Let the Golden Age End

by publius

If I were the plaintiffs in the Heller Second Amendment case, I would file an amicus brief with nothing but the HBO John Adams mini-series attached. Looking back to 18th century Boston, it’s much easier to see how guns and militias provided important checks on government overreach. The problem, though, is that the colonial era has passed. The expansive gun rights of that era would have far different effects in post-industrial urban society.

And that leads to one of my broader criticisms of American conservatism -- from the Progressive era on through to today. Certain strands of American conservative thought have never quite come to terms with the realities of modern life -- and more specifically, with the shift to industrialization and urbanization. The failure to look at modernity squarely in the face is particularly evident in law, but extends to non-legal contexts as well. I’ll start with the law though.

To repeat, the broader point is that several strands of conservative jurisprudence seem to assume a world that doesn’t exist anymore. Specifically, they assume a world where urbanization and industrialization hasn’t happened.

The Heller gun case provides a perfect example. Personally, I think the Second Amendment is textually indeterminate – i.e., the text could plausibly support either a collective or individual-based right. For that reason, parsing commas in this context is rather pointless. If there are two equally plausible textual readings, then the question should shift to policy – what should we do? What are the consequences of selecting one reading over the other?

The answer, I think, turns on the type of place you live in. If your world is 18th century Massachusetts, then broad gun rights make a lot of sense. If your world is a densely-populated housing project in the Bronx, then broad gun rights make much less sense. Indeed, they create very dangerous environments. And if your world is rural Montana, then the policy rationale shifts back the other way. Given these variations, it seems like the obvious answer is to defer to legislatures (which requires a more collective view). The elected leaders of Montana can do what they want, while DC can do what it wants. And long as Congress doesn't ban militias, we're all good.

The broader point, though, is that the analysis should acknowledge changing conditions. Extreme gun rights advocates like to pretend we all live in John Adams’ world. In that world, millions of complete strangers don’t live right on top of each. There, militias actually do further liberty. In our world, however, things are different. Millions of strangers are in fact clustered together. In our world, nuclear-powered industrialized armies have far more formidable weapons than muskets and cannons.

To be clear, I’m not saying we should ban guns. I’m just saying the Second Amendment is an artifact from a different era, and that its artifact-ness should influence our reading of it. More specifically, the fact that it’s a relic of the musket era should, at the least, allow modern legislatures some leeway in interpreting it.

To move beyond guns, the commerce clause is another area whether the realities of modern life aren’t exactly reckoned with. If, for instance, Justice Thomas had his way, the Court could impose rather drastic restrictions on Congress. Indeed, it’s even possible that Thomas’s reading would find legislation like the Clean Air Act – or even agencies like the EPA – to be unconstitutional. As any first-year conlaw student knows, these opinions aren’t new. They trace back at least to the New Deal.

Other than its border-line insane practical recklessness, what bothers me about Thomas’s restricted commerce clause is its failure to account for the needs of modern post-industrial life. In a small-town world without global economic integration, then maybe we could count on little “r” republican virtue to ensure that people don’t pollute, or that old people don’t starve or whatever.

But in a modern world, we can’t. States face collective actions problems and races to the bottom, and simply can’t be counted on to provide meaningful redistribution or sufficient environmental protections. The national administrative state wasn’t a tyranny forced upon the public – it was a response to the needs of an urban, industrialized country of strangers.

Moving out of law, the reliance on family and community structures to pick up the slack just isn’t realistic. For instance, in Social Security debates, you hear some conservatives argue that we should rely more heavily on charity and family structures. Indeed, Social Security is even seen as an attack on these institutions.

Social Security, however, is a response to the failure of these institutions in a modern urbanized society. Again, we don’t live in 18th century Boston. We live in a Eleanor Rigby world where families are scattered, where people don’t know their neighbors, and where old-time community networks just don’t exist (or at least nowhere near the extent they used to, if they even existed then). And as for charity, the idea that it alone could replace a system of coercive taxes and universally administered distribution is just silly.

To be blunt, ending Social Security means that some elderly people will starve – or at the very least will live in extreme poverty, just like they used to. Today, by contrast, people don’t really starve in America anymore – and this abomination is one of the more dreadful tyrannies of the New Deal and Great Society.

I’m sure there are other examples. And of course, many conservatives hold positions that don't rely on visions of an idealized past golden era lost in a fallen corrupted world. Conservative thought is diverse and incorporates many strands. But in some of these strands – ones we’ve seen from the New Deal up through Heller – conservatives are unwilling to fully accept that post-industrialized urban society has specific needs that only government can meet.

UPDATE: Feddie responds here. He echoes one of my gripes with conservative jurisprudence -- specifically, this whole bit about how the Constitution is "static" and we should deal with it. But that's ducking the question really. Let's assume for the sake of argument that the meaning is "static" - that still doesn't address the indeterminacy problem. A text could have a static meaning in that it statically provides two to five to ten plausible readings.

In other words, you can't just say "static" and be done with it. You have to say (1) it's static; and (2) here's what that static meaning is. For me, the Second Amendment text supports both readings. Thus, we have no strong textual or even originalist basis for deciding which one to do. Since we're essentially just deciding and arguing on policy grounds anyway, let's just be open about it. Let's get rid of the facade that this is being determined by something other than policy and political preferences.

UPDATE 2: More at the new blog Appellate Review.

Comments

[magistra]

Similarly, if the libertarians really want to see what limited government is like look at say, early nineteenth century England, where you have the right to starve, the right to eat dangerously adulterated food and the right for four year old children to carry out hazardous work. The rise of big government isn't simply due to enthusiastic bureaucracies, but also to seeing the dangerous effects of non-regulation.

[Jesurgislac]

Similiarly, conservatives who say they might support a national health service for the US say they'll do so if it can be proved to them that it will work, and advocate for better access to the current spotty system of profit-making health insurance. This is talking as if the past sixty years of successful national health care for every other industrialised country in the world hadn't happened, but more than that: it ignores the scientific advances that make anything but universal health insurance really impossible.

Insurance oompanies are in the business of making money. Their ideal customer is someone who never makes an insurance claim, or at least claims as little as possible. Therefore their goal is to limit their customers to the pool of people who have nothing much wrong with them - and more and more, genetic testing is going to mean that insurance companies can and will avoid taking people as customers who are genetically likely to develop diabetes, or cancer, or some other expensive ailment - or at least, making it clear from the outset they won't pay on those claims. They will try to draw customers from the pool of profitable customers only, leaving the people who will definitely need expensive health care out in the cold.

A government can simply say: we will insure everybody. A government doesn't have to care if their national health insurance is profitable to its shareholders, because the dividends payable on that insurance scheme are the long-term health and vitality of its citizens. Which is, in the 21st century, the only practical course.

[Bruce Baugh]

Once again, Jesurgliac is right on about health. This water I'm drinking is really wet, too.

Publius, something in your comments jarred loose memories of an essay I read in college, and I see I've still got the anthology it was in. "Popular Uprisings and Civil Authority in Eighteenth-Century America", by Pauline Maier, is fascinating reading. She doesn't directly address the Second Amendment, but she talks about how violent resistance to government actually worked in the colonies and the new republic. She makes a distinction that seems sensible: in the colonial era, resistance was to an authority distant and often unaccountable, and certainly not directly consultative, represented at the upper levels by appointed agents who generally came from across the sea and went back when their duty was done. In the republican era, on the other hand, the governmental authority was present, available for questioning, and represented by people usually right out of the community at hand.

She briefly compares the problem of anti-governmental violence in the latter situation to blood feuding and other such methods for generating ongoing disputes. The colonial tradition of burning the assessor's home and office and the tax rolls could be awfully unpleasant, but eventually he'd go away, the incoming guy would have the warning "don't push it, these folks will get uppity", and a crude sort of feedback mechanism was in place. She produces what look like good citations to the effect that anti-governmental action in the colonial era was almost all contained to property damage, and what physical harm there was to people - officials and their families - was short-term, more in the way of being shoved around than being lynched. As the stakes rose, with lasting consequences on both sides, that restraint faded, and the pitch of protest violence and response violence cranked up.

The assertion of governmental authority to be the arbiter of govermental action's legitimacy via the courts is, in Maier's telling, a response to the practical reality of ever nastier violent cycles. It's not that early republican government was such great shakes at being representative, but it was at least possible for more people to go make their case (thanks in part to the First Amendment's clause on petition for redress), and more local people could be involved in making decisions, carrying them out, and dealing with their consequences. So it seemed possible as well as desirable to marginalize the power of the mob.

In that light, the idea that a majority or plurality of the Original Dads were struggling toward something like the Swiss system seems quite plausible - not a necessary reading of the Second Amendment, but a justifiable one.

[Brett Bellmore]

Ambiguity empowers you, when you are inclined to view it as a license to attribute meanings you like to a text you can't change. And we all like to be empowered, don't we? You might reflect on this, and ponder whether you're having trouble seeing a clear meaning in the 2nd amendment only because you really, really do not LIKE that meaning.

The Constitution is damned old, written for another age, by people who didn't share many of our modern values. It is perfectly capable of really, truly meaning something objectionable or unwise. And intellectual integrity is the ability to see what's really there, even when you don't like it.

[Jesurgislac]

Brett, thank you for acknowledging that you have no intellectual integrity.

.... Okay, I'm being snarky.

You may not like it that the text of the Second Amendment clearly references a "well-regulated militia". But it's there in the text. Have the intellectual integrity to acknowledge that, even if you don't like what it implies about the modern values of the NRA.

[Bruce Baugh]

It's true, Brett, the rest of us just aren't white enough to get it.

[Brett Bellmore]

I'm fine with the militia being mentioned in the preface. In 18th century terms, a "well regulated" militia is a militia that's properly trained and equipped. By guaranteeing the private right to own suitable weapons, the 2nd amendment safeguards a well regulated militia by guaranteeing the existence of a large pool of citizens, already owning and familiar with the relevant weapons. From such a citizenry a 'well regulated' militia may be expediently raised even if the formal militia system has fallen into disuse, or been deliberately discontinued by a government that doesn't WANT a state of freedom to be secure.

It really does all hang together coherently, if you take the time to study contemporaneous sources. Mind you, it hangs together in a form the NRA is rather uncomfortable with, they threw the machine gun owners under the bus decades ago.

[Jesurgislac]

In 18th century terms, a "well regulated" militia is a militia that's properly trained and equipped. By guaranteeing the private right to own suitable weapons, the 2nd amendment safeguards a well regulated militia by guaranteeing the existence of a large pool of citizens, already owning and familiar with the relevant weapons.

Indeed. And the same could apply today, except (a) having the gun controls necessary for a well-regulated militia would be opposed by the NRA: (b) there is actually no real purpose for the US having a Swiss-style militia, because there's no real risk of foreign invasion. As the Black Panthers and the Weathermen go to show, raising a citizen militia to fight back against government attacks on freedom is much less successful in the US than political and civil resistance. Raising an armed militia can really only be said to "work", when, as with the wingnut "survivalist" groups of the 1980s*, there's no actual threat to combat.

*Yes, I have been reading Footfall recently. Fascinating addition to "the shape of futures past".

[Brett Bellmore]

As it happens, I agree with your point B; The militia system is not well suited for America today.

As to point A, I disagree: The NRA would be rather enthusiastic about gun regulations that were actually necessary for a well regulated militia; Requiring every able bodied adult who wasn't a convicted criminal or mentally ill to own an assault rifle and practice regularly with it would be nirvana for the NRA.

What you're talking about are the sort of regulations a well regulated militia could be used as a pretext for enacting. Preventing people from being disarmed under the pretext of militia regulation, of course, was the chief purpose of the 2nd amendment.

But both points A and B are irrelevant, the 2nd amendment continues in force until formally repealed.

[Snarki, child of Loki]

Looking back to 18th century Boston, it’s much easier to see how guns and militias provided important checks on government overreach. The problem, though, is that the colonial era has passed.

So that's why we need to remove the impediments to private ownership of thermonuclear weapons.

Hey there, NRA? Could you get moving on this? Of course, in the absence of a war or insurrection, they'll only be used for "hunting", with the extra added goodness that your prey is not only sorta kinda (but not *really*) humanely killed in enormous numbers, but also insta-barbequed.

Just eat around the glowing bits.

[von]

The Heller gun case provides a perfect example. Personally, I think the Second Amendment is textually indeterminate – i.e., the text could plausibly support either a collective or individual-based right. For that reason, parsing commas in this context is rather pointless. If there are two equally plausible textual readings, then the question should shift to policy – what should we do? What are the consequences of selecting one reading over the other?

Publius, this passage gets at the key philosophical issue. There is no question that the Second Amendment's text is indeterminate -- every text is at a certain level. I don't agree with you that the text is quite as indeterminate as you make it out to be here on this particular issue (i.e., whether the reference to a "well-regulated militia" is limiting and, if so, how so?). But that's neither here nor there; I accept that there are colorable arguments for at least two different interpretations -- and likely many more two.

But the question is: once you have identified a passage that is facially indeterminate, how do you resolve the indeterminancy. I understand you to ask judges to resolve the indeterminancy on policy grounds.

Here I disagree. Judges are not well-placed to make policy judgments. They are not directly elected (not at the federal level, at least). They do not have a constituency upon which they rely. They are not responsive to the people. They have long and sometimes lifetime tenure, and are difficult to remove. There are very few effective checks on their judgments. They do not have particular training or knowledge to allow them to make better policy judgments than others. Etc.

Frankly, we don't want judges making judgments based solely on their view of good policy. There are other branches of the government that are better suited to that. The goal of conservatives is to restrain judges by requiring them to look to specified areas (usually historical meaning) to try to resolve the inherent indeterminancy of language. You may not agree with the particular places that conservatives would have those judges look, but that only argues for them to consider other sources. It doesn't require judges to simply become superlegislators whenever their confronted with ambiguity in a constitutional or statutory text.

[von]

Obviously, make "their" ==> "they're" here:

"It doesn't require judges to simply become superlegislators whenever their confronted with ambiguity in a constitutional or statutory text."

I need more coffee.

[Jesurgislac]

Requiring every able bodied adult who wasn't a convicted criminal or mentally ill to own an assault rifle and practice regularly with it would be nirvana for the NRA.

Then why do the NRA routinely oppose gun controls intended to confirm that a person attempting to buy a gun is not a convicted criminal or mentally ill, and to keep track of guns bought and sold so that if someone becomes a convicted criminal/develops mental illness, there is a record of how many guns they own?

Those would be regulations essential to a well-regulated militia. The NRA opposes them. Such regulations might have the effect of driving down gun sales a tad, and what the NRA is consistently for is ensuring a high volume of gun sales.

Preventing people from being disarmed under the pretext of militia regulation, of course, was the chief purpose of the 2nd amendment.

Wow. How smart you are to know about things that aren't actually in either text or historical background.

[Lamont A Cranston]

If the Civilian Marksmanship Program doesn't provide for a well regulated militia, I don't know what does.

[Brett Bellmore]

The Swiss have a functioning militia system in place; I don't notice them requiring anybody to keep a suitcase nuke in their closet, or even sarin cannisters. It's a right to be armed in the fashion of the average soldier, it's not going to apply to nukes until we start issuing nukes to boot camp graduates.

[RepubAnon]

The NRA's big schtick is fear: fear that you need guns to protect yourself on the day that THOSE PEOPLE come boiling out of the inner cities to take your stuff (remember the folks who got shot trying to leave flooded areas of New Orleans? That's the NRA's meme in action.)

I expect this court will find a broad individual right to own guns - and that in 20 years, this country will resemble Iraq and/or Somalia.

[Jesurgislac]

It's a right to be armed in the fashion of the average soldier

Then one would have to accept the regulations and gun control inherent in arming the average soldier. Which the NRA doesn't.

[RepubAnon]

Brent Bellmore seeks the right to be armed in the fashion of the average soldier? If we apply current standards, that means ownership of hand grenades, rifles with grenade launchers (each Marine Corps fire team (4 people/fire team) had one member with a combined rifle/grenade launcher when I trained), and, of course, fully automatic weapons.

I suppose it's one way to deal with overpopulation...

[a-train]

Great post Publius.

Von wrote "Judges are not well-placed to make policy judgments."

They may or may not be well-placed to make policy judgments, but in our system it is impossible for them not to make policy judgments. A judge would not be a judge if he or she did not make judgments. And since judges are the final authority on what a law means, they get get to make this policy judgment. This is especially true of Constitutional issues. The only way around it would be to make it easier to amend the Constitution so the legislature could easily clarify an issue that was ambiguous.

As it is, someone has to be the final authority on the meaning of a law. No matter how perfectly written, a law will have some ambiguity that needs to be resolved in some situations because every possible factual situation cannot be foreseen. Further, any attempt to write such precise laws would have the opposite effect, making them harder to understand (i.e. sometimes more precision = less useful meaning). This is particularly true of Constitutional type laws.

[J. Michael Neal]

Brent Bellmore seeks the right to be armed in the fashion of the average soldier? If we apply current standards, that means ownership of hand grenades, rifles with grenade launchers (each Marine Corps fire team (4 people/fire team) had one member with a combined rifle/grenade launcher when I trained), and, of course, fully automatic weapons.

Unless we plan to limit this to the right to be armed like the less than average infantryman, rather than the average soldier, this would include anti-tank rockets, and probably tanks as well. It's a nonsensical standard. Brett doesn't even believe his own definition; he tries to limit it to a point prior to its absurdity becoming obvious.

That said, it's a point I'm willing to concede in the practical sense. The data have convinced me that, while the US would be a lot better off if the gun genie could be put back in the bottle, that isn't an option. The amount of gun ownership at the margins of the regulations, or lack thereof, being discussed produces very little difference in actual gun violence. So, the political capital necessary to produce more stringent gun regulation is better spent elsewhere.

[Mis En Place]

The Swiss militia system is misunderstood. I sense many believe Swiss males are strolling about with military assault rifles, sucking on Ricola, with Swiss Army knives dangling from their lederhosen.

The reality is much different. Their state-issued firearms are, by law, required to be locked up and the ammunition sealed and accounted for.

The Swiss also have gun control, including registration, for privately owned guns.

[Brett Bellmore]

Let me be clear about where I'm coming from: I am extremely hostile to the notion that proving, (In somebody's opinion, anyway.) that a particular reading of the Constitution is imprudent counts for squat. The government doesn't need the Constitution to rule, plenty of governments get by without one. The Constitution exists to limit government.

Governments don't like being limited. Governments will always regard any provision of a constitution saying that they can't do something as imprudent. Allowing the government to interpret away clauses which it is claimed are imprudent is the death of constitutions.

History, which involves this country formerly having a LOT less gun control than we have today, does not suggest that an accurate reading of the 2nd amendment is nearly AS imprudent as those with an ideological/psychological aversion to private gun ownership suppose. The US of my childhood was a country where minors could buy ammo over the counter in hardware stores, a closet was thought adequate storage for firearms, and surplus anti-tank guns were sold mail order through advertisements in the backs of magazines.

Somehow we survived. We would survive the 2nd amendment being read honestly, rather than prudently.

With respect to gun control in Switzerland, it's clearly falacious to reason that,

Switzerland has a militia system.
Switzerland has gun control.
Therefore, gun control is necessary for a militia system.

Switzerland, today, has many gun control laws which are unrelated to maintainance of a militia system.

[joel hanes]

I remind publius (as well as Matt Yglesias and Ezra Klein and a host of other bloggers) that many Americans do not live in an urban setting. I know that seems nearly inconceivable, but it remains a fact.

[Jesurgislac]

Brett, gun control is necessary for any militia system. Otherwise, you don't have a well-regulated militia: you have a bunch of lunatics and hotshots running around waving guns. If you feel that possession of large numbers of guns is a worthy goal in and of itself, you need to carefully eliminate the words "well-regulated militia" from the Second Amendment. In a practical sense, the NRA has managed to do just that.

Given the history of the US, it would be foolish to argue that ownership of guns has anything to do with freedom and civil liberties, except insofar as you wish to regard gun ownership as a worthwhile civil liberty in and of itself.

[Dan Miller]

joel--then let those Americans set their own laws, and let those of us who do live in urban settings set ours. "Given these variations, it seems like the obvious answer is to defer to legislatures (which requires a more collective view). The elected leaders of Montana can do what they want, while DC can do what it wants."

[Meph]

And if I were the plaintiff in a securities case, I would file a brief with nothing but a DVD of Some Like It Hot attached. Not because it has anything to do with anything, but because those cases are boring and the Justices would probably want a laugh.

Even then, Publius, since I would be a party it wouldn't be an amicus brief. If you don't mind a little nitpickery.

[Sebastian]

"Certain strands of American conservative thought have never quite come to terms with the realities of modern life -- and more specifically, with the shift to industrialization and urbanization. The failure to look at modernity squarely in the face is particularly evident in law, but extends to non-legal contexts as well. I’ll start with the law though."

There are certain strands of American progressives who have not come to terms with the fact that there is all ready an amendment system in place do deal with constitutional clauses that are not suitable for modern life.

If you are going to bother having a Constitution, "that clause doesn't fit the modern world" is not an excuse for judges to mess with it.

Opening up Constitutional rights to a judicial critique of "eh, this doesn't really fit anymore" is a great way to make certain that no Constitutional rights are protected anymore.

Maybe voting rights as envisioned by the framers don't really fit anymore because political decisions are so darn complicated in the modern world.

Maybe free speech doesn't really fit because the reach of crazy people on the internet is too large.

Maybe the right to a speedy trial isn't so important anymore since the original problem was often that staying in a jail for 3 months was a death sentence from disease.

Perhaps cruel and unusual punishment should be ok because, at the time of ratification, shame worked better as a tool to check people's criminal instincts in a tightly knit world while now we need to have more strict punitive actions available to deter.

Maybe the idea that Congress is in charge of declaring wars doesn't make sense in the modern era.

Maybe the prohibition against having a state religion isn't suitable anymore now that we have to fight international Islam.

I don't believe any of those things. But if I did, it wouldn't be appropriate for me to pretend that the proper venue for getting those changes enforced was the court system.

[phastphil]

I'm a strict constructionist - everyone should be allowed to own a musket, musket balls, and a sufficient amount of powder.

[Jesurgislac]

I'm a strict constructionist - everyone should be allowed to own a musket, musket balls, and a sufficient amount of powder.

Brown Bess.

[Brick Oven Bill]

“To repeat, the broader point is that several strands of conservative jurisprudence seem to assume a world that doesn’t exist anymore. Specifically, they assume a world where urbanization and industrialization hasn’t happened.”

If I was a black father, trying to raise a family in New Orleans or Washington DC, I would have a handgun in the house. I would also find the premise of this article patronizing.

[joel hanes]

Dan - I agree. But I thought it interesting that publius seemed to be arguing from the premise that we now all live in cities.

I grew up in rural Iowa, where guns ownership was traditional and made perfect sense. My grandfather was a gunsmith and gun collector and Civil War arms buff.

Now I live in a vast urban conglomeration, and I wouldn't dream of having a gun in the house ; not because I consider it dangerous, but because it must be kept absolutely secret lest it provide a target for burglary.

Incidentally, although I disagree with Jeslurgiac on this issue, I was struck by her point that guns are controlled in a militia. I'm an Army vet, and I remember that the M16s belonging to my units were subject to extremely stringent control, and spent most of their time inventoried and racked in a multi-locked arms room. Ammo was, if anything, even more tightly controlled.

[hilzoy]

Yet another advantage of my interpretation v. specification view:

I think I get to say that policy considerations can predominate in some "specification" cases: cases in which one is interpreting a particular term, where the meaning of that term does not settle the case at hand (e.g., is X a "search" within the meaning of the 4th Amendment, where X is plainly in the ballpark of searches, but it's a boundary case, and it's not clear where the boundary should be), and where some interpretation is necessary, but which is not settled by the text.

In those cases, I can easily see the court replacing one such set of specifications with another on the grounds that the world has changed, and being right to do so.

(For instance -- I'm totally making this up -- suppose that the original interpretation of "search" had placed a lot of weight on the fact of government agents entering a house (or whatever) and looking around, but that new technical advances, like microphones capable of picking stuff up at a distance, heat sensors, etc., meant that the government could find out a whole lot about what is going on in your house without setting foot in it.

In this case, I think it's indeterminate, on textual grounds, whether using these new technologies to, um, investigate what's going on in someone's house would count as "searches" or not. The dictionary settles nothing. Some answer to the question "do these things count as searches?" is necessary; the courts can't just shrug and say "we dunno". Moreover, the existence of cases like this -- genuinely hard cases not settled by the meaning of the text -- is inevitable, given that the application of most terms is not determinate.

In this case, I think it would be fine for the court to say: here is how we will construe 'search'; our construction preserves the meaning and fills out those bits that the meaning leaves indeterminate in ways that respect the meaning, but given that there are several such ways, we decide among them based on a number of other criteria, including things like "what fits with other bits of the Constitution?", "what allows us to think of the legislators as basically sane?", but also "what is good policy?"

It would be different in cases in which interpreting the meaning of a term was at issue, I think. There I'm much more inclined to go all Sebastian (on reflection, I like the idea of going all Sebastian), and say: if the world changes in such a way that we need new laws, there are procedures for getting them, and those procedures do not include justices overruling actual statutes on policy grounds.

As I said last time, though: I think that a lot of the problem in this particular case comes from the fact that we have to use judicial interpretation to do work that would, in non-constitutional cases, be done by revising the law. In a statutory case, if the justices get it wrong, the legislature can just revise the law; if the justices strike it down as too vague, the leg. can write a better one, etc. Here, such options are much, much harder, so the stakes for correct interpretation go way up.

[Wilson]

Guns will keep us safe from the government - right. Anyway, your headline started a tune in my head so I decided to review the lyrics again:

Beck - The Golden Age

Put your hands on the wheel
Let the golden age begin
Let the window down
Feel the moonlight on your skin
Let the desert wind
Cool your aching head
Let the weight of the world
Drift away instead

These day I barely get by
I don't even try...
-----------------
Guess we could always use the guns for shooting dinner, you know, some squirrel in popcorn maker. Sorry, but earnest discussions in today's McArdle, truthiness,upisdown,sniper shots,subpop subprime liberal fascist world seem quaint.

We need to attack absurd positions, not debate them. That we need guns to ensure our rights and protect us from the government is like saying we need to debate the flat earth society. It's shiny object bullshit and red meat for the base. Publius is right, but that's not why this issue has ended up on the radar screen right now.

[publius]

hilzoy - that's true, but one way to address that it to pick readings that defer to legislatures. here, for instance, if you want to free a legislature's hand, the collective interpretation puts the least restrictions on them. if people don't like what the justices do, they can elect different political leaders under this reading.

if the justices, by contrast, adopted an extreme individuals' right view, that of course severely limits what people can do.

the point being is that just b/c justices are deciding non-statutory constitutional issues doesn't mean they can't enable the political process too

[Sebastian]

On further reflection it is tough for me to understand what your worries about the commerce clause are, publius.

For example, the SEC clearly deals with interstate commerce. Even putting fairly serious teeth back in to the commerce clause wouldn't change things all that drastically.

While I'd be open to the idea that purely in-state pollution is a purely in-state problem, there aren't many areas where pollution is truly in-state, so I don't see the clause being a serious bar to the EPA for example. (And the most pollution intensive companies have clear interstate commerce issues as well, so attacking it from the commerce side doesn't seem likely either).

[von]

A-Train, I think you missed my point (or perhaps I wasn't clear enough). You characterize my position as follows:

Von wrote "Judges are not well-placed to make policy judgments."

They may or may not be well-placed to make policy judgments, but in our system it is impossible for them not to make policy judgments. A judge would not be a judge if he or she did not make judgments. And since judges are the final authority on what a law means, they get get to make this policy judgment. This is especially true of Constitutional issues. The only way around it would be to make it easier to amend the Constitution so the legislature could easily clarify an issue that was ambiguous.

I do surely believe that Judges are not well-placed to make policy judgments, but I never took the position that judges never, in fact, make policy judgments. Of course they make policy. My position, however, is that "we don't want judges making judgments based solely on their view of good policy[.]" We want to put parameters on how and what policy determinations a judge might make.

Conservatives do a very good job of at least identifying those parameters. Publius' response is that they identify the wrong parameters. I don't necessarily agree with that, but that isn't my point here. What, if any, parameters would Publius or his supporters put on a judge's ability to make policy where the language of the Constitution or a statute is indeterminate? How should a judge go about making resolving the ambiguity?

[Johnson's Dog]

I doubt the Founding Fathers expected their Constitution, the product of the American political realities of the late 18th Century, to be treated like a sacred text for all eternity. If the Second Ammendment is ambiguous in its meaning, then the Second Ammendment can be rewritten to make clear its meaning. Handguns, bazookas, and AK-47s can be definitively excluded from the arsenals of American citizens. It can be done.

[von]

By the way, Hilzoy's post on March 26, 2008 at 10:57 AM does a good job of identifying the kinds of criteria that restrain a judge's ability to make policy determinatiosn. Publius seems to agree with Hilzoy on the generalities, but some of the other comments appear to adopt a more extreme reading of Publius' original post* -- one that, for the reasons identified above, is not defensible (IMHO).

von

*I would adopt a few more restrictions and use a different ranking of where to look first, and leave out the "well, what do I think is good policy" part. My perspective on these matters is not precisely Sebastritarist, but much closer to Sebastritarianism than it is to Publizoyism.

[Anarch]

Didn't publius explicitly say that the judges should defer to the state legislatures here?

[Sebastian]

Publius, I don't understand how your 11:03 comment is consonant with your critique of conservatives and the Constitution.

Maybe it is that I don't understand your critique of conservatives and the Constitution.

It looks to me like your critique is really of the idea of Constitutions. They don't change fluidly enough for your liking (in the areas where you don't like their restrictions). You don't deal with the problem (or at least issue) that allowing for much more fluidity might endanger the parts of the Constitution that you do like. "Doesn't come to terms with the realities of modern life" is a vague critique which could have all sorts of applications that you might not find comforting. I gave some examples above. They may seem ridiculous, but I wouldn't want a judge thinking that it might be ok to decide a case with those kinds of things in mind.

So then we come to your later comment. This one sounds like an argument against judicial review, but I'm pretty sure you don't mean that so I'm lost in the argument.

But if you are saying what it sounds like you are saying, would you be ok with a 'leave it to the legislatures' approach on the establishment of religion? Free speech? Cruel and Unusual?

It seems to me that if we are going to bother with a Constitution, we should take it seriously. And if sometimes it gets in the way of our preferred policy we should abandon the policy, not the idea of a strong Constitution.

And if the policy is REALLY important, we should amend the Constitution.

Any technique we create to use as a work-around to ignore the Constitution in areas that we think it isn't up to dealing with the modern world is a tool we have created to allow other people to attack the areas that we do like.

That doesn't seem wise if you believe in the idea of a Constitution.

[Mis En Place]

Somehow we survived. We would survive the 2nd amendment being read honestly, rather than prudently.

We would survive if an attack of the magnitude of 9/11 happened each month in the US. Which approximates the annual butcher's bill for gun deaths annually in the US.

Survival is setting the bar very low.

[von]

Re: Publius' update:

In other words, you can't just say "static" and be done with it. You have to say (1) it's static; and (2) here's what that static meaning is. For me, the Second Amendment text supports both readings. Thus, we have no strong textual or even originalist basis for deciding which one to do. Since we're essentially just deciding and arguing on policy grounds anyway, let's just be open about it. Let's get rid of the facade that this is being determined by something other than policy and political preferences.

Before broadening the search to modern public policy, and since the choice is between a "broad" and "narrow" construction, why not next look to whether contemporaneous documents identify a preference for whether this right should be construed broadly or narrowly?*

von

*This idea is well-established in the common law tradition -- that there's effectively a final rule to resolve situations where applying all the prior rules gets you two possible interpretation. For instance, in patent law, the final rule (and I'm seriously paraphrasing the Athletic Alternatives case here) is that you choose the narrower scope for a patent if that narrow scope clearly enabled by the patent's written description. The idea is that the patentee filed the patent and could have tried to get a broader scope, and thus should properly bear the burdens of any final indeterminancy. But the rule may -- indeed, should -- be based on what type of document is at issue. In this case, I would argue that one might find a rule to apply by looking at how the right to arms was generally understood at the time to decide whether we shade our interpretation more broadly or narrowly.

[von]

I also second Sebastian's comment on March 26, 2008 at 11:32 AM.

[gwangung]

Hmph. I'm now leaning to the stance that if even prudent use of a weapon has a substantial chance of causing serious collateral damage, then the user should be subject to charges afterwards. (i.e, firearm with penetration power in a crowded apartment building, or flamethrower in an urban setting).

[Andrew]

A bit off topic, but I wanted to address this part of the post:

We live in a Eleanor Rigby world where families are scattered, where people don’t know their neighbors, and where old-time community networks just don’t exist (or at least nowhere near the extent they used to, if they even existed then).

Flexible labor markets.

Just move to where the money is, or it's your fault if you're poor.
Move away from your friends, family, support network, kids' school.

Just be flexible. Who needs a community if you have a good job?

[publius]

von/seb - this requires it's own long post, but I think you are fighting strawmen to some extent. rhetoric aside, no one is saying "do anything you want on policy grounds."

for me, it's a two-step process. first, is a given result textually plausible. for heller, I think both "sides" are. in lawrence, i don't. so in lawrence, it stops there - lawrence was a bad legal decision even though it's correct on policy.

but once you've passed step one, then it's anyone's game about how to go from there. like courts have done throughout history, i support an eclectic approach of precedent, policy, etc.

my point though it that you are all are inverting the argument. you're deciding b/w textually plausible options on policy grounds. and THEN trying to dress up that policy decision as "static" "immutable" text. you static-ness however just pre-assumes the answer that i think courts should debate.

in short, in the guise of arguing for an "unchanging" constitution, you are advancing a politically pleasing interpretation.

[Sebastian]

"For me, the Second Amendment text supports both readings. Thus, we have no strong textual or even originalist basis for deciding which one to do. Since we're essentially just deciding and arguing on policy grounds anyway, let's just be open about it."

But that isn't the end of the story. You can examine the way the text was treated at the time, the way similar texts were treated at the time, and the way things actually played out at the time to get a better understanding of what it says. You can and should do all of those things well before you get to the judges' personal policy preferences.

In this case 'the right of the people' is always used in a personal right setting--throughout the Consitution and throughout other contemporaneous documents.

[Jesurgislac]

Sebastian: But that isn't the end of the story. You can examine the way the text was treated at the time, the way similar texts were treated at the time, and the way things actually played out at the time to get a better understanding of what it says. You can and should do all of those things well before you get to the judges' personal policy preferences.

Because what people thought 200 years ago about firearms, personal possession of, is more important than what people think today about firearms, personal possession of?

[Katherine]

Aren't the sorts of considerations publius mentions relevant to incorporation under the current precedent even if they're not relevant to interpretation of the Second Amendment itself? I realize that this case is about D.C., not a state, & that many people say the whole Bill of Rights should be incorporated under the privileges & immunities clause. But the "essential to a scheme of ordered liberty" standard is current law, no? And I think the 2nd Amendment fails with flying colors.

In other news, I don't like the Supreme Court very much. I was at the argument yesterday & Lithwick's synopsis is only too accurate.

[von]

but once you've passed step one, then it's anyone's game about how to go from there. like courts have done throughout history, i support an eclectic approach of precedent, policy, etc.

But this is where I disagree -- it's "anyone's game" where to go from there if you adopt the particular philosophy that you're advocating. For me, it's not anyone's game from there. If both outcomes are plausible readings of (today's) plain-and-ordinary meaning of the text as understood today, (taking into account the context and purpose of the whole document, of course), I next look at the plain-and-ordinary meaning at time of passage. If that doesn't resolve it, I attempt to ascertain and define any terms of art in the text according to their meanings at the time of passage. If that doesn't resolve it, I examine the differences and similarities with other texts of similar stature or value,* and attempt to interpret this term consistent with those other texts. If that doesn't resolve it, I attempt to identify the historical common-law right that is being encapsulated, and seek to ascertain how that right was treated prior to passage. In this limited circumstance, I might also look to how the common law right has developed because that may be relevant to how to apply the given right today. (That's a difference between my approach and, e.g., Scalia's.) If that doesn't resolve it, I look at the circumstances of passage and how any concepts were treated in other, perhaps unrelated, texts at, around, or before the time of passage. If that doesn't resolve it, I end my search by preferring to construe grants to the people** broadly and grants to the government narrowly.

Now, that may be an entirely foolish approach and it certainly isn't yours. But it is not "anything goes": There's a process and a ranking that you can apply that keeps everyone in the same conversation, if not always on the same page. But that's not an approach that I hear you to advocate.

(I recognize, of course, that the human impulse to reach the "right" result will exist regardless of which approach is chosen.)

von

*For the Constitution, this would be the Dec. of Ind., the Northwest Ordinance, and the Articles of Confederation. I may also consider the Confederate Articles of Confederation in my search of the common law to see what the South changed, assuming that they made these changes for a reason -- and thus if they change X to Y for policy preference Z, I probably should construe X in such a way to get preference Z.

**In some circumstances outside of the 13-15 amendments and the Supremecy clause, I may also construe grants to the states broadly.

[hairshirthedonist]

I'm surprised no one has directly discussed what (level of) government is being limited by the 2nd Amendment. Is that settled?

[Sebastian]

Jesurgislac, "Because what people thought 200 years ago about firearms, personal possession of, is more important than what people think today about firearms, personal possession of?"

No, because what people thought about whether or not 'the right of the people' meant about individual vs. collective rights may expose that the ambiguity is really a function of a modern misunderstanding about the language the law was written in rather than a true ambiguity in the language itself.

Publius, "but I think you are fighting strawmen to some extent. rhetoric aside, no one is saying "do anything you want on policy grounds.""

I'm not trying to fight a strawman. I'm trying to understand the argument in your post.

I'm not sure that even your later formulation is all that comforting. 'Textual Plausibility' is in the eye of the beholder. It is apparently plausible to McCain and Feingold (along with a majority of Representatives and Senators as well as the President at the time that the right to free speech and the press does not include raising independent issue ads (which if you recall were initally banned during a window just before elections). In the case in point, the collective rights approach isn't a completely tortured reading but it isn't how anyone reading it before 70 years ago woud have imagined reading it--which is a pretty strong argument for it being a wrong reading. (It also depends on over-emphasizing one reading of 'militia' while reading the routine use out of existance). And from a precedent point of view, even the alleged lichpin of collective rights jurisprudence in the Miller case stated that the militia was expected to bring their own weapons from home.

[rea]

There are lots of things in the Constitution that were deliberately written ambiguously, in the expectation that courts would work out the details latter on a case-by-case basis.

In colonial times, most law was not statutory; it was common law based on judicial precedent. The idea that judges making policy is somehow wrong would have been regarded as bizarre by the founding fathers . . .

[Sebastian]

Von's comment is a pretty good explanation of how I think Constitutional interpretation should work in cases of apparent ambiguity.

I would add that his outline also has the virtue of being how we tend to interpret statutes in cases of apparent ambiguity when there aren't Constitutional issues which might superceed the legislative intent. It is also consonant with how we interpret contracts in many cases (though sometimes there are statutes which compel construction against a certain party--i.e. in the case of ambiguity in an insurance contract, the ambiguity is always supposed to be assumed to be in favor of the buyer and against the seller).

I don't think having a free for all in the case of ambiguity makes sense. And if you want that to be the policy, it doesn't make sense for judges to do it--free for all's belong in the legislature. (Which may be in fact your position, but I'm voting against free-for-alls in Constitutional law.)

Part of the problem with your free-for-all-in-the-case-of-ambiguity concept is that lawyers are (unfortunately) largely about creating apparent ambiguity for the purpose of leveraging it in the favor of their clients. Making the next step after an apparent ambiguity "anything goes" seems really dangerous.

I think (hope?) you have in mind some implicit limits on that (for example I suspect you wouldn't be ok with "there is ambiguity therefore I will flip a coin for the answer), but once you come unmoored from textualism I don't see how you justify them without it all coming down to "policies I like". And if it is going to be "policies I like" I would prefer that judges aren't the ones making that decision. That isn't their role. Their role is to enact the policies chosen by other branches unless subordinate law conflicts with a governing document.

[Feddie]

The Constitution is not a common-law document. It incorporates certain elements of the common law, as it existed at the time of ratification. But that is the extent of the Constitution's common-law nature.

[Andrew]

I'm all for a strict interpretation. Anyone who would like to own a saber and a musket may do so.

[Sebastian]

"In colonial times, most law was not statutory; it was common law based on judicial precedent. The idea that judges making policy is somehow wrong would have been regarded as bizarre by the founding fathers . . . "

Common law was not looked at as 'making policy'. It is supposed to be about formalizing already existing practices. If you want progressive changes you should appeal to legislatures. Common law is supposed to be conservative. The beauty of the Constitutional system is that it allowed both for conservatism AND progressive needs to balance against each other without the need for revolution on the one side or gestapo crack-downs on the other. It created an orderly system of change--legislatures. It created a basic governing law to reign in legislatures, but allowed even that to change--amendments.

Common law as policy is rooted deeply in the natural law position--which is to say something that I'm pretty sure you don't accept.

[Feddie]

Andrew-

And you sir, are free to unplug your computer and send in all of your comments to this post by way of a hand-written letter vis-a-vis pny Express.

Still want to play that game?

[russell]

Great post and great discussion. Thanks, publius.

I'd like to add just a couple of things.

As Mis En Place noted upthread, there actually is a well regulated militia in Switzerland, and members of that militia are issued a standard military firearm (a fully automatic rifle) which they keep at home. As Mis En Place also noted, that firearm is kept locked, the ammunition is kept sealed, and the weapon is not to be used for any purpose other than service in the militia.

Brett notes that the Swiss have gun laws above and beyond what is needed for a well regulated militia. That is most likely correct, and if those laws existed in the US, a plain text reading of the 2nd Amendment would not, I believe, find them unconstitutional.

My general impression is that folks who bristle at gun laws are less concerned about a well regulated militia, and more concerned about owning firearms for their personal protection. It's not clear to me that owning a firearm for personal protection is protected by the 2nd Amendment. That doesn't mean it's a good thing, or a bad thing. It just means it does not appear, to me, to be within the scope of the amendment's protection.

I disagree that a citizen militia on the Swiss model would be inappropriate for the US. It's only inappropriate if the purpose of our military extends beyond national defense. For that purpose, I think it would work perfectly well.

Thanks -

[Andrew]

And you sir, are free to unplug your computer and send in all of your comments to this post by way of a hand-written letter vis-a-vis pny Express.

Still want to play that game?

Sure, Feddie. I love games. Have since I was a kid. Which why I used satire to point out the absurdity of the 'original intent' -v- 'living constitution' controversy.

[trilobite]

Publius, as a big-city boy, I sympathize with your policy arguments. And I agree with you that the text of the Second Amendment is murky. But I disagree with the rest of your post.

First, state-by-state can't do enough to limit guns in dense urban areas. City dwellers in states still under rural control need these laws as much as New Yorkers do. Also, guns are very easy to smuggle across state lines. If you're going to successfully control guns, you need federal laws.

Second, and more importantly, while I appreciate your frustration with policy arguments dressed up as procedural or historical arguments, and I agree that our current Court is all about politics (Bush v. Gore proved that point for our generation), I don't think we should encourage that. We are stuck with Scalia, Thomas, and Kennedy making decisions based on how they think the world should be (and early indications as to Roberts and Alito are not promising). But if the best we can do is have them keep faking playing by the rules, let's do that, and work on making the judiciary more rule-bound, not less. I think it can work: most judges seem at least try to solve cases by the rules, not by their policy preferences.

Ultimately, we want judges to use the sorts of tools Sebastian and Von discuss, not just to indulge their policy preferences. Not just because most of the current judiciary happens to disagree with me on many points, but also because, durn it, that's our system, and it's more fair than some kind of mandarin-style reign-by-judges.

It seems to me that when people argue that judges should make decisions based on policy (often joined with the argument that this is what judges really do so why not admit it), they are really expressing frustration with how slow and cumbersome legislative change is. The hidden wish is that the courts act as a benign dictator: quick, efficient, and on our side. But there is no such easy out. Even when it looks like there is (e.g., Roe v. Wade, Brown v. Board of Ed), it usually turns out to be the start of the fight, not the end.

[Klerk]

It is so great to see you back in the law blogging business. Seeing you and Feddie going at it again warms the cockles of my heart. Obviously I disagree with you, and elaborate more over at my place.

In essence, the problem for me is the gap between your first and second step that you delineate at 12:05. There is a large gap between possible and plausible interpretations. If two readings are possible (Second Amendment, arguendo), and one has far greater support, then a Judge should side with the MORE PLAUSIBLE interpretation -- the one that has the greater support -- regardless of policy implications.

Only when both the possible interpretations AND THEIR SUPPORT are in equipoise can you reach your step two. I sincerely doubt that this circumstance - interpretation in the absence of any clear support or precedent - is likely to arise.

[Mis En Place]

In this case 'the right of the people' is always used in a personal right setting--throughout the Consitution and throughout other contemporaneous documents.

Perhaps.

OTOH, why include the first dozen words of the 2A if the intent was a personal or individual right? It seems to me the Framers could have omitted those dozen words if that was indeed the purpose.

I'd also point out, via Garry Wills, Madison's original draft of the 2A directly referred to both a "well-regulated militia" and "military service."

During the ratification debates there was little discussion about an individual or personal right but there was much to do concerning the necessity of protecting state militias from the federal government.

It may be a mistake to frame the issue as one of either a "collective" or "individual" right. Perhaps it is a civic right.

[J. Michael Neal]

There's a problem that I have with Sebastian's and Von's arguments, which other people have touched upon, but not stated explicitly. Out of the clause "the right to bear arms," they want to interpret the word "bear" exactly as the people of the time conceived it, but they don't want to do the same with the word "arms." What constitutes "arms" has changed dramatically in 200 years, and they're fine with keeping that definition up to date. They are not willing to do the same with anything else.

[Feddie]

J. Michael Neel-

There is an important difference, however, between a fixed principle (the right to bear arms), and the application of the principle in a modern context.

The notion that the founders would have thought that the type of arms that one could own would be fixed in time is silly. What they wanted to preserve was the right of individual gun ownership as a check on governmental tyranny.

You wouldn't assert that all first amendment speech should be limited to hand-written documents, would you? Of course not. Because while the cherished principle of free speech is static and fixed in time, the application of that right changes over time.

[Tony P.]

In all this discussion over the fixity or fluidity of The Rules, let's not lose sight of an important fact: even the strictest of strict constructionists get all excited about WHO gets to be a Supreme Court Justice. Evidently, both liberals and conservatives agree that The Rules are open to interpretation -- or else Supreme Court appointments would be less controversial than they often are.

The Founders could have specified that Supreme Court Justices be selected by competitive examination, or by seniority, or by some other method. But they did not. They made it an explicitly POLITICAL thing. Whether that was wise or not, it seems to have been a tacit acknowledgement that different judges will reach different outcomes, however fixed and immutable The Rules may be.

-- TP

[Andrew]

You wouldn't assert that all first amendment speech should be limited to hand-written documents, would you?

'Course not. What is the biggest limitation on free speech? Stuff that can get people hurt. Fighting words. Shouting 'Fire!' in a crowded building. "Clear and present danger."

Do you suppose the proliferation of firearms in the U.S. poses a 'clear and present danger'?

[Ugh]

Ah, yet another topic for my list

6. 2nd Amendment/Gun control

(I can't find my comment on what was 5., so maybe I'm repeating myself here)

[Patrick]

Does anyone know of a time, other than during frontier wars, in which militia action was in some way useful?

The best I can come up with was some racial violence near Cincinnati that I read about back in college, where a white militia tried to burn down a walled black community and a black militia barricaded themselves in for a while in self defense, until the white militia broke into an armory and stole some cannons and put stop to it.

[Mis En Place]

The notion that the founders would have thought that the type of arms that one could own would be fixed in time is silly. What they wanted to preserve was the right of individual gun ownership as a check on governmental tyranny.

If the intent of the Framers was an individual right to do battle with a tyrannical government, doesn't that suggest individuals have a right to 'arms' that include everything up to and including nuclear weapons?

[Brett Bellmore]

Well, there was the http://www.constitution.org/mil/tn/batathen_press.htm>Battle of Athens; You could regard that as the militia at work.

I think Jes's take on gun control and the militia is a textbook example of the falacy of equivocation: Maintaining a militia requires legislation regarding firearms, gun control is legislation regarding firearms, ergo, maintaining a militia requires gun control. Of course, "gun control" as we know it today is radically different, one might even say diametricly opposed, to the sort of firearms regulation required to maintain a militia.

I will grant that in limiting cases, such as Switzerland, where the continued existence of the militia is a blatent military necessity, a militia can coexist with some degree of gun control, because that gun control will never be carried far enough to threaten the militia.

Here in the US, though, no such necessity exists, or even existed at the time the 2nd amendment was drafted, and there was a very real fear that the government would attempt to render a militia impossible by disarming the citizenry. And that is what the 2nd amendment was supposed to prevent.

So the situations here and in Switzerland are somewhat different.

[J. Michael Neal]

The notion that the founders would have thought that the type of arms that one could own would be fixed in time is silly.

There is a problem with this, too. If you make the argument that the purpose of the 2nd Amendment is to produce an effective militia, particularly one that is meant to protect us from tyranny, then it must be armed at a level that would allow it to fight effectively against an actual military.

Most of the arguers in favor of the individual rights position on the 2nd Amendment want it to apply to modern weapons, but only up to a point. They draw a line at what arms the Amendment applies to at an arbitrary level.

Two hundred years ago, the militia included artillery. It wasn't based upon what the average soldier carried; it applied to all arms. It's just that there wasn't a wide divergence in power from the least weapons to the greatest.

If you are arguing the 2nd Amendment as a matter of principle, rather than practical policy application, there isn't a reason to stop with the right to possess small arms. As soon as you do so, you have forfeited the high ground of a purely principled position.

[Sebastian]

Tony, "even the strictest of strict constructionists get all excited about WHO gets to be a Supreme Court Justice. Evidently, both liberals and conservatives agree that The Rules are open to interpretation -- or else Supreme Court appointments would be less controversial than they often are."

I don't think this argument gets you anywhere because the Supreme Court is important both when it follows the rules and when it doesn't. You could have one group which has pledged to completely ignoring the rules and one that follows them. Opposing the ones who want to ignore the rules could be important *because* you believe strongly in the rules. Opposing the ones who don't like the rules doesn't somehow call into question your commitment to the rules.

Mis, "If the intent of the Framers was an individual right to do battle with a tyrannical government, doesn't that suggest individuals have a right to 'arms' that include everything up to and including nuclear weapons?"

Probably not because even back then there was a distinction between 'arms' and 'ordnance'. The first is something that a militia member would be expected to have around the house and bring when called for military service. The second (cannons and the like) were sometimes owned by individuals (so we can't totally rule it out) but not under the normal understanding of 'arms'. I would argue that arms includes things likely to be used and carried by your average soldier. Ordnance is more like artillery and bombs.

And btw, I think this is much closer to the area of real ambiguity (the collective/personal argument is pretty much wishful thinking on the gun control advocates part so far as I'm concerned). I would say that guns which can be easily carried are clearly covered. (And please remember that no right is completely unlimited, so regulation is possible it will just be under a more-like strict scrutiny review). Nuclear bombs, mines, etc. sound more like ordnance to me. Grenandes would probably be an interesting borderline case.

[Katherine]

"Because while the cherished principle of free speech is static and fixed in time, the application of that right changes over time."

OMG, living constitutionalist! I cast thee out!

Okay, that was obnoxious, but seriously: this sounds a lot like what Jack Balkin calls "text & principles" & what I'd call "purposive textualism", and yet when we do it you call it "judicial tyranny".

[J. Michael Neal]

Again, I disagree. While individuals rarely had artillery at home, the militia certainly had it. There were plenty of cannons kept in armories that were not under government control.

[Sebastian]

"Okay, that was obnoxious, but seriously: this sounds a lot like what Jack Balkin calls "text & principles" & what I'd call "purposive textualism", and yet when we do it you call it "judicial tyranny"."

I think a lot of it has to do with questions of fact vs. morals. On a question of fact, the court can take judicial notice of a change in facts.

So take for example a theoretical Constitutional right of minors not to have poisons sold to them. If the writers of the text believed that mercury was non-poisonous, but we later found out that it was in fact poisonous, the Court could take judicial notice of the discovery.
Most of ‘free speech’ that people want to protect on the internet really falls under “the press”. Most people don’t realize that because the news media has transformed the idea into “the PRESS” as if it were a special elite group of people who get Constitutional protection that other people don’t get. So if the Court wants to take judicial notice of the fact that press communications happen on the internet, they can do so.
Or to take hilzoy’s extension idea, ‘search’. It is a closer case than “the press” (which I think is almost a slam dunk). But if you look at the history of searches, it was not only about physical intrusion, but also about the privacy of content—see especially private letters wherever found. So the intrusion of private things to discover their contents, even if not a physical intrusion, would tend to be a search. This would include high-tech goggles, wiretapping, and key-logging a private computer.
The areas you are talking about aren’t much like that. Take gay rights for instance. There definitely isn’t a firm enumerated right on the subject. No normal extension of enumerated rights gets you there. So then you have to appeal to one of the broad rights amendments. The problem there is that they don’t seem intended to protect new rights, but rather ensure that the same old rights that everyone else had gets applied to people who were denied them (with a special view to former slaves, but it applies to everyone). You could try to appeal to a traditional right of completely unfettered sexual autonomy, but that right has never existed (see adultery laws or cousin marriage laws or anti-prostitution laws). So you have to shoe-horn new rights in, but it isn’t at all clear that new rights are supposed to be introduced into the system that way. I.e. it isn’t obvious that those amendments cover rights which haven’t become firmly embedded in the society. (I’m open to the idea that after a generation or two of the government acting as if there was a right, that it makes it in under those clauses but that clearly isn’t where we are with those rights).
A similar case is the death penalty: I agree that “cruel and unusual” is meant to change with the society over time. But the Court can’t be the vanguard on that issue. If such clauses are meant to reflect societal change—the Courts can’t enforce them until the society actually changes. Society actually uses the internet like a press. It doesn’t (unfortunately) totally accept gay people. If I want to make law on the second topic, I need to appeal to legislatures.

[Jesurgislac]

Sebastian: Take gay rights for instance. There definitely isn’t a firm enumerated right on the subject. No normal extension of enumerated rights gets you there.

Oh, for heaven's sake. If the Second Amendment is intended to cover the people's right to bear arms in a militia, and if the National Guard constitutes the "well-regulated militia" of the Second Amendment, then any denial of an LGB or T's citizen's right to serve is plainly unConstitutional, since it removes their right to bear arms in a well-regulated militia.

States have the right to decide marriage law - Tenth Amendment: the Constitution explicitly requires each state to recognise each other's marriage law: so the recent proliferation of state laws declaring they're not going to recognise a legal marriage or a civil union made in another state are all unConstitutional (the legal arguments are all on fours with the old interracial marriage freakouts, and those were declared unConstitutional 40 years ago) and the federal law allowing the government to dictate that a man can't marry the partner of his choice because he's the wrong gender, is certainly unConstitutional.

The problem is that most conservatives argue that gay rights aren't Constitutional because in their view, in the good old days, LGBT led lives of misery, secrets, and silence, and they want that "Golden Age" back.

[Jay Jerome]

Just one more
2nd Amendment Reality Check

[Sebastian]

“Again, I disagree. While individuals rarely had artillery at home, the militia certainly had it. There were plenty of cannons kept in armories that were not under government control.”

I’m not clear with what you are disagreeing. The fact that private people held artillery (which they certainly did) doesn’t mean that there was no distinction between ‘arms’ and ‘ordnance’ (which there was in common parlance at the time). And ‘arms’ definitely has a Constitutional amendment, while ‘ordnance’ may not be covered in that.

Look how you are arguing—that because the 2nd amendment seems to have been made at a time when both arms and ordnance were in private hands, and that because arms were protected by the amendment, since we don’t like the idea of ordnance being protected, therefore arms aren’t protected.

That doesn’t follow. More likely, arms were Constitutionally protected, and ordnance was just permitted with no Constitutional ramifications either way. Or perhaps arms AND ordnance are Constitutionally protected. But getting from that to NEITHER being Constitutionally protected doesn’t look like good reading and/or history.

[Brett Bellmore]

"If the Second Amendment is intended to cover the people's right to bear arms in a militia"

But it's not. People don't have any right in this country to bear arms in a militia. That's well established, and was even at the time the 2nd amendment was ratified.

Bearing arms in a militia is a legal duty, not a right.

The right is to bear arms outside a militia, so that if the government from negligence or worse motives discontinues the militia system, an armed populace will exist from which one can be speedily raised at necessity.

[Sebastian]

"Oh, for heaven's sake. If the Second Amendment is intended to cover the people's right to bear arms in a militia, and if the National Guard constitutes the "well-regulated militia" of the Second Amendment, then any denial of an LGB or T's citizen's right to serve is plainly unConstitutional, since it removes their right to bear arms in a well-regulated militia."

I'm fully ok with the idea that the Constitution doesn't allow the government to deny gays the right to bear arms, or free speech, or of the press, etc. They are citizens and are due all of the rights of citizenry.

[Tom S]

In Switzerland, one is also required to train for 18-21 months, and then 3-4 weeks per year until age 26. Then comes a reserve obligation. If you want to go through that in order to be able to have an automatic rifle in your house, then knock yourself out.

[Tony P.]

Sebastian,

When you speak of "enumerated rights" you worry me. Persons have rights. Government has powers. We enumerate the POWERS we grant to our government. The Bill of Rights is an enumerated list of LIMITATIONS OF GOVERNMENT POWER, not a list of the "enumerated rights" of anybody.

To persons, everything not forbidden is permitted. To our government, everything not permitted is forbidden. Some judges would agree about that, some would not. What the Constitution "means" depends on which kind of judges interpret it.

You think some judges intepret "wrongly". So do I. But I bet we differ on which judges those are. How do you propose to settle THAT dispute? If there were some algorithmic way to deduce from text and precedent what The Rules are, the Founders could have saved us all a lot of trouble and specified that Supreme Court Justices shall be chosen by lot.

-- TP

[Brett Bellmore]

"If you want to go through that in order to be able to have an automatic rifle in your house"

Having trouble comprehending the concept of a "right"? The founders approved of Switzerland's militia system, but the Swiss don't have a constitutionally guaranteed right to keep and bear arms. Their government lets them keep and bear, under carefully regulated terms, because it can't, militarilly, afford not to have every available warm body armed, given it's neighborhood and history.

[cleek]

seems like most of the people here should be able to recite this entire thread from memory by now.

[bc]

Because what people thought 200 years ago about firearms, personal possession of, is more important than what people think today about firearms, personal possession of?

Yes, when it comes to what a provision of the Constitution means. The principle of constitutional government means you stick with provisions until amended. What Sebastian said at 11:32 a.m.

If the provision is so ridiculous, try to get it amended. That way, you will see what people think about it today. It's clear from the comments here that there would be support for its repeal (though not from me).

Forget the "policy" argument re the judiciary;

what von and sebastian said.

It's still amazing to me that people would prefer judges to make decisions that are left to the people.

So that's why we need to remove the impediments to private ownership of thermonuclear weapons.

What Sebastian said re "ordinance." Also, the militia didn't own a navy.

Re: usefulness of 2nd A today:

I see the anachronism to a point. I'd like to think that it's not that meaningful today, but I'm not so sure. You sure wouldn't want to take away all the weapons and be sorry later. Plus, the experience in the Warsaw Ghetto and in Russia (not to mention Iraq) shows that an awful lot can be done with common weapons.

For all the gun control advocates, I read this article in Imprimis when it came out and found it interesting regarding gun control statistics and media reporting of gun crime and media coverage of guns in general.

Personally, I keep my .30-06 stored under my bed with the bolt hidden and the ammo in an entirely different location. Not much good to stop the burglar, but I'm ready for the militia call up! I'm debating between a .45 pistol (for bear protection while hiking) and a 9mm (personal and family defense) for my first pistol.

We need to attack absurd positions, not debate them. That we need guns to ensure our rights and protect us from the government is like saying we need to debate the flat earth society.

One could argue that the 2nd Amendment's effectiveness can be measured by the fact that this opinion exists today.

[Jesurgislac]

Bearing arms in a militia is a legal duty, not a right.

Not according to a literal interpretation of the Second Amendment. Which I thought was something you were all for?

True, a well-regulated militia would not permit someone to serve/bear arms who was plainly not fit to serve - physically incapable, mentally incapable, morally incapable. Homophobic bigots argue that LGBT people are one or more of the above: but armies from the UK to Israel can show otherwise, as of course can the many LGBT soldiers in the US military who served in the closet and came out only on retirement.

[stonetools]

The Swiss example seems appropriate as a vision of what the founders intended. There, a person is allowed to own ONE semi-automatic weapon which is kept at home, unloaded and locked. To carry a firearm in public, you have to satisfying the following requirements:

* The ammunition must be separated from the gun, no ammunition in a magazine.
* The transport has to be direct, ie:
o For courses or exercises hosted by marksmanship, hunting or military organizations,
o To an army warehouse and back,
o To and from a holder of a valid arms trade permit,
o To and from a specific event, e.g. gun shows.

http://en.wikipedia.org/wiki/Gun_politics_in_Switzerland

I'm perfectly OK with this, but its miles away from the NRA ideal in which anyone can own and carry around any number of firearms without restriction or registration. So lets have a well regulated militia-Swiss style!

[Katherine]

Oh, SH, surely you know my answer on gay rights: the right is equal protection of the laws, enumerated in the 14th amendment.

You: but it doesn't mention gay rights.

Me: It doesn't mention race either, and yet we think it forbids racial discrimination.

You: But the original expectations & historical context shows that the clause was about forbidding discrimination against freed slaves.

Me: The original expectations were mixed as to de jure segregation, and yet you concede that it does prohibit segregation. The original expectation was that it allowed miscegenation laws, and yet you concede that Loving was correctly decided. The historical context says nothing about treating discrimination against a privileged white majority the same as discrimination against freed slaves, and yet you think affirmative action is unconstitutional. In those situations, and for the first amendment, and the second amendment, you recognize that the text & underlying principles can be legitimately applied beyond the original expected application. So why is doing the same thing here suddenly a tyrannical usurpation rather than a good faith interpretation that you don't agree with?

I know you have a response to that too--and I apologize if I got some of your previous responses wrong. But look, we've been through this about 100 times.

[Brett Bellmore]

"Not according to a literal interpretation of the Second Amendment. Which I thought was something you were all for?"

I am all for a literal reading of the Second amendment, which if you look it up, does NOT include the phrase, "the people's right to bear arms in a militia", but instead guarantees a right which is NOT so qualified.

[Sebastian]

"I know you have a response to that too--and I apologize if I got some of your previous responses wrong. But look, we've been through this about 100 times."

Sure we have, and I know it is exasperating. And there we are.

But when someone here (in this case publius) expressly advocates an anything goes standard whenever 'ambiguity' exists seems to me worth arguing against.

"The historical context says nothing about treating discrimination against a privileged white majority the same as discrimination against freed slaves, and yet you think affirmative action is unconstitutional."

This is the type of thing that worries me. The step from all citizens getting the equal protection of the laws to "some citizens get special protections of the laws" is a rather large one.

And for the record, affirmative action by private parties is fine. Affirmative action by the government violates the amendment.

"So why is doing the same thing here suddenly a tyrannical usurpation rather than a good faith interpretation that you don't agree with?"

Because your 'the same thing here', isn't.

It is the same thing that Brennan did with the death penalty. When you use extensions so far as to reach conclusions which are directly opposed to the text of the Constitution--that the death penalty is always illegal, or that racial discrimination is permitted (and some say mandated) by the 14th, you are going too far. You are going too far well before that, but definitely at that point.

[gwangung]

I am all for a literal reading of the Second amendment, which if you look it up, does NOT include the phrase, "the people's right to bear arms in a militia", but instead guarantees a right which is NOT so qualified.

Given the vagaries of grammar, that is unfortunately debatable.

[Brett Bellmore]

Everything is debatable, but frequently one side in the debate is wrong. What Jes proposes is a constitutional right to bear arms in a militia. It is well established that nobody has a right to be in the militia. Being in the militia isn't a right, it's a duty, and the 2nd amendment didn't change that.

What Jes really wants to to, of course, is to transmogrify the 2nd amendment's right to keep and bear arms, into a 'right' to keep and bear them, for the government, when and only when the government wants you to.

It's an elementary matter that a "right" has to be interpreted as something which can reasonably be characterized as a right. Jes is trying to turn the 2nd amendment right of the people into a restatement of the obvious: That the government is entitled to have it's soldiers armed.

You have to be pretty desperate to avoid reading the 2nd amendment as meaning something meaningful, to think that reasonable.

[Katherine]

Well, sidestepping the gay rights, affirmative action & capital punishment debates, "if the text is ambiguous, anything goes" can mean different things. If it means "if a clever advocate can come up with a colorable argument either way," then yes, that's too far. If it means, "after careful consideration of text & precedent, I the judge genuinely believe that the text does not answer this question & so I'm going to weigh the policy implications", that's a different story. But I would put it differently than publius. I would say not that "the text is ambiguous, so policy decides it," so much as: the text & our precedents use terms that it is impossible to apply without sometimes making moral & policy judgment calls, and it's better to be honest about the fact that we're doing so.

[hilzoy]

Ah, this again. Seb:

"I think a lot of it has to do with questions of fact vs. morals. On a question of fact, the court can take judicial notice of a change in facts.

So take for example a theoretical Constitutional right of minors not to have poisons sold to them. If the writers of the text believed that mercury was non-poisonous, but we later found out that it was in fact poisonous, the Court could take judicial notice of the discovery. "

I don't think this is about facts v. morals at all. It's about the meaning of a term vs. its extension (the things that term is rightly applied to.)

Thus, a "poison" (quickly opens Merriam/Webster) is"a substance that through its chemical action usually kills, injures, or impairs an organism". That's what the term "poison" means. If the people who drafted some law had referred to "poisons", and it turned out that some substance they thought was innocuous (e.g., lead paint) was in fact a poison, then whatever that law said about "poisons" would apply to lead paint, with no change of meaning whatsoever.

Likewise, if the people who write some law use some moral term, and we come to believe that something they thought that term did not apply to is in fact covered by it, then we can, without change of meaning, use that term to refer to it. It is exactly like "poison".

Thus, suppose some law bans "unions abhorrent to Nature", and the people who draft that law believe that gay marriages are, in fact, such a union. Then suppose that we, having considered e.g. the gay penguins, etc., come to believe that they are in fact not abhorrent to nature. (Or maybe we come to think that nature is not capable of abhorrence.) Then we can conclude that gay marriage is not banned under that law, with no change in meaning.

To suppose that moral terms are different from other terms in this respect, I think you'd have to think that unlike all other terms, what a moral term X actually means is not, well, X, but "whatever the people who wrote the law/Constitution/whatever thought was an X."

But why would one think that? If (to use my hypothetical example) some legislative body wanted to ban all the unions they took to be abhorrent to nature, they could just have done so explicitly. That the (imaginary) statute doesn't ban "unions we, the present legislators, think are abhorrent to nature, but "unions abhorrent to nature" suggests that they were trying to ban the unions that actually are abhorrent to nature, whatever anyone might think about the matter.

To my mind, interpreting "unions abhorrent to nature" as if it meant "unions we, the present legislators, think are abhorrent to nature" is a flat misinterpretation, for exactly the same reasons that it would be a flat misinterpretation to say that "poisons" actually means "those substances that the people who wrote this law think, however wrongly, are substances that through their chemical action usually kill, injure, or impair an organism." That is not what "poison" means.

[Katherine]

Also, while a change in morals is not exactly the same thing as a change in facts, it is often based upon a change in facts rather than public morality just sort of arbitrarily swinging in the breeze.

[gwangung]

Everything is debatable, but frequently one side in the debate is wrong.

It is unclear to me that this is one of these times, however.

Mind you, I lean more to the side of less control, but after this debate, I do not find it that unambiguous.

[Jesurgislac]

I shall bear in mind for future reference that you can get conservatives who normally argue that the Second Amendment means a right to bear arms backtracking and flailing a bit and arguing that there's no "right to bear arms" .... simply by pointing out that a strict interpretation of the Second Amendment makes all that opposition to gays in the military unConstitutional. ;-)

[Sebastian]

"Likewise, if the people who write some law use some moral term, and we come to believe that something they thought that term did not apply to is in fact covered by it, then we can, without change of meaning, use that term to refer to it. It is exactly like "poison"."

I agree entirely. But the society changes and the court follows the change. That is why if the US accepted gay marriage for a generation and then tried to take it away, I think there could be a problem under the 14th amendment. But the court can't lead in cases like that. In the poison case a new discovery can come to light and the court can take notice of it the moment it happens.

In the "the society has changed its morals" case, the Court can't lead because it can't legitimately act until the society has actually changed its morals.

[Katherine]

(For example: my view of whether it's ever morally justifiable for the United States to authorize torture is very much informed by the facts about what happened when we did authorize it. My view of whether a private right of gun ownership is necessary for a "scheme of ordered liberty" is informed by the factual existence of liberal democracies that ban gun ownership & remain liberal democracies, and the factual existence of tyrannical dictatorships where every family owns a Kalashnikov or an AK-47. etc.)