regulations) on who can firearms on them, how they are to be stored, etc., that are part of their mission of running a well armed, disciplined, trained military unit.

In the military, you check many of your basic liberties at the door of the induction center.
 

Shag: Militias were collectives of, from and for the People, not a gang of anarcho-libertarians

No military unit - government or revolutionary - is a collection of individuals.

An army is a team.
 

Adam Smith: " ... and he is certainly not a good citizen who does not wish to promote, by every means in his power, the welfare of the whole society of his fellow-citizens...."

And the best mechanisms for accomplishing this are freely entered into faith, free markets and charity.
 

So, is SPAM at 9:38 AM with his:

"In the military, you check many of your basic liberties at the door of the induction center."

suggesting that those in the Militia back when checked their basic liberties in joining the Militia for the welfare of the People? What basic liberties did SPAM check? Serving in the military requires checking basic liberties? The US military fights to preserve liberties by having its members check their basic liberties? Is there a provision in the Constitution in this regard? Do members of the unregulated militia (aka anarcho-libertarians) check their basic liberties as well? We must check our liberties to save our liberties?
 

Shag:

The unorganized militia / armed citizenry are not a military unit. The militia becomes a military unit when it is called up, organized and disciplined.

When you serve in the military, you have no freedoms of speech, to keep and carry arms, to due process concerning the imposition of basic military discipline, to personal property, to travel or to lodging. The military is the closest thing to the communal society you would like to impose on everyone.

What does the Constitution say about this? You may voluntarily surrender any right and do so when you volunteer for military service. Where things get interesting under the Constitution is the conflict between Congress's power to involuntarily call up the militia and the prohibition against involuntary servitude.

 

"I don't disagree with this, I just think it's congruent with many of the kinds of regulation (in the sense I'm using it) that are debated today. If you've been on a military base you know that they often have rules (regulations) on who can firearms on them, how they are to be stored, etc., that are part of their mission of running a well armed, disciplined, trained military unit. "

Absolutely. If I were trying to formulate a Second Amendment test, controls that are analogous to those imposed on militia members would be constitutional, those that are not would not be. I think that gets at the spirit of the thing.

And many controls, as you note, would be constitutional under such a test.

"Where things get interesting under the Constitution is the conflict between Congress's power to involuntarily call up the militia and the prohibition against involuntary servitude."

They actually don't, because we have a century of precedent that the 13th Amendment does not prohibit involuntary military service.

Which makes sense because the purpose of the provision had nothing to do with restricting the government's power to raise an army or call up a militia. It was not about calling people into national service, but about binding people to personal service to individuals.
 

BD: "Where things get interesting under the Constitution is the conflict between Congress's power to involuntarily call up the militia and the prohibition against involuntary servitude."

Dilan: They actually don't, because we have a century of precedent that the 13th Amendment does not prohibit involuntary military service.


I am not a fan of stare decisis when applied to the Constitution.

When I speak of what the Constitution requires, I always cite the document as written. To the extent their holdings are contrary to the Constitution as written, previous case law should be not be granted presidential value.
 

The real question is, do the laws advance the aim of the 2nd amendment, or oppose it?

The aim was an armed populace, from which a militia already armed and practiced with those arms could be raised. Any law that seeks to keep law abiding citizens from possessing arms suitable for militia purposes, military arms, is a law that seeks to frustrate the purpose of the 2nd amendment, not advance it.
 

What are the " ... arms suitable for militia purposes, military arms, ... " that Brett references in his 10:34 AM comment? Does this change over time with technology advances? Perhaps Brett could describe the arms in his arsenal that he thinks qualify. It took SCOTUS over 200 hundred years in Heller (2008, 5-4) to come up with certain arms in the home for self defense, unrelated to a militia. Perhaps SCOTUS has extended this to "stun guns" by the backdoor. How about the ban on machine guns that goes back several decades? Did Congress frustrate the purpose of the 2nd A?

By the Bybee [expletives deleted, despite Gina, although she disagrees with Trump on MBS], SPAM's claims of being a textualist have long eroded.
 

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