Something Old, Something New

by publius

Discussing the recent gun ban oral arguments, Eugune Volokh and Glenn Reynolds both criticize Dahlia Lithwick’s statement that the Roberts Court is posed to embrace a “new constitutional right.” Volokh writes:

To some people, the Second Amendment is not a new constitutional right. It's an old constitutional right, right there in the text.

Reynolds adds:

To me it says a lot about modern legal thinking that a right explicitly mentioned in the Constitution can somehow be characterized as "new" based solely on what the Supreme Court does.

To me, though, Lithwick gets this part exactly right (Volokh has more extensive critiques of her article that I’m not tackling). In this specific critique, Volokh and Reynolds are confusing “is” with “ought.”

To back up, the meaning of constitutional text isn’t self-evident. To be blunt, the Constitution means what the Court ultimately says it means. We can say “First Amendment” all we want, but it’s ultimately the Court that defines the scope and meaning of the “freedom of speech” text as applied to various types of circumstances (e.g., Bong Hitz 4 Jesus, crowded theater, libel, etc.). Now maybe you like this, and maybe you don’t. But that’s the way things have been for some time.

In this sense, the “individual rights” interpretation of the Second Amendment is absolutely a “new” constitutional right. Courts have traditionally adopted a “collective/militia” interpretation. Maybe that’s good, maybe it ain't. But that’s been the traditional judicial interpretation.

Lithwick is therefore correct to say that, if the Court adopts an individual-rights interpretation, that would be a “new” constitutional right for all practical purposes. The right, remember, depends on what the text actually means in practice. To say that this is an “old” right simply assumes that your reading of the text is correct. And maybe that reading should be adopted, but that’s not what courts have traditionally done.

Comments

[Jesurgislac]

Brett: Jes, you do realize, don't you, that the high price of these drugs is almost entirely due to their [il]legal status? Very few people couldn't afford currently illegal drugs if they were legal.

I have no idea whether that's true or not, Brett, and I suspect you don't have much notion either, but whenever someone says "very few people couldn't afford that!" I want to know on what income they're making that estimate. We actually don't know what the free market in addictive drugs that were being sold by organised crime and have become legal would look like* - but frankly, I had much rather a heroin addict was receiving their supplies free from their doctor than that they were buying it, even if the dealer was legal. This has the additional benefit that it pretty much completely removes the profit motive from selling drugs/providing a first free sample.

*Except by looking at what happened to aloohol in the US after Prohibition was repealed.

[Gary Farber]

Sebastian, I'd be appreciative if you might be so kind as to respond to my queries here and here, when you get a moment.

I was more than a little taken aback at your series of responses directed to me that seemed to have no connection to anything I've said either here or at any time about my opinions about judicial philosophy, or the Second Amendment.

Thanks muchly.

[Sebastian]

Innocent people get killed in the drive by shootings, Brett. But you just went overboard, you do have a good point. The drive-by shootings tend to be gang, which is to say drug-trade, related. So innocent people are getting hurt now, but that doesn't detract from my point that legalization would tend to reduce that problem.

[Jesurgislac]

Sebastian: So innocent people are getting hurt now, but that doesn't detract from my point that legalization would tend to reduce that problem.

Yes, combined with a public health program, it would. (I mention this because we're seldom so nearly in agreement.)

[Sebastian]

Gary, you defended Lithwick and Publius and the framing of the discussion as “for all practical purposes”.

If this was not agreeing with publius that “for all practical purposes” extends to blue=red in the legal arena, I apologize for overreacting.

Do you agree that “for all practical purposes” extends to the blue=green cases, or did I inappropriately sweep you up in that part of the discussion?
And to reiterate my point on that: Judges can rule that blue=red. They can write those words on a paper, no one can stop them. But if they do so, they have gone beyond their legitimate role. If they do so, they are objectively wrong. When they do so regularly, they destroy the trust in the rule of law. But
Blue does not equal red. Judges saying that it does, doesn’t make it so even in law.

[Brett Bellmore]

I'm not asserting that gun control has caused D.C.'s problems, which existed before they tried gun control. (Though I'm open to the possiblity that it's made them marginally worse.) I'm pointing out that gun control demonstrably can't solve D.C.'s violent crime problem, that there's no reason to think that it even contributes to a solution. You can't justify impinging on the rights of the innocent by imposing measures Which Don't Work. Heck, you can't justify infringing privileges on that basis!

D.C. has a vastly worse violent crime problem than it's near neighbors, which tells us there ARE factors which can locally influence crime for the worse, even if gun control can't do it for the better. Perhaps those factors should be addressed, instead of making some people feel better by disarming victims in the name of inconveniencing their attackers?

History shows that assembling a lot of single, idle, young men in one place is a really, really bad idea. D.C. needs to either find those guys something productive to do, or disperse them. It's not the sort of thing local pols like, but my proposed suggestion for high crime ghettos is to pay people to move out of them. Resettlement.

Paying people to move doesn't violate the rights of the innocent, and it only leaves local politicians worse off. My heart bleeds for them, really it does.

[Gary Farber]

"And to reiterate my point on that: Judges can rule that blue=red. They can write those words on a paper, no one can stop them. But if they do so, they have gone beyond their legitimate role. If they do so, they are objectively wrong."

I do not disagree with this principle, Sebastian. I agree with it.

This doesn't mean we'll agree on all the particulars of when either of us thinks that an assertion passes the blue=red threshold, to use your terminology, but I agree with the principle.

I've never said otherwise, anywhere, so far as I know.

I otherwise agree with what Hilzoy wrote here at 11:03 a.m., yesterday, and here the day before, and earlier.

[Sebastian]

Ok, I'm sorry Gary.

[Phil]

History shows that assembling a lot of single, idle, young men in one place is a really, really bad idea. D.C. needs to either find those guys something productive to do, or disperse them. It's not the sort of thing local pols like, but my proposed suggestion for high crime ghettos is to pay people to move out of them. Resettlement.

Uh-huh. Is it OK if we send them all to wherever it is you live? No? Yeah, that's what I thought.

[Gary Farber]

"Ok, I'm sorry Gary."

Thank you, Sebastian.

"Uh-huh. Is it OK if we send them all to wherever it is you live? No? Yeah, that's what I thought."

To try a more generous interpretation, Brett, would you sign on to giving everyone meeting certain qualifications in an area found to be high-crime, urban, and economically disadvantaged -- phrase this as you like -- a voucher for enough money (structured as you'd like) to move to a non-high-crime, non-economically-disadvantaged, area of their choice, and purchase an affordable home there?

Phil, would that be fine with you?

[Brett Bellmore]

"Is it OK if we send them all to wherever it is you live?"

Nope, that would defeat the purpose of dispersing them. But a few? Sure, why not?

[Brett Bellmore]

"Brett, would you sign on to giving everyone meeting certain qualifications in an area found to be high-crime, urban, and economically disadvantaged -- phrase this as you like -- a voucher for enough money (structured as you'd like) to move to a non-high-crime, non-economically-disadvantaged, area of their choice, and purchase an affordable home there?"

That's about what I'm proposing, yeah. With the constraint that there be some ceiling on how many could move into a given area under the program. Don't want to move the ghettos around, after all, we want to get rid of them.

[Mis En Place]

Well actually, Texas. Slightly higher murder rate than much of the country (thank you cold northern states for lower our average), much lower murder rate than Washington DC.

Why compare Washington, DC to a state? Why not compare it to a city such as New Orleans or St. Louis?

[Sebastian]

Ok, Houston and Dallas have gun laws much less restrictive than DC. And they have much lower gun crime rates. (Practically every city does, DC is ridiculous.)

[tgirsch]

This hasn't gotten a lot of attention here, at least not in the comments I've slogged through yet, but in all the discussion of the meaning of words and phrases, nobody has yet pointed out that in 18th-century English, to "bear arms" didn't mean to carry a weapon around with you; it meant something closer to "to fight."

My non-lawyerly take is that the second amendment does in fact guarantee an individual right to own weapons, for the purpose of the common defense of the country (militias) and also to provide for the possibility of rising up against a corrupt government. If personal defense was high on the Framers' list, I'm not aware of it.

The devil, of course, is in the details of how this gets applied to modern society, as countless commenters have pointed out already here.

My problem with the second amendment is that its ardent proponents pretend that the meaning of the amendment would be absolutely unchanged if you deleted everything before the second comma, whereas its ardent opponents tend to pretend that the phrase "the right of the people" doesn't exist there.

Real life is a lot more gray than that.

Just my $.02.

[Mis En Place]

Ok, Houston and Dallas have gun laws much less restrictive than DC. And they have much lower gun crime rates. (Practically every city does, DC is ridiculous.)

Certainly New Orleans and St. Louis have less restrictive gun laws--why are gun crime rates higher there than in Washington, DC?

If more restrictive gun laws lead to more gun crime, why does New York City have a relatively low gun crime problem?

[Brett Bellmore]

"but in all the discussion of the meaning of words and phrases, nobody has yet pointed out that in 18th-century English, to "bear arms" didn't mean to carry a weapon around with you; it meant something closer to "to fight.""

That's 'cause people try to avoid pointing out things that aren't true. One of the Heller briefs went to this specific point, proving that "bear arms" was used in the sense of carrying a gun, for civilian as well as military purposes, both in common discourse AND in statutes.

[Mis En Place]

tgirsch: I echo your non-lawyerly analysis.

If the Framers envisioned an individual right to guns, why did they include the "well-regulated militia" language? They could have easily used language that was clear and unambiguous.

[Jesurgislac]

Last time we had this discussion I think I pointed out that the Second Amendment may very likely have been intended to set up a society in the new US something like Switzerland is today, where everyone who can is expected to be part of a well-organised militia.. but that 2ndA zealots seem to have turned "the right to bear arms" into something which has no bearing on the formation of well-regulated militia, but simply a civil right in and of itself, without function or use except as a brown M&M civil liberty.

[Jesurgislac]

Mis En Place: If the Framers envisioned an individual right to guns, why did they include the "well-regulated militia" language?

Considering it historically, and looking at the parallel of Switzerland where an individual right to own guns is tied to the formation of well-regulated militia, it was because in the 18th century the most immediate way of being able to quickly raise a volunteer army to defend the country in event of invasion, was to have every citizen (envisaged then, of course, as every white man) in possession of a gun that could be used to kill and that the citizen knew how to use.

Back in the 15th century in England, it was the law that every free man over the age of 14 had to own a longbow and had to practice with it for an hour or two every Sunday. Same kind of deal.

Switzerland has stringent gun control laws: if you're not fit for a militia, they don't particularly want you to own a gun.

[MTCicero]

And you teach philosophy??? God help us all.

[MTCicero]

And you teach philosophy??? God help us all.

[Jesurgislac]

No, I don't. Does anyone on this thread teach philosophy? MTCicero, can you outline what kind of philosopher you're looking for?

[Jay Jerome]

Brett Bellmore: "One of the Heller briefs went to this specific point, proving that "bear arms" was used in the sense of carrying a gun, for civilian as well as military purposes, both in common discourse AND in statutes."

That's one opinion...

Here's another, from the March 18, 2008 hearing transcript on that subject (full transcript here):

MR. DELLINGER: -- the second clause, the phrase "keep and bear arms," when "bear arms" is referred to -- is referred to in a military context, that is so that even if you left aside -
JUSTICE KENNEDY: It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?
MR. DELLINGER: That is not the discourse that is part of the Second Amendment. And when you read the debates, the congressional debates, the only use of the phrase "keep and bear arms" is a military phrase...

[hilzoy]

Well, I teach philosophy, so I assume MT Cicero was referring to me. It would help if I had some clue what I said that s/he takes issue with, though.

[Slartibartfast]

I was not going to out you as our resident philosopedant, I swears.

[trilobite]

re resettlement, it's no crazier than busing. I remember that 15 years back or so, Chicago was fighting about a million NIMBY suits to institute a policy of distributing Section 8 housing throughout the city instead of concentrating it in giant housing projects (i.e., dumping grounds). Theory was that distributing the housing would break up gangs and give residents a chance to find jobs. Don't know what the results were.

[Sebastian]

"Certainly New Orleans and St. Louis have less restrictive gun laws--why are gun crime rates higher there than in Washington, DC?

If more restrictive gun laws lead to more gun crime, why does New York City have a relatively low gun crime problem?"

I don't make that claim. My claim is that very tight gun control has not lowered the crime rate much (if any).

You can look at the numbers here: Crime Rate By City

Essentially it looks like crime problems and gun control are independent--you see low control areas all over that list and high control areas all over that list.

We are talking about restricting a Constitutional right, so 'uncorrelated with solving the problem the restriction is supposed to solve' isn't very compelling.

[Slartibartfast]

I apologize for "philosopedant". Somehow I got by -ants mixed up with my -agogs.

[Jesurgislac]

I kind of liked it, if it means "someone who philosophizes while walking".

[hilzoy]

Slarti: it's fine. A lot of philosophers are pedants. Just don't tell us I said so.

(When we are, we're pedantic in an endearing way. Or so I think.)

[Brett Bellmore]

Jay, no, Dellinger was expressing an opinion; http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1086176_code47512.pdf?abstractid=1086176&mirid=1>This
is what's known as "evidence".

As you doubtless know, you can't, technically speaking, prove that there are no examples of X, but you can prove, by providing one or more, that there ARE examples of X. Dellinger was wrong, and what's more, he almost certainly knew it when he argued before the Court. The only reason I don't say he lied about it is that it's possible he was careful to remain unexposed to any of the contrary evidence, and delegated reading the opposing briefs to staff.

[tgirsch]

Brett:

That may indeed be evidence, but so is this.

[Gary Farber]

I have no dog in this fight, and no opinion on the question, but I'll observe that Garry Wills is someone I hold in the very highest respect as a writer, researcher, thinker, and historian.

It's just a general observation; nothing more. That is all.

[Brett Bellmore]

Oh, joy, Wikipedia. Somewhat like my cousin's husband, I love it, but never, ever rely upon it.

As I pointed out above, the claim that there are no X is adequately disproven by merely producing examples of X. This is so no matter how many guys with initials after their name assert there is no X. One black swan counts more than the output of a thousand naturalists.

[Phil]

To try a more generous interpretation, Brett . . . Phil, would that be fine with you?

1. Brett's opinions are not the kind that engender generosity in me. Sorry. (NB: I'm not actually sorry.) Back during the massive affirmative action thread, he warned us repeatedly as to how we're "playing with fire" by "antagonizing" white people; now we're warned that the mouthbreathers in the militia movement are going to turn us into Northern Ireland if we don't cater to their particular interpretation of one particular amendment. It's almost as if Brett hopes for violent action by dumb white people. So, yeah, ungenerous.

2. No, it's not particularly OK with me, as I'd rather those cities be given the resources to solve the problems at their sources rather than make people move out of what may be the only homes they've known, with all that that entails in terms of breaking up families, traumatizing kids, etc.

3. What do we propose to do with these "ghettoes," after we empty them of everyone? Just leave them empty? They'll be filled with squatters and the homeless in no time at all, which creates crime problems of its own. Raze them to the ground? To what end? Fill them with rich-people condos?

[Brett Bellmore]

"rather than make people move"

I did not, you will note, suggest that we "make" anybody move.

"What do we propose to do with these "ghettoes," after we empty them of everyone?"

There used to be these things called "ghost towns". Terribly tragic, you really had to feel for those empty buildings. I find empty lives more tragic.

[Phil]

Ghost towns in the middle of major American cities. Brilliant. You're a policy visionary, Brett. Why an urban planning firm hasn't snapped you up is truly a wonder.

[Brett Bellmore]

Ghost towns in the middle of major American cities would be better than what we've got now, Phil. Got to decide which you value more, the cities or the people.

[russell]

I kind of liked it, if it means "someone who philosophizes while walking".

I believe that is a philosophambulator, or, in the Italian, philosophandiamo.

Thanks -

[Phil]

Ghost towns in the middle of major American cities would be better than what we've got now, Phil. Got to decide which you value more, the cities or the people.

Yes, nothing helps the residents a major American city succeed more than gigantic tracts of real estate occupied by empty, crumbling buildings. When I think "successful cities," that's the first image that pops to mind.

Got to decide which you value more, the cities or the people.

Helping them out where they are not an option, huh? And won't all of this antagonize the white people?

[russell]

History shows that assembling a lot of single, idle, young men in one place is a really, really bad idea.

Bring back the CCC.

No need to 'resettle' the entire community, just get the young folks (mostly guys) with nothing constructive to do out of there and give them something useful to do.

Pay them a few bucks, feed them, and give them clothes and a place to sleep and take a shower. Let them plant trees, build useful stuff, and mow highway verges. Some of them will pick up some good trade skills. That's how my stepfather learned to operate heavy equipment.

Not required, optional. It will give young folks that just want to get the hell out a place to go and an opportunity to get some simple, constructive life skills together. If they put in a year or two, kick in some money for college.

It's not like there aren't things that need doing.

Just a thought.

Thanks -

[JanieM]

Russell -- interesting idea, and it brings back memories. My dad -- son of Italian immigrants, never been anywhere in his life except his small Ohio home town -- did a stint in the CCC in Idaho when he was about 18 -- i.e. 1939 or so. Afterwards he sailed on an ore boat on the Great Lakes, then joined the Navy, served on a submarine tender, and spent some months in Japan after the surrender. He was never in combat, and if he had been his stories might have been different, but my memory is that his time in the CCC was as vivid a memory as all that came after. It was a huge adventure for him, and he was proud of having done that work. I don't know what he learned in the CCC and what he learned elsewhere, but he was pretty handy in many ways.

Of course, it's a different era now, so who knows. And -- I suppose this is OT, so I should stop.

You're sure right, though. There are plenty of things worth doing....

[hilzoy]

JanieM: don't stop. For my money, memories of the CCC beat fantasies of relocating the entire populations of inner cities every time.

[Brett Bellmore]

"Yes, nothing helps the residents a major American city succeed more than gigantic tracts of real estate occupied by empty, crumbling buildings."

Helps more than terrifyingly high violent crime rates, I assure you.

Good point about the CCC, though. Much as I loath his memory, that was one thing FDR got right: Make people work for their dole, even if it's make work, so long as it teaches them skills.

[gwangung]

Hrm. There's more than a kernel of worth in what Brett's talking about. I've always felt that antisocial behavior can persist if it is positively reinforced, and one way of doing that is to let concentrations of poverty fester in urban settings.
And empty rotting buildings is far from the worst thing that could happen. (There is the matter of what forces keep them empty and rotting, for example...)

[JanieM]

Thanks, Hilzoy. It gives me an opening to respond to Brett's suggestion that people did "make work" in the CCC. In a general way I have no idea; I've never studied those programs in detail. But I remember hiking out west, long ago when my knees were still young, and using trails and bridges that had been built by the CCC a generation before. That doesn't seem like "make work" to me.

As Russell pointed out and I already seconded once, it's not like there aren't plenty of things that need doing. There's no need to resort to "make work."

[Gary Farber]

"2. No, it's not particularly OK with me, as I'd rather those cities be given the resources to solve the problems at their sources rather than make people move out of what may be the only homes they've known, with all that that entails in terms of breaking up families, traumatizing kids, etc."

But since that's not on the table at the moment, given a choice between letting people have that choice, and not, you'd not want them to have the choice of the money?

It's not like the proposal is to force anyone to accept, after all.

[russell]

There's no need to resort to "make work."

My old man built highway bridges in GA and the Carolinas.

My stepfather worked on public land and public park improvements in upstate NY.

More recently, a friend of mine worked on a public works project for a while planting sapling trees in the Smokies.

This is all really useful stuff.

Without really wanting to commit a total threadjack, I'll just point out that social engineering via 'relocating poor urban communities' is one of the things that gave us the islands of dire poverty that present such a problem now.

As Brett notes, it's primarily the younger folks, and primarily the young men, with nothing constructive to do and not much to look forward to that create the really toxic problems. Giving them something constructive to do would probably go a long way.

My CCC suggestion was kind of pulled out of my hat. I had just been to Edge of the West and they were talking about it. Just thought I'd put it out there as an alternative to emptying entire communities in the interest of social improvement.

Thanks -

[tgirsch]

Brett:
Oh, joy, Wikipedia.

Problems with Wikipedia aside, that particular article is quite well sourced. You see those numbers in superscript? The ones in blue, that are underlined? Those take you to the source material, if you're skeptical. It's clear that most (but not all) of the scholarship, including contemporary writings of the framers, supports my assertion.

As I pointed out above, the claim that there are no X is adequately disproven by merely producing examples of X.

That's lovely. Now kindly point out where I made an absolutist statement of that kind. Oh, that's right, I didn't.

So in just five short sentences, you manage to attack the source and attack a straw man, while conveniently avoiding the substance. Bravo. That's impressive, even for you.

[dr ngo]

Call me, Ishmael.

[felix culpa]

Strong affirmative to Gary on Garry. Love this quote "One does not bear arms against a rabbit.’From the Wikipedia">http://snipurl.com/22j50">Wikipedia cite above.
Re the CCC there is precisely this sort of suggestion raised in A Green Corps by Bill McKibben at The">http://snipurl.com/22j6a">The Nation. Ther’s a small NGO here in Toronto concerned with getting kids out of the projects into the countryside to learn outdoor skills and offer them an alternative to peer pressures. Had one of the kids staying here, downtown but across town, fresh out of jail (for selling crack). Good kid, nice to have around. So yeah; good idea..

[Slartibartfast]

I kind of liked it, if it means "someone who philosophizes while walking".

I was going to go with "philosopede", but no.

[hilzoy]

felix culpa: heh. My sister used to work with kids at a project, and she and I took her kids for a camping trip in Maine. They were drop-dead terrified at first: completely out of their element, and scared of everything that moved. We went to see my cousin Tony's farm, and only one or two of the very bravest would eat things, like raspberries. It was not clear that they had previously grasped that fruits and vegetables grew somewhere. One finally said: so it's like you have a supermarket in your yard?

Swimming (actually, walking maybe knee-deep in the water) was fun: lots of fear of sharks, and absolute terror at the little crabs who would scuttle across the sand. (And I do mean little crabs. Maybe an inch across.) Big shrieks!!!

By the time we went home, though, they had begun to acclimate, and to have a really good time.

[felix culpa]

Wonderful and lovely.

[Jesurgislac]

I'd add that "Make people work for their dole" as Brett says, is really a very different scenario from "giving long-term unemployed a work opportunity".

Brett's strategy for clearing the inner cities sounds pretty much like Hurricane Katrina, minus the drowning.

[liberal japonicus]

We went to see my cousin Tony's farm, and only one or two of the very bravest would eat things, like raspberries.

That reminds me of Jamie Oliver's School Lunch, where he works with low income schools in the UK to improve eating habits, with several scenes like that.

[Phil]

"Yes, nothing helps the residents a major American city succeed more than gigantic tracts of real estate occupied by empty, crumbling buildings."

Helps more than terrifyingly high violent crime rates, I assure you.

Yes, it's not as if leaving a large portion of a city empty and crumbling has its own implications for property values, infrastructure, crime rates and the like. Nope. Those problems all go away immediately if you just empty the ghettoes. It's magic!

[russell]

One does not bear arms against a rabbit.

Meet Elmer Fudd.

Re the CCC there is precisely this sort of suggestion raised in A Green Corps by Bill McKibben at The Nation.

Thanks for the link, I'll check it out. McKibben's a good guy.

Thanks -

[rightwingprof]

If the Constitution said, "The right of men to marry men (or women to marry women) shall not be infringed," you would have a point. However, it does not, so your argument is specious.

[bc]

resident philosopedant, philospede, etc.

what about resident philosoblogger? Or, to be more Greek about it, philosobibliographos or philosoephemerigraphos (love of wisdom/writer of journals)

[Jeff Dege]

Rights aren't laws. They aren't legal constructs. They are meta-legal constructs, which inspire the law (or resistance to it). Rights are inherent in our nature as human beings, independent of what we believe the law to be.

Or, as Alexander Hamilton wrote: "The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written as with a sunbeam in the whole volume of human nature by the hand of Divinity itself, and can never be erased or obscured by mortal power."

Our understanding of our rights is as imperfect as is our understanding of our nature, but neither our rights nor our nature change, as we gain in understanding or lose it in the pursuit of popular delusion.

[gwangung]

If the Constitution said, "The right of men to marry men (or women to marry women) shall not be infringed," you would have a point. However, it does not, so your argument is specious.

Obviously, you don't believe in the 10th and 14th Amendments.

Long history of that, too....