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.
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.
I'm so tired of lawyers. Constitutions don't work.
Posted by: now_what | March 22, 2008 at 01:36 PM
I disagree entirely. It isn't a new right, it is indeed the right that has been there all along.
"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.)."
For legal purposes only the Constitution means what the Court ultimately says it means. But if they say stupid things, they aren't changing the meaning of the document, but rather its legal effect. If they later correct the stupid thing they said before, they still aren't changing the meaning of the document, but rather its legal effect.
If I say that Hamlet is really about controlling Iraq, I'm wrong. If I were the legal arbiter of literary texts, I'd still be wrong even if everyone had to act as if I were right.
"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."
Here you're wrong. The Second Amendment is pretty obvious. So much so that it hasn't been litigated much compared to much of the Constitution so there isn't much Court-talk to go on. The "collective/militia" interpretation in the sense used by anti-gun legal scholars hasn't been adopted by the Court at any time. They argue that it has been hinted at by some of the very few cases there are, but it doesn't exist as a Court doctrine in your sense of "the Constitution means what the Court ultimately says it means".
"And maybe that reading should be adopted, but that’s not what courts have traditionally done."
No, the collective/individual right distinction is a lightly litigated area. Controlling Supreme Court law on the topic has been decided on other grounds. The closest you have is the shotgun case which suggested that because a sawed off shotgun could have no military use (wrong on the facts but whatever) it couldn't be protected under the 2nd amendment. (Miller?) I'd look it up further but I'm off to do fun weekend things. But Volokh has many posts on the 2nd amendment that are worth reading on his site.
The Supreme Court has not definitively ruled one way or another on the collective/individual distinction. My take on that is that it hasn't needed to in the past because the collective reading is an enormous and ahistorical stretch. It is likely to AFFIRM that there is an individual right in Heller. and like all individual rights it is likely to find that it is not a completely unlimited right.
Posted by: Sebastian | March 22, 2008 at 01:44 PM
I've got some clubs, but my reading of history says that constitutions do better, and that there are always people preaching doom in the face of hundreds of years of constitutional success at doing better than just clubs.
Posted by: Gary Farber | March 22, 2008 at 01:47 PM
Sebastian, just because you say the Second Amendment is clear doesn't make it so. The very fact that people have been fighting over its meaning for the last couple hundred years sort of belies the claim that it's clear, as a matter of fact. It's clear to you because you're reading it the way you want to, but that doesn't mean that it's clear in some larger sense.
Posted by: Incertus (Brian) | March 22, 2008 at 01:50 PM
"It isn't a new right, it is indeed the right that has been there all along."
I don't understand the relevance of personal opinion to Publius's point. Can you explain, please?
Either the SCOTUS has previously declared it an individual right, or it hasn't. It isn't a matter of opinion as to whether such a decision was published or not, is it?
Do you have a cite and quote to support the claim, or do you not?
If you do, you're correct. If you don't, you're not. What's opinion got to do with it?
If you've got it, give it.
The question under discussion, after all, "what do I think of the Constitution"?
It's "what has the historic opinion of SCOTUS been?"
That may not be the question that concerns you, but it's the question Publius raises as re Lithwick, and I'm unclear what anyone's personal interpretation of the Contstitution has to do with it in the slightest, other than to try to change the topic.
But I perhaps misunderstand.
Posted by: Gary Farber | March 22, 2008 at 01:52 PM
Jack Balkin makes some interesting points on the matter here.
Posted by: Jim Parish | March 22, 2008 at 01:52 PM
Posted by: Gary Farber | March 22, 2008 at 01:54 PM
"The very fact that people have been fighting over its meaning for the last couple hundred years sort of belies the claim that it's clear, as a matter of fact."
They pretty much haven't been fighting much over it for the last couple hundred years. That is why there isn't much Supreme Court case law on the subject. The fact that the collectivists have to turn so much on Miller (a case from the 1930s which doesn't even decide on the collective/individual distinction) shows that. And when you go back beyond that, you get pretty much nothing.
Essentially the whole anti-gun argument is one Supreme Court case which wasn't decided on those grounds.
Posted by: Sebastian | March 22, 2008 at 01:55 PM
The notion that the 2cd amendment is not an individual right flies in the face of its prominent position in the Bill of Rights. The only interpretation that makes any sense is that the right of individuals to keep and bear arms is necessary so that citizens can form spontaneous militias to fight renegade Indians, criminal gangs, or foreign invaders. But gun control is a huge losing issue for the dems, and don't expect Obama or Hillary to make a big deal over this SC decision when it comes out in June in favor of the individual rights interpretation.
Posted by: Bill_W | March 22, 2008 at 02:08 PM
"Jack Balkin makes some interesting points on the matter here."
Cool; "vicinage" is my new word of the day.
Posted by: Gary Farber | March 22, 2008 at 02:09 PM
"Should be: "The question under discussion, after all, isn't 'what do I think of the Constitution'?"
Yes you're misunderstanding. The question IS "what do I think of the Constitution" because publius is making the claim that until the Supreme Court rules, the Constitution doesn't actually outline any rights.
That isn't how Constitutions work. The Constitution is the operative document, the Supreme Court is supposed to be subordinate to it. Just because the Supreme Court hasn't gotten around to separately declaring an individual right doesn't mean it isn't in the Constitution. How would the Court operate when a new amendment was passed? Did the Constitution have NO RIGHTS until the Supreme Court started ruling?
No, it outlined rights when it was passed.
"Either the SCOTUS has previously declared it an individual right, or it hasn't. It isn't a matter of opinion as to whether such a decision was published or not, is it?"
Right, that is what publius has framed the question as. And then he completely misconstrued the state of actual jurisprudence. The Supreme Court has not ruled on the issue of collective rights vs. individual rights. The closest you get is Miller, which was decided on the grounds that if a particular weapon would be useless for a militia, it is unprotected by the amendment. Whether or not protected weapons are protected for individuals or collectives was not resolved.
Also I note that Miller wasn't even a contested case. There were no briefs or arguments filed for Miller. He abandoned the case and the government surprisingly didn't even fully win then. The case stands at least as much for the proposition that everyone can have military hardware as it does that gun rights are collective. (Which is to say that it doesn't speak clearly on either of those topics).
Publius is arguing that if the Supreme Court has not ruled on a subject, the Constitution does not provide for a right on that subject.
That is ridiculous, as what would would happen if there were an amendment to the Constitution? Wouldn't it provide a right that the Supreme Court would THEN enforce?
He completely inverts the relationship between the Constitution and the Court.
The Court has not RULED for a collective right in any case. The question is open.
When the question is open and then resolved, it isn't the finding of a 'new right'. It is the affirmation of a textual right that had been rarely challenged until recently (IMO--and this is where opinion is coming in--it hadn't been challenged until recently because almost everyone thought it was so obvious as to be a waste of time).
From Miller (the case upon which anti-gun scholars try to create a collective rights argument):
Posted by: Sebastian | March 22, 2008 at 02:23 PM
bill w- that's not actually how some people hink the bill of rights works. people like amar have argued that the original intent/understanding wasn't so much individual-centric, but state-centric (otherwise, they would have applied to states too. instead they're intended to give states ways to protect themselves against the big bad federal government. in this respect, the 2nd amendment makes total sense as a militia provision.
seb - i agree with gary. you're just assuming your interpretation is obvious from the text and then concluding that "therefore, it's old." that's what volokh was doing too, but it doesn't work that. i actually think it's indeterminate - and that there are good arguments either way. but both the text and the amar-type history gives plenty of reasons to think teh collective view is right. at the very least, it's a close call and you're just assuming away the complexity.
Posted by: publius | March 22, 2008 at 02:25 PM
seb - you're letting your gun emotion get the best of you here. i explicitly said that courts currently provide the ultimate meaning - i wasn't endorsing it (actually, i'd prefer to re-introduce legislative interpretation).
but that's a different battle. today, courts decide what the constitution means. you may disagree on normative grounds, but you obviously know how things work. i'm saying "is," and you're arguing "ought."
Posted by: publius | March 22, 2008 at 02:28 PM
reintroduce legislative interpretation?
What do you mean by that?
It doesn't sound right to me. It would mean interpretations change based on who is voted in, perhaps as regularly as election cycles, maybe on the basis of who is contributing the most money to the candidate.
The common law method of developing meaning is a lot more ordered and predictable, somewhat limited by reason.
Posted by: sophie brown | March 22, 2008 at 02:41 PM
sorry - unclear. i meant there are some realms of con law that i think are sufficiently indeterminate that the legislature should essentially become the final arbiter and the courts should defer. in the individual gun right context, i think courts should do precisely this (i.e., defer to legislatures in light of excessive indeterminacy)
Posted by: publius | March 22, 2008 at 02:43 PM
Hypothetically, suppose the Court finds a right for protesters to be present at presidential speeches rather than exiled to "free speech zones" miles away. Have they created a new right, or reaffirmed the First Amendment?
Posted by: Mike Schilling | March 22, 2008 at 02:46 PM
"you're letting your gun emotion get the best of you here"
I don't own a gun, or care to.
"today, courts decide what the constitution means. you may disagree on normative grounds, but you obviously know how things work. i'm saying "is," and you're arguing "ought."".
You say:
"To be blunt, the Constitution means what the Court ultimately says it means. "
You may be overworking 'ultimately'.
If your argument is that the Supreme Court has previously ruled a collective right and that Heller ruling for an individual right would be a change, you are incorrect. The Supreme Court has never held that it is a collective right. You seem to be making that argument, and if you are, you are wrong.
If you are arguing that if the Court hasn't ruled, it doesn't exist, you are wrong because then the Court would never have any basis to rule.
If you are arguing that the Supreme Court just makes things up as they go along and that we only pretend that the Constitution has anything to do with it, you may be right, but that is a completely different argument which would have to be fleshed out more fully.
But so long as you aren't making the latter argument, if the Supreme Court affirms (not reverses previous Supreme Court findings otherwise because they don't exist) that the Second Amendment provides an individual right, it is not creating a new right. It is affirming the same old right that was always there.
The historical evidence is not close. The only anti-gun historical scholarship (Bellesiles) has been firmly discredited as fraud. The Supreme Court case cited by anti-gun lawyers suggests an individual right to bear arms that is limited by what arms would have military use. Transforming that into collective rights language takes mindbending gymnastics. I linked the case above. It is about 3 pages. Just read it.
Posted by: Sebastian | March 22, 2008 at 02:51 PM
Sebastian, this is a piece of ideology important to many.
Publius wrote: "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."
To me, this is a simple observation that "for all practical purposes" the Court has never before ruled that there was an individual right to a gun. And that's all. I don't take it as a constitutional Theory unto itself.
Personally, I have no particular opinion about whether the 2nd was intended as an individual right, or not, and I really just don't care one way or another, hard as that may be to believe.
So to me, I don't see anything unusual in the observation. But to a lot of people, it's an ideological line in the ground, one way or another.
I'm not one of them.
But, fine. Maybe there will be fewer pointless gnu control arguments after this case.
("Pointless" not because the issues don't matter, but because unless you're a SCOTUS Justice, your opinion, for any given value of "you," largely doesn't matter.)
Would save everyone a lot of time better spent on some other eternal argument, I'm sure. Abortion, or the 2000 election, or the merits of the Civil War; whatever. Enjoy.
Posted by: Gary Farber | March 22, 2008 at 03:09 PM
Incertus,
It is quite possible to have an argument where one side favours a position because they think it is good on consequentialist grounds and another side favouring something based on it being the logical result of the constitution - I think that is what we have here.
Such an argument could easily go on for centuries.
So the constitution is pro gun - while what is good for the country is anti gun policy. Both sides then run around pretending that because one argument supports them then the other must too.
Posted by: GNZ | March 22, 2008 at 03:21 PM
I see what Sebastian is getting at but I'm thinking that this is just a matter of semantics. When the Supreme Court put some life back into the Fourteenth Amendment after the Slaughterhouse cases were they creating a 'new' right or just 'discovering' a right that was already there? And does it really matter?
I get Sebastian's point that it's illogical to say that the amendments have no meaning until the Court interprets them but publius is right that for practical purposes they don't mean anything until the Court has spoken.
The real debate is then about what is the 'original' or 'true' meaning of the Second Amendment as contemplated by the Framers. Quite frankly, we'll never know for certain though I personally think there is an individual right but also think that it has to be tied somehow to the 'well-regulated militia' phrase which the Court seems to be ignoring at the moment.
Posted by: Vincent | March 22, 2008 at 03:24 PM
I am SO forming a band, and naming it Pointless Gnu Control.
Posted by: Slartibartfast | March 22, 2008 at 03:27 PM
i honestly don't understand how you're getting these responses from what i arguing. you're arguing with strawmen conceptions of "liberals want to make it up." that's not true, but anyway, it's completely beside the point.
1 - the federal judiciary (i honestly don't know the Sup. Court history) has consistently ruled for collective. previous administrations (prior to this one, sort of) have all done the same. the rights as interpreted by federal courts have been collective
2 - what a right means in practice is what the final arbiter of text says it mean. i'm just talking descriptively here, but you keep trying to drag this into some normative point about how i believe the court makes things up.
just like courts interpret statutes and those are binding, they do the same with constitutions. i suspect you and i are closer on normative interpretation theories than you think, but i'm not anywhere close to making that argument here.
in short, i feel like you're arguing with someone else.
Posted by: publius | March 22, 2008 at 03:28 PM
I think the context of the claim in the Lithwick article is important to this discussion:
One can certainly argue that a ruling that stipulates that the 2nd Am. covers an individual right is creating a "new" right in some sense; but is anyone here saying that Lithwick is justified in suggesting that that's just as "activist" as the sorts of decisions conservative judges criticize?
Posted by: kenB | March 22, 2008 at 03:32 PM
"I get Sebastian's point that it's illogical to say that the amendments have no meaning until the Court interprets them but publius is right that for practical purposes they don't mean anything until the Court has spoken."
That isn't correct. Legislatures are supposed to follow the Constitution too. They shouldn't pass laws that violate the Constitution whether or not the Supreme Court has ruled on the matter.
Presidents are also supposed to follow the Constitution. It would be silly to say that the President hasn't violated the Constitution until the Supreme Court ruled against him. He may get away with it until then. Maybe even afterwards. But that doesn't mean he isn't violating the Constitution until the Supreme Court speaks. And that doesn't mean he has no duty to try to follow the Constitution until the Supreme Court speaks against his actions.
Posted by: Sebastian | March 22, 2008 at 03:35 PM
"the federal judiciary (i honestly don't know the Sup. Court history) has consistently ruled for collective. previous administrations (prior to this one, sort of) have all done the same."
It will take you 3 minutes to get up on the Supreme Court history. I linked the case above. It is really short.
The federal judiciary 'pro-collective' argument comes from that case.
When you read the Miller case, you will see that the idea that it stands for a pro-collective right, is rather silly.
Even if you rely on the Supreme Court arbiter thing, you don't get a collective right.
Posted by: Sebastian | March 22, 2008 at 03:40 PM
From the beginning of organized tournament chess, the rules included this provision: when a player succeeds in advancing his pawn to the last rank, he can promote it to "a piece of his choice". At an international tournament around 1910, a weird thing happened: White chose to promote his pawn to a BLACK Bishop, thus preventing Black from claiming a draw by stalemate. The tournament director was forced to acknowledge that the rules, as written, allowed such queer promotions. The right to promote your pawn to a piece of the opposite color was as unheard-of as, say, gay marriage. Who would ever want to do such a thing? But the rules HAD ALWAYS PERMITTED IT, said the judge. It was not a "new" right.
The romantic myth behind judicial review is that there are NO "new" rights. In this romantic myth, the right to gay marriage was always inherent in the constitution of Massachusetts, but was not noticed until our Supreme Judicial Court bothered to look, a couple of years ago. The whole POINT of legal (as opposed to political) arguments is to demonstrate that the rules ALWAYS SAID you have the right to promote your pawn to a piece of the opposite color, marry a person of the same sex, or own a handgun.
Whether or not you subscribe to this mythology will determine your terminology, with respect to "new" rights. If you think The Law is some immutable Platonic ideal which humans perceive only imperfectly, then judges merely find EXISTING rights when they examine The Law and say things like: "Well what do you know! People ALWAYS had the right to put blogs up on the World-Wide-Web. The right was always there, even if the internet wasn't."
If you're not quite so romantic -- if you think The Law is in fact a fuzzy man-made thing with no independent existence outside the cave -- then of course a right not previously acknowledged is a "new" right, made up by judges on the spot.
Both points of view are defensible. The only laughable thing is the sort of inconsistency which I suspect many gun enthusiasts (and many gay-rights activists) to be guilty of: the inconsistency which says "MY right was always there and the courts finally acknowledged it; YOUR right was recently just made up by activist judges."
-- TP
Posted by: Tony P. | March 22, 2008 at 05:28 PM
I've got some clubs, but my reading of history says that constitutions do better
False dichotomy.
Posted by: now_what | March 22, 2008 at 05:46 PM
what tp said
Posted by: publius | March 22, 2008 at 05:52 PM
I think I take an intermediate position.
I think that it's useful to distinguish two things that courts do. One is to ascertain the meaning of a text. Words do, I think, have meanings: you can't, for instance, say that "religion" means "mammal", and conclude that the first amendment prohibits the state either from establishing an official animal or from keeping animals locked up. e.g. in federal zoos. If a court adopted that interpretation of the first amendment, it would be exactly right to say that they had disregarded its meaning.
The second is to specify its application. This, I think, is not a matter of consulting its meaning. Meanings will only get you so far, and if you try to spell out the meaning of a term that might or might not apply to a given case, you're apt to come up with something that leaves a lot of the questions you need answered open. (E.g., what counts as a "search"? Or "self-incrimination"? Or "speech"?)
What's needed, in such cases, is something more like the regulations that implement legislation than it is like consulting a dictionary. You have to have this kind of specification in order to actually implement laws, and also to get some sort of clarity about what they cover (at least, if you think that legislatures are not likely to foresee all the wacko cases that might arise and come before a court). But this kind of specification is not the same as, and should not be confused with, coming up with the meaning of a statute.
I think it's true of specification that "the" specification of a law does not exist antecedently to court rulings. (Or rather: legislatures can try to specify as much as possible, but they will, inevitably, fail to anticipate all the possible cases, and thus courts will have to carry specification further; and the rights and prohibitions contained in court specifications do not exist antecedently.)
Thus, I think there is no sense in which the meaning of "search" itself determines that when a police officer scans my home with a heat-detecting device that tells that officer whether or not I am growing marijuana in my basement without either the device or the officer having to physically enter my home, my home has been "searched". If the courts decide that "search", in the 4th amendment, covers these cases, it does; if not, not. But that is true precisely because either specification is consistent with the meaning of "search", and some specification is needed in this case.
Saying this allows me to say that words have meaning, and that I don't have to adopt Humpty-Dumpty's attitude towards them, without denying that a lot of the questions courts answer are open until courts answer them. It also allows me to distinguish two very different activities of courts, and say: when it comes to meanings, a judge would be flat out of bounds to disregard them and think "ha ha, this term has no meaning until I decide that it does", while allowing that judicial rulings really do, in a sense, construct reality in other cases (what I've called specification).
It also lets me ask: if meaning does not fully determine interpretation, does that mean that anything goes, in "specification" cases? I think the answer to that question is "no", and that it's easier to answer once you distinguish attempts to discover meanings from attempts to specify terms to deal with ambiguous cases.
I think Constitutional cases are especially tricky, since a court can't toss a bit of the Constitution on the grounds that it's too vague, nor is it always realistic to expect that we will alter it if we don't like their interpretation. I think the 2nd amendment is, in fact, badly drafted, in a way that would have led Congress to revise it if it were a mere law. The problem is that it isn't.
Posted by: hilzoy | March 22, 2008 at 07:15 PM
The only interpretation that makes any sense is that the right of individuals to keep and bear arms is necessary so that citizens can form spontaneous militias to fight renegade Indians, criminal gangs, or foreign invaders.
How spontaneous? May an individual threatened by a mugger and carrying a concealed handgun "spontaneously" form a militia and kill their attacker? At least for me, militia implies some degree of purpose, organization, and discipline.
Posted by: Michael Cain | March 22, 2008 at 07:17 PM
Also, what Tony P. said.
Posted by: Gary Farber | March 22, 2008 at 07:27 PM
If held to the standard of any other right, the second amendment would transparently belong to the individual. We try to pretend that's not what the document actually says because the right to wander around main street with a tripod-mounted machine gun and a bandoleer full of grenades is actually a transparently BAD idea. It's in there because that scenario is not something easily foreseeable to the 18th-century types who wrote the Constitution.
Get rid of the damned amendment already. If this is what it means, then it has no place in a modern society.
Posted by: Anthony Damiani | March 22, 2008 at 07:39 PM
It is interesting that publius and Gary (liberals on this blog) agree with Tony P, since it is a position by which there are no rights other than what judges are (right at this very moment) saying there are.
So please explain why you have a problem with Bush when he 'violates' the Constitution in creative ways that the Courts haven't ruled against yet.
Is it just that you are predicting the Supreme Court will rule against him?
Hilzoy, unless I'm misunderstanding you, the distinction between personal and collective right isn't a specification issue. "The right of the people" is used in the Constitution and all over the 18th and 19th centuries to mean individual rights. The reason the gun cases are so vexing is that turning that into a collective right really does seem like the Humpty-Dumpty logic. The same language is used in the First Amendment, and I strongly suspect that trying to treat "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" as a non-individual right wouldn't go over well.
Treating "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized," as a collective right wouldn't be very exciting either.
Posted by: Sebastian | March 22, 2008 at 07:47 PM
That isn't correct. Legislatures are supposed to follow the Constitution too. They shouldn't pass laws that violate the Constitution whether or not the Supreme Court has ruled on the matter.
Presidents are also supposed to follow the Constitution. It would be silly to say that the President hasn't violated the Constitution until the Supreme Court ruled against him. He may get away with it until then. Maybe even afterwards. But that doesn't mean he isn't violating the Constitution until the Supreme Court speaks. And that doesn't mean he has no duty to try to follow the Constitution until the Supreme Court speaks against his actions.
Look at the language you're using here, Sebastian--you're arguing, in essence, that there is some Platonic ideal of an understanding of the Constitution, and that legislatures and Presidents alike have a responsibility to uphold that ideal. But that's a joke--the Constitution is one of the most abstract documents out there, open to a wide range of interpretations. That's why we have a court system in the first place--to interpret and adjudicate, and indeed modify previous rulings based on current societal norms.
That's why original intent is such a dishonest load of crap when it comes up as an argument--it's impossible to know and even more irrelevant to the world we live in. Publius is right--the Second Amendment will mean whatever the court says it does now, and if the issue is readdressed in forty years, and a different court says differently, it will mean what they say it means then.
Posted by: Incertus (Brian) | March 22, 2008 at 07:49 PM
"But that's a joke--the Constitution is one of the most abstract documents out there, open to a wide range of interpretations. That's why we have a court system in the first place--to interpret and adjudicate, and indeed modify previous rulings based on current societal norms."
So what do people mean when they say that Bush is violating the Constitution about things that the Court hasn't ruled on? Apparently that isn't even possible. Can he violate the rights of people if those rights don't exist?
"the Constitution is one of the most abstract documents out there, open to a wide range of interpretations."
The hilarious thing about this is that people who say this want to rely on Supreme Court decisions instead, which are notoriously indeterminate and open to a wide range of interpretations. Anyone want to make a nice firm explanation of what does and does not pass the Lemon test for church and state issues and why? Anyone want to take a random sampling of opinions written by O'Connor and tell me how they help us understand what things are and are not permitted on whatever issue she happened to by writing about?
Posted by: Sebastian | March 22, 2008 at 07:56 PM
So what do people mean when they say that Bush is violating the Constitution about things that the Court hasn't ruled on? Apparently that isn't even possible. Can he violate the rights of people if those rights don't exist?
When people say Bush is violating the Constitution, they're generally talking about specific actions that have been adjudicated in the past. When he authorized illegal wiretapping, he was in violation of statute, and since the Supreme Court ruled against Nixon's idea that the executive was above the law, then yes, Bush is indeed violating the Constitution. Pretty much every other instance where people use the phrase fits a similar scenario.
The hilarious thing about this is that people who say this want to rely on Supreme Court decisions instead, which are notoriously indeterminate and open to a wide range of interpretations. Anyone want to make a nice firm explanation of what does and does not pass the Lemon test for church and state issues and why? Anyone want to take a random sampling of opinions written by O'Connor and tell me how they help us understand what things are and are not permitted on whatever issue she happened to by writing about?
It's not a perfect system, but it allows for judges to judge, and for the conversation to continue. It's called flexibility, Sebastian, and it's what has kept our judicial system limber for these last couple hundred years. That's why we're constantly revisiting issues--and I'm happy for that, because gods help us if we ever start thinking we've actually figured it all out. We'll be a theocracy.
Posted by: Incertus (Brian) | March 22, 2008 at 08:01 PM
"It is interesting that publius and Gary (liberals on this blog) agree with Tony P, since it is a position by which there are no rights other than what judges are (right at this very moment) saying there are."
Really, Sebastian? That's what this position is?
How's that again?Also, as usual, what Hilzoy said, in this case at 7:15 p.m.
I like you, Sebastian, but once in a while you seem to work rather unnecessarily to try to disabuse people who are trying to agree with you up to a point.
Is "Both points of view are defensible" so violently in disagreement with you that you don't even notice that we're saying you have a defensible view, and we're not privileging the opposing view over yours?
Because clearly you don't think this is even worth mentioning, for some reason.
What that reason is, I don't know. It's so completely unimportant?
Posted by: Gary Farber | March 22, 2008 at 08:09 PM
Shorter Gary, what publius said at 3:28 p.m.: in short, I feel like you're arguing with someone else.
[Sorry, I couldn't leave the capitalization alone.]
Posted by: Gary Farber | March 22, 2008 at 08:14 PM
Well as long as the individual right to own a gun is limited to approved individuals I see no problem with creating a new individual right.
But if the individual right is extented to the 'people' then we have a serious problem and I am prepared to say the court is totally bat shit insane.
There is a significant percentage of the population who should never be allowed to own a gun.
Criminals, the mentally unstable, children and the suicidial do not have a right either collectively or indivually to own a gun as they cannot be reliably well-regulated as the second admendment requires them to be.
Posted by: ken | March 22, 2008 at 08:24 PM
seb - again, i think you're fighting a different battle (ought instead of is). if bush or anyone does something that I think is wrong, then of course i'll object. but that has little to do with what the law IS as a descriptive matter.
hilzoy - that's an interesting discussion that probably merits its own post. but, the focus still seems to be on what the "should" be (i.e., if words have meanings, then courts shouldn't disregard them). however, with respect to the is, courts can definitely construe "religion" to be "mammal". and from a purely positive perspective, that construal would be binding law (even if it's a stupid ruling)
one question i had on your larger point though -- is there a meaningful difference b/w a word's meaning and its specification in practice (in a judicial setting anyway)
Posted by: publius | March 22, 2008 at 08:51 PM
"To be blunt, the Constitution means what the Court ultimately says it means. "
To be blunt, no, it doesn't, and the legal profession should keep in mind that, ultimately the law which they rely upon to empower themselves matters only so long at the population at large agrees that it matters. A population which is perfectly capable of reading the Constitution, and concluding that the judiciary isn't just mistaken, but lying. With explosive results.
Legal realism is, taken to the limit, the stuff of which revolutions are made. Try not to blow too hard on that house of cards you're living in.
Posted by: Brett Bellmore | March 22, 2008 at 08:55 PM
"however, with respect to the is, courts can definitely construe "religion" to be "mammal". "
Yikes.
But, that is what I thought you were saying.
Posted by: Sebastian | March 22, 2008 at 08:59 PM
"Legal realism is, taken to the limit, the stuff of which revolutions are made. Try not to blow too hard on that house of cards you're living in."
Brett, I'm trying to look for a third choice as to how to take this, other than as either: a) suggestive of a delusional understanding of the proability of said revolution coming any time in our life; or b) a sort of rhetorical blowhardism with no purpose other than to implicitly threaten and try to rhetorically bully people whose views you disagree with by announcing a non-existent violent threat on the horizon.
I'm entirely sure, let me assure you, that I'm leaving out all sorts of other possibilities, and I'm equally sure that I am suffering from a horrific lack of imagination tonight, and so I ask you to please, with consideration for all the due respect I have for you, to help me out here and explain a bit further just what your point actually is as regards this statement.
Thanks kindly.
Sebastian, once again: publius said "can," not "should."
Is it your contention that a judge, federal or otherwise, could not, in fact, issue such a ruling Monday morning?
It might be overturned by Monday afternoon, but that's neither here nor there.
If that's not your contention, than you're again giving an appearance that might cause some to wonder if you aren't arguing with some past interlocutor in your head, and not with what publius just wrote.
Posted by: Gary Farber | March 22, 2008 at 09:09 PM
Yikes
Seb, just to get a better handle on this, does that mean that you are horrified that publius acknowledges that to be the case, or do you think that is so mistaken that to acknowledge it constitutes a severe error?
I ask because I believe there are a number of rulings where courts have defined things contra common-sense definitions and those definitions have to be specifically re-defined either thru appeal or new legislature.
I also think that this observation comes from the philosophy of language, where trying to figure out how words and their definitions are linked to each other creates some very interesting and rather bizarre conundrums. To acknowledge that these conundrums exist is not to sanction them, but to simply note that the possibility exists. That's a bit different to suggesting that publius is supportive of such a notion, which is why I ask what the 'Yikes' means.
Posted by: liberal japonicus | March 22, 2008 at 09:11 PM
Sorry, cross-posted with Gary, didn't mean to pile-on.
Posted by: liberal japonicus | March 22, 2008 at 09:12 PM
publius: it probably does deserve its own post, but I get wary of doing legal theory without a license. Also, there are large chunks I haven't worked through.
I think that words are public, not limited to the law. I am communicating with you, rather than presenting you with an array of pixels to be interpreted in merely aesthetic terms or something, in part because we understand our words to have more or less fixed meanings. (More or less: they can be in some ways indeterminate, etc.) I think this is true of words in the law as well. I mean: laws are written in ordinary language.
The fact that the court can say: this means X, and when it does so, that stands unless its decision is overturned, and it is binding on people, does not mean that it can make words mean whatever it wants. It does not have that power over language. At most, it can establish a sort of niche within language, over which it has jurisdiction.
(Thus: if the court said "'religion' means 'mammal'", that would not change the meaning of the word 'religion'; it would change first amendment jurisprudence, the amount of confidence churches could have that the government would not interfere with them, the government's animal eradication programs, etc., etc.)
I don't know that the line between meaning and specification is hard and fast. I suspect that on the boundaries, you'd get into hard questions where the better part of wisdom would be to say: if enough people disagree that X is a matter of the meaning of a term, we should say that it is not.
Posted by: hilzoy | March 22, 2008 at 09:14 PM
I should say: the whole point of my saying this was to say: you can say that courts cannot change the meaning of a term, thereby causing at least a significant part of Seb's horror to go away, while acknowledging the existence of a large chunk of indeterminacy, in which courts can do stuff, and in which (moreover) it doesn't make sense to want everything to be settled by the meanings of terms, thereby acknowledging what publius wants. All you have to do is distinguish these two things.
Posted by: hilzoy | March 22, 2008 at 09:16 PM
For what it's worth to Sebastian, I tend to see "the right of the people to keep and bear arms" as an individual right. This DESPITE arguments over the meaning of "the people". To cite his own example, "the right of the people peaceably to assemble" is on its face not an INDIVIDUAL right -- you cannot individually "assemble", peaceably or otherwise. I think we would all agree that individuals have the right to vote, but not on days when "the people" are not holding an election. So I think one should not rely on overinterpreting what "the people" means in the 2nd Amendment.
Neither should one overinterpret the word "arms". Did the Framers mean "flintlocks and cutlasses", or did they mean Uzis and Stingers? The former would be ridiculous. A too-strict construction of original text, or a too-strict reliance on original intent, would limit our 1st-Amendment rights to printing leaflets on a screw press and speaking only to as many people as can hear us from a soapbox. On the other hand, if we agree that "arms" must be read more expansively, it's hard to see why the Framers would have objected to personal ownership of attack helicopters. Especially in light of the "security of a free state" language (the bulwark-against-tyranny argument) one must accept that whoever it is that has the right to bear arms has the right to bear MILITARY arms.
The important word, to me, is "infringed". Do I have the right to travel -- say to a peaceable assembly in front of the State House? I should hope so. Does the Commonwealth of Massachusetts "infringe" on my right to travel by requiring me to get a driver's license and carry liability insurance on my car? I can argue that one either way. And I'm not even a lawyer.
-- TP
Posted by: Tony P. | March 22, 2008 at 09:17 PM
At most, it can establish a sort of niche within language, over which it has jurisdiction.
yes, precisely. that's exactly what it's doing - carving out a linguistic domain where it runs the show. (sort of the train man who controlled the bridge b/w the real world and the matrix in that awful third Matrix movie).
Posted by: publius | March 22, 2008 at 09:21 PM
publius: I tend to think of claims like "the court can say that religion means mammal' as analogous to a claim like: 'if I want to, I can interpret your 'yes, precisely' to mean 'no, absolutely not', or 'is this a dagger I see before me?', or whatever I please.'
There are lots of things I can do: think you meant those things, stamp my tiny foot and insist you meant those things, etc., etc. And who can stop me? But I will not, whatever I do, make it the case that you did mean those things. I do not alter language when I stomp my tiny foot; I do something else, like call my sanity into question.
Nor, likewise, can you make it the case that the meaning of 'yes, precisely' was any of those things, even if you squinted really hard and wiled them to mean those things, or had one of them in mind when you said them, or something.
What words mean is up to us collectively -- in the sense that words can change meaning -- but their meaning is not up to any individual, or body like courts. Imho.
We can, of course, define a new term, the way (say) physicists did with 'quark'. We can name new kinds of things. We can establish some purely technical usage within a given field. But I think it matters that all of these are prospective; it's not as though the physicists can change what someone who previously used the word 'quark' (if anyone did) meant by it.
Posted by: hilzoy | March 22, 2008 at 09:32 PM
"Is it your contention that a judge, federal or otherwise, could not, in fact, issue such a ruling Monday morning?"
They could do it, but they would be OBJECTIVELY WRONG.
Posted by: Sebastian | March 22, 2008 at 09:34 PM
"Brett, I'm trying to look for a third choice as to how to take this, other than as either: a) suggestive of a delusional understanding of the proability of said revolution coming any time in our life; or b) a sort of rhetorical blowhardism with no purpose other than to implicitly threaten and try to rhetorically bully people whose views you disagree with by announcing a non-existent violent threat on the horizon."
My meaning is quite plain: There are limits to how far, and how fast, the judiciary dares misconstrue the Constitution. It is possible for the courts to push the process of converting a constitutional republic into a judicial oligarchy so far and fast as to provoke a violent response. The legal community had best remember that.
You may think this hyperbole. I, on the other hand, live close enough to James Nichol's farm that I had to deal with a traffic jam when they closed the road to search his barn for fertilizer residues. (Morons...) I am well acquainted with the fact that, not only is it possible for the government to provoke armed resistance, it has happened in the recent past.
If the Supreme court were stupid enough to take their magic bottle of Whiteout to the 2nd amendment, it would happen again, on a scale that would make the militia movement look petty. Take that as a prediction or a threat, it's still not crazy raving.
Posted by: Brett Bellmore | March 22, 2008 at 09:35 PM
And about the niche: I think it matters that the law (in the US) is not supposed to be written in a language that is unrelated to English. In that case -- if all the words were clearly understood to be mere homonyms of English words -- then they could, I suppose, do as they please. But (US) laws are supposed to be written in English.
Posted by: hilzoy | March 22, 2008 at 09:36 PM
hil - i see your point. i think you're getting into philosophy of language, and i agree that foot-stomping courts can't change language for the collective.
my more humble point is that (as a purely descriptive positive matter) those rules of language are suspended in teh legal realm, at least theoretically. if a binding court says blue is red, then it is. (the normative correctness of that interpretation - seb - is a different battle)
Posted by: publius | March 22, 2008 at 09:52 PM
"They could do it, but they would be OBJECTIVELY WRONG."
Fine. And now I won't speak for anyone else, but since you specifically asserted of me that:
Perhaps you would be so kind as to link to and quote where -- anywhere -- I stated, or even implied, disagreement with your above view, and/or stated the view your (incorrectly) attribute to me?Thanks again. Hope you're having a good weekend. I am.
Posted by: Gary Farber | March 22, 2008 at 09:57 PM
if a binding court says blue is red, then it is.
I think you're overstating the power of the courts -- they have power only to the extent that the other branches consent to follow their decisions. An egregiously wrong opinion along the lines of "religion" = "mammal" would likely never be enforced, which is to say that the courts do not in fact have the power to do that.
Posted by: kenB | March 22, 2008 at 10:02 PM
The 2nd Amendment isn’t as important as it used to be. Today in America, there are over 280 million private firearms in circulation. That works out to around four firearms for every militia-aged male Citizen. The Citizens have already armed themselves and good luck about undoing that. Watch for a tax on ammunition though. Maryland wants a $5/round tax on handgun ammunition.
If it comes down to lawyers, guns, or money; lawyers will be the first to be thrown out the window.
And we know how to reload.
Posted by: Bill | March 22, 2008 at 10:36 PM
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Bill W, just out of curiosity, how do you get from the first 4 words of the Second Amendment, quoted above, to "The notion that the 2cd amendment is not an individual right flies in the face of its prominent position in the Bill of Rights. The only interpretation that makes any sense is that the right of individuals to keep and bear arms is necessary so that citizens can form spontaneous militias to fight renegade Indians, criminal gangs, or foreign invaders."
How do "well regulated" and "spontaneous" become synonymous? Just curious.
Posted by: eed | March 22, 2008 at 10:45 PM
"Today in America, there are over 280 million private firearms in circulation. That works out to around four firearms for every militia-aged male Citizen. The Citizens have already armed themselves and good luck about undoing that."
For the record, I agree with you on that, Bill.
Which is why I'm such a big agnostic on gun control laws. I'm for local control, and I'm for letting people set it the way they want, for the most part, within certain broad limits.
And mostly I don't care a lot, because I don't see any likely gun laws likely to make significant differences other than on the margins, in any direction.
Posted by: Gary Farber | March 22, 2008 at 11:31 PM
"if a binding court says blue is red, then it is. (the normative correctness of that interpretation - seb - is a different battle)"
But it isn't. Respect for the rule of law depends on courts not doing that (or at the very least appearing not to do that).
"Perhaps you would be so kind as to link to and quote where -- anywhere -- I stated, or even implied, disagreement with your above view, and/or stated the view your (incorrectly) attribute to me?"
You said:
"If that's not your contention, than you're again giving an appearance that might cause some to wonder if you aren't arguing with some past interlocutor in your head, and not with what publius just wrote."
This means: I agree with everything above that Sebastian has just written.
Or at least that is what the judges have recently ruled, so I'm afraid you can't argue with it. Sorry if you disagree. Kind of a bummer that words don't have actual meanings. That would have been, like totally helpful.
Posted by: Sebastian | March 23, 2008 at 02:46 AM
"Kind of a bummer that words don't have actual meanings."
Who the hell are you arguing with?
Why are you, like, ignoring everything I've written to you?
"Kind of a bummer that words don't have actual meanings."
Where did I ever suggest any such thing?
Posted by: Gary Farber | March 23, 2008 at 02:54 AM
People, people. A moment please for Bork's favorite inkblot:
Posted by: Fledermaus | March 23, 2008 at 03:11 AM
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
I'm sure to be wrong about this, but my best attempt at parsing this in plain language is that the U.S. Federal govt. is barred from taking steps to disarm individual citizens, the rationale for which is that under some circumstances the State govt.'s may need to call upon their citizens (in the form of a regulated state militia) to resist a tyrannical Federal govt by force of arms. Which actually happened in 1861 (whether it was justified or not is another story).
In other words, our current problem in parsing this language is due to us being unable to imagine a post-1865 condition of armed hostility between the states and the federal govt.
Does this mean that individual states may regulate arms and even ban individuals from owning them, but the Federal govt. may not? Or am I way off base here?
Posted by: ThatLeftTurnInABQ | March 23, 2008 at 04:28 AM
Just to pour some extra oil into the fire:
Courts have a nasty history of redefining terms in ways that defy our current sense of logic and decency with those abominations having power for a very long time. Take 'human' or 'citizen' as the most obvious examples (or more recent: 'cruel and unusual'). And don't anyone say that those views have actually died (even, if we exclude theocrats that will strip everyone not part of their narrow group of all rights and claiming that this is the actual intention of the constitution). Not to forget that a number of otherwise reasonable people think that 'rights' as defined by the constitution only apply to citizens of the US. That includes even the most basic rights (not just citizen rights as voting*).
*which according to a certain school of thought does not exist anyway even for citizens.
Posted by: Hartmut | March 23, 2008 at 05:58 AM
"Does this mean that individual states may regulate arms and even ban individuals from owning them, but the Federal govt. may not? Or am I way off base here?"
You weren't way off base before the 14th amendment, though you are discounting the frequency of 2nd amendment analogs in state constitutions.
Posted by: Brett Bellmore | March 23, 2008 at 07:17 AM
The 2nd Amendment is of course distinctive in the Bill of Rights for having a rationale attached, and more distinctive in practice for having a core body of supporters who've amplified that rationale. Brett illustrates: he wants the government to be afraid of the public. (I would rather the government be afraid of the people than vice versa, but I would regard the absence of fear on either side as more desirable yet, because I actually believe that psychologically healthy people are more fun and useful to live with.)
The problem for any such argument right now is that it's been tested, and failed decisively. We have a president who's done everything ever used to justify impeachment and much more, right down to suspending habeus corpus and torturing innocent people for years on end. The 2nd Amendment crowd ended up pretty much cheering this all on, with very specific exceptions for things like gun tracking in the original PATRIOT Act. The self-identified champions of freedom, as a group, are doing substantially worse than the general American population at identifying or opposing tyranny.
The fact that this bunch of advocates are such pathetic failures at their chosen cause doesn't mean the cause itself is thereby proven wrong, of course. But it does mean that all the rest of us are entitled to a very great degree of skepticism about the whole thing, and to doubt the feasibility of it all. For all my adult life, I've been hearing about how the stalwart armed men and women of America would be the final savior of all the other wimps too cowardly or otherwise conditioned not to defend themselves. In practice, it's turned out to be people like Katherine and CharlieCarp saving the gun fans, or at least doing more to try than anyone else.
Posted by: Bruce Baugh | March 23, 2008 at 10:14 AM
"I would rather the government be afraid of the people than vice versa, but I would regard the absence of fear on either side as more desirable yet, because I actually believe that psychologically healthy people are more fun and useful to live with."
Yeah, and I'd regard a heat engine that was 100% efficient as more desirable than one that obeyed the Carnot criteria, but we live in the universe we live in. The government wields coercive power, and attracts people who would like to abuse that power. Somebody is inevitably going to be afraid of somebody, and as you say, I'd prefer it be the government afraid of the people, than the other way around.
You can argue that the 2nd amendment has failed it's purpose, I'd argue that it's supposed to advance that purpose under conditions far worse than currently exist... "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.", and all that.
But the notion that a clause of the Constitution is implicitly repealed if it, in the opinion of somebody, has failed it's purpose, is anathema to the very existence of constitutions. The Second amendment ceases to be legally binding on the government on the day it's repealed via Article V, and not one second sooner. If the Court decides otherwise, so much the worse for the Court's legitimacy.
Posted by: Brett Bellmore | March 23, 2008 at 10:40 AM
publius: yes, we are indeed getting into phil. of language. Not my field, but closer to it than legal scholarship.
"my more humble point is that (as a purely descriptive positive matter) those rules of language are suspended in teh legal realm, at least theoretically. if a binding court says blue is red, then it is."
Here I think disaggregation is our friend. It is certainly true that a binding court has the power (until overruled) (a) to say: when a statute says 'blue', it means 'red' (this is easy, it can say whatever it wants), and (b) thereby to make it the case (until overruled) that courts bound by its decision shall interpret 'blue' to mean 'red'.
It is not entirely clear that what it is doing there counts as 'making blue mean red', even for legal purposes. I can't speak for Seb, but I can think of two reasons why this formulation might make me nervous. One is more me than Seb, I think: as I said above, I think this way of putting it sacrifices the extent to which law uses the same language that I am using to write this comment. It makes it sound as though it is written in an artificial language created by judges, which happens, by coincidence, to sound a lot like English. (In the US. In France, it happens to sound a lot like French, etc.) I think this distorts our understanding.
The second, which might be, or (more likely) be in the vicinity of, what Seb is worried about, is: whatever its virtues as far as understanding what a decision does once issued, it makes it a lot harder to understand what judges are aiming at in arriving at that decision themselves: what they ought to aspire to. If words have meanings independent of judges, then one thing they ought to aspire to is: to get that meaning right.
If they don't, however, then whatever they are trying to do that can't be it. They might be constrained by other things, like coming up with the optimal social arrangement, or doing all that bizarre ESP-plus-history work that Original Intent people want them to do, or whatever, but since the meanings of the terms are whatever they want them to be, they don't have to worry about getting those meanings right.
I think that if I were coming up with a legal theory, I'd want it to be good both for understanding legal decisions from a 3rd person perspective (here is a decision; what does it do?) and also for understanding what judges are doing when they come up with those decisions in the first place. And this latter would cover not so much e.g. what actually goes through their heads (I mean, an actual judge might for all I know think any damn thing), but whether what they do counts as creating meaning, and in what circumstances, whether they ought to aspire to get the meaning of a statute's terms right, etc.
I think that the idea that they just create meanings does a lot better with the 3rd person perspective than with the 1st person perspective. My proposal was meant as a way to let meanings in (to correct that, and to make room for the aspiration to get meanings right), without giving way to the temptation to make meanings do all the work.
Also, to allow for a distinction between (a) specifying that, in a given context, a term like 'search', whose meaning (let's suppose, does not settle the matter whether some X counts as a search or not, does count as one (this is, you might say, consistent with its meaning but not required by it, and the nature of laws requires that they be more specific than meanings normally are), and (b) saying that 'search' means 'cucumber'.
My sense is that when people say 'judges can make words have whatever meaning they want', they are often driven both by the descriptive fact that binding courts do, in fact, bind until overruled (a fact one absolutely does want to acknowledge, but which one does not have to cash out in terms of changing meanings), and by the fact that meanings absolutely cannot do all the work there is to be done in interpreting legal theory. Thus, my proposal, which aims to give meanings their own space, while recognizing that that space is not the entire universe of legal opinion-making (it's not even most of that space.)
As I said earlier, I also think that to the extent that one has constitutional matters in mind, this can be distorting. There are, I assume, normal procedures for dealing with laws that are too vague, or badly drafted, or crucially ambiguous. But the analogous procedures in constitutional questions (amendment, for instance) are much, much harder, and fraught with peril.
So it's not just that getting the interpretation right matters more in constitutional matters; in cases (and I take the 2nd amendment to be one) where the text is deeply ambiguous and rather badly drafted, interpretation has to do the work that might, if a statute were at issue, be done by sending it back to the legislature to redo, or interpreting it and saying: if we got it wrong, please revise.
I don't want the constitution to be easy to amend. I don't want it to be festooned with whims transformed into constitutional requirements. But the price of this is that in cases like the 2nd amendment, interpretation has to do a lot more work than in normal cases.
Posted by: hilzoy | March 23, 2008 at 11:03 AM
So could anyone explain why Seb is going on to me like this?
Where does this come from in relation to anything I've written?
I don't understand.
Posted by: Gary Farber | March 23, 2008 at 11:38 AM
I love this fantasy Brett has that we're one bad Second Amendment decision away from an armed revolution by gun enthusiasts. That's the best laugh I've had in, literally, weeks, if not months.
Posted by: Phil | March 23, 2008 at 11:58 AM
OT, though still law-related: Doug Kmeiec, head of OLC for Reagan and GHW Bush, Professor of Constitutional Law at Pepperdine, and serious conservative, endorses Obama.
Posted by: hilzoy | March 23, 2008 at 01:41 PM
What 'far worse' conditions? Like a military takeover of the government? If so, how will hand-gun ownership in D.C. (or anywhere else) help free us? By enabling militias-of-one to shoot down rocket-launching military helicopters with .22s?
Posted by: Jay Jerome | March 23, 2008 at 03:15 PM
hilzoy: “Doug Kmeiec, head of OLC for Reagan and GHW Bush, Professor of Constitutional Law at Pepperdine, and serious conservative, endorses Obama.”
Good news. Now, in addition to Farrakhan’s endorsement, Obama has a traditional-marriage strict-constructionist conservative-Republican backer. Will Dennis Miller or Sean Hannity be next in the conversion endorsement queue? One can only hold one’s breath, and hope.
Posted by: Jay Jerome | March 23, 2008 at 05:48 PM
but since the meanings of the terms are whatever they want them to be, they don't have to worry about getting those meanings right.. Elegant.
Being a grizzled non-bear fewly neuroned; in the dispute between Platonist and Sophist, idealist vs. nominalist, is not the mandate of not only justice being done but being seen to be done, in some way pertinent?
Mm, JJ, you remind me of an initial thought after reading Lithwick’s report of the Court’s questions (emphasizing their comic absurdity) [from Marty Lederman on Jutice Kennedy’s reasoning: “the most it would demonstrate is that if a resident of D.C. brings the head of a wolf to Mayor Fenty, he has a constitutional right to a free ham.”here,">http://snipurl.com/22fnm">here, also pointing out Kennedy’s expressing fear of Grizzlies roaming that city] that justice might truly be seen to be done if one or more of the Justices were to fall victim to a random DC firearm discharge.
Posted by: felix culpa | March 23, 2008 at 06:02 PM
felix culpa: any resemblance you might notice between reasons for rejecting the idea that the right is whatever God wills and reasons for rejecting the idea that the meanings of words are whatever a court wills is non-accidental. ;)
Posted by: hilzoy | March 23, 2008 at 06:30 PM
I love this fantasy Brett has that we're one bad Second Amendment decision away from an armed revolution by gun enthusiasts. That's the best laugh I've had in, literally, weeks, if not months.
It's cute, isn't it? Much like his adorable insistence that, inevitably, everyone in a democratic society must either fear or be feared. It's like listening to the paranoid mumblings of a junior high school reject.
Posted by: Anarch | March 24, 2008 at 03:28 AM
I don't think we're one bad Second Amendment decision away from armed revolution, chiefly because the political realities right now would keep the government from immediately exploiting a bad 2nd amendment decision, just as they've kept the government from fully exploiting the absence of a good one.
What I think is that the Court is one bad decision away from zeroing out the credibility of the legal system in the eyes of a large segment of the population. And that this matters.
Law and government are, to a great extent, consensual illusions. They exist because we agree they exist. Only police states retain the capacity to enforce the law on an unwilling populace, (And only then because coordination problems allow the state to pick off individuals before mass revolt materializes.) less extreme states rely on the vast majority of people obeying the law merely because "it's the law", even though they know on some level the government couldn't catch them.
In short, our government is highly reliant on the vast majority of people thinking that the law has some normative force, that it ought to be obeyed, even where you don't like it.
The Supreme court is one really bad decision away from zeroing out it's legitimacy with an important segment of society, which would have the consequence that they'd wake from the dream, and stop regarding those pesky enactments as "the law", which they have some obligation to obey even in the absence of effective enforcement.
This does not mean human wave attacks on government offices. But the consequences are still ugly, because governments, as we've seen with the war on drugs, do not cease enforcement of laws just because the relevant segment of society stops caring about them. Governments respond to that sort of thing with brutality.
You really want to see the consequences of America's gun owners no longer caring to obey gun laws, and the government going batshit insane in response? We saw a mild foretaste of that in the milita movement of the 80's and 90's, you know. Cells training in military tactics, and the government burning people alive.
The Supreme court whips out it's magic bottle of Whiteout, and the militia movement will be back in spades, with lessons learned, and a lot bigger base of support. That's not going to result in immediate revolution, but do you like the idea of America becoming Northern Ireland writ large? Do you like the idea of what our present government, all FISA'd up and on a war footing, would do in response?
The Supreme court ruling wouldn't cause a revolution. The downward spiral that followed could.
Posted by: Brett Bellmore | March 24, 2008 at 07:09 AM
"An important segment of society?" The segment that has the wherewithal and ambition to sit in lawn chairs on the Texas border dreaming of picking off Mexicans? That segment? Yeah, I'm terrified.
Cells training in military tactics . . .
Like the classic military tactic of blowing up a day-care center with a fertilizer bomb. How well I remember that one serving us at the Battle of the Bulge.
And I'm not too concerned with how legitimate the legal system is viewed by a group of people who like to do thing like placing nuisance liens on government officials' property. YMMV.
Posted by: Phil | March 24, 2008 at 07:27 AM
Phil, if you think the government only needs the consent of people you like, in order to keep something like peace, you're not just a fool, you're a dangerous fool. The fraction of the population whose active opposition is enough to make a country ungovernable is a lot lower than you seem to care to recognize.
Posted by: Brett Bellmore | March 24, 2008 at 08:49 AM
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Folks often say this language is ambiguous and hard to understand. I think if you remove the first and last commas, it parses perfectly well, and that in the context in which it was written, it's meaning is fairly clear.
The simple, common sense reading I take away from the 2nd Amendment is that the founders wanted private citizens to be allowed to own firearms.
The assumption appears to be that a citizen militia, in which most able-bodied folks would participate, would bear primary responsibility for national defense and for maintaining civil order. The not very hidden subtext is that such a militia would prevent domination of the public by an over-powerful state.
Unfortunately (IMO) we've moved away from that model to an almost completely professional army. But that's a topic for another day.
So, for a lefty, I'm pretty much a second amendment hawk.
We do, however, limit the exercise of many rights guaranteed in the Constitution and its amendments. Yelling "fire" in the crowded theater and all that.
The rights guaranteed in the Constitution are inalienable, but are not absolute in their exercise. We all accept that, or at least we all should.
This nation has one of the highest rates of death by firearm in the world. In some places, including Washington DC, the reckless use of firearms by gang members and other criminals commonly kills innocent men, women, and children as they are simply going about their daily lives.
DC's gun laws are among the most strict, if not the most strict. They also have some of the worst problems with illegal gun use.
If they're not allowed to set limits on the ownership and use of firearms, what tools are left to them to curb this situation?
One conceivable answer, and one that comes up fairly often, is simply to let every adult that cares to own a firearm to do so, and let them fire back. Presumably, after the first few gang-bangers were killed by ordinary citizens, they'd give up their bad behavior.
What would that solution actually look like in real life? How many free for all gun battles would be required before peace returned to Washington, Dodge City?
For those arguing for unrestricted gun ownership, what's your practical solution for the high level of criminal gun use that folks in some urban areas live with everyday?
Thanks -
Posted by: russell | March 24, 2008 at 08:57 AM
Presumably, after the first few gang-bangers were killed by ordinary citizens, they'd give up their bad behavior.
You're presuming that ordinary citizens shoot well enough to kill and that most people, faced with killing another person, would be able to do it.
In any situation where two people have guns, presuming that both guns are roughly equivalent in capacity, the edge will always be with the person who is better/more experienced at firing the gun. If it is legal to fire to kill providing you did not fire the first shot, I would guess the result of such a law would be that gang members would walk away from any gun fight, immune to prosecution, providing they could get the ordinary citizen to fire on them first.
What would that solution actually look like in real life?
Baghdad.
Posted by: Jesurgislac | March 24, 2008 at 09:40 AM
"I think if you remove the first and last commas, it parses perfectly well...."
Russell, since I can reverse or change the meaning of a sentence as I like by "merely" rearranging commas, I'm unclear how this helps.
In general, if one is allowed to rewrite something, one can parse it quite well, sure. This isn't terribly useful at getting people to agree on a single meaning, though.
Examples:
I'd like to thank my parents, Ayn Rand and God. I'd like to thank my parents, Ayn Rand, and God.Gary claimed Russell made the comment. Gary, claimed Russell, made the comment.
More subtle variations in meaning:
a) Russell's brief yet eloquent tribute to Gary appears in today's blog post.
b) Russell's brief, yet eloquent tribute to Gary appears in today's blog post.
c) Russell's brief, yet eloquent, tribute to Gary appears in today's blog post.
Each is a slightly, but clearly, different characterization.
Back to more obvious changes, a sexist classic:
A woman without her man is nothing.
A woman: without her, man is nothing.
But it's "only" changing a comma.
We can play this game for years.
Sure, if I'm allowed to do what I like with commas, I can make a decent sentence roll over, sit up, beg, reverse itself, and mean what I want.
So what?
Now, if you'll excuse me, having eaten, I must shoot and leave.
Posted by: Gary Farber | March 24, 2008 at 10:01 AM
Let me clarify that I wasn't disagreeing with your larger points about gun policy, Russell, nor meaning to sound dismissive.
It's the notion that somehow changing a comma is insignificant, and doesn't count as a complete rewrite of something, that I take issue with, and that's all. And apologies if I sounded snotty.
Posted by: Gary Farber | March 24, 2008 at 10:07 AM
like listening to the paranoid mumblings of a junior high school reject.
—Been there, done that. Though it took me twenty years or so to become aware of the mumbling problem. Go easy on the junior high school rejects. One of us could take that personally.:)
russell; even by your own high standards an exceptionally fine comment.
Posted by: felix culpa | March 24, 2008 at 10:10 AM
"DC's gun laws are among the most strict, if not the most strict. They also have some of the worst problems with illegal gun use.
If they're not allowed to set limits on the ownership and use of firearms, what tools are left to them to curb this situation?"
That' s kinda like saying, "We've been bleeding So and So for weeks now, and he's STILL got an awful case of anemia. If we're not going to bleed him further, what ARE we going to do about it?"
The District's violent crime got worse after it imposed these gun controls. Within a few miles you have areas with virtually no gun control by contrast, and remarkably lower crime rates. Given those facts, how on Earth could DC's violent crime problem justify gun control?
Posted by: Brett Bellmore | March 24, 2008 at 10:14 AM
Shorter Gary:
Gary says Russell is wrong about the comma not mattering.
Gary, says Russell, is wrong about the comma not mattering.
Posted by: Gary Farber | March 24, 2008 at 10:15 AM
& Gary, much admiration for your freshly gentle manner.
Amazing the difference a dot with a tail makes, hey? Not that I’m equal to parsing it very well.
Posted by: felix culpa | March 24, 2008 at 10:21 AM
Russell's brief yet eloquent tribute to Gary appears in today's blog post.
And here it is: yes, you are quite right.
I generally construe my reading of the 2nd as I described above because it's the shortest path to getting it to make grammatical sense. As you note, that doesn't necessarily mean it's correct.
And apologies if I sounded snotty.
Like you, I grew up in and around the NYC area, where sarcasm is the salt of choice for making conversation tasty, and where it quite often signifies acceptance, if not affection, rather than it's opposite.
So, no worries.
The District's violent crime got worse after it imposed these gun controls. Within a few miles you have areas with virtually no gun control by contrast, and remarkably lower crime rates.
This is a really strong argument, if you can demonstrate cause and effect.
Can you?
Thanks -
Posted by: russell | March 24, 2008 at 11:06 AM
Jesurgislac:
"What would that solution actually look like in real life?
Baghdad."
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.
And if we legalized most drugs as well as letting non-gang-bangers shoot back we could probably fix 80% of the problem.
Russell:
Why do we get to assume that the 2nd amendment implicating gun laws LOWER gun crime in DC, and are therefore necessary but you want proof of cause and effect when people notice that DC has had some of the strictest gun control laws in the country (and for decades) while apparently not making a dent.
Now I fully agree that unless you only recognize one right in the world, rights end up being limited if only because they come into conflict with each other.
I know that burden of proof arguments can be tedious, but it seems to me that if you want to sharply limit a Constitutional right, the people who want to sharply limit that right have the obligation to show that such limit would be both necessary and effective to successfully deal with whatever problem is important enough to limit Constitutional Rights.
In this case they seem to be neither:
Plenty of cities get control of their gang problems with much lighter gun control regimes. So the restriction appears unnecessary.
The controls have been in place for many years, yet DC has some of the highest gun violence in the country. So the restriction appears ineffective.
Why should you be allowed to sharply restrict a Constitutional right when such restriction is unecessary to acheive the restriction's aim and has been demonstrated to be ineffective?
4th amendment searches are subject to limitations. Would you be ok with expanding those limitations for a policy that was both unnecessary and ineffective?
Posted by: Sebastian | March 24, 2008 at 11:43 AM
Sebastian: And if we legalized most drugs as well as letting non-gang-bangers shoot back we could probably fix 80% of the problem.
While decriminalizing addictive drugs to remove them as a source of profit for organised crime is a practical first step, in the US you would also need a national health service to allow addicts to get free drugs on prescription if you wanted to prevent people who have become addicted to drugs they cannot afford to buy on their legal income, robbing people to get the money to buy their next fix.
The notion that if you make murder legal, there will be fewer murders, is not borne out by evidence. In a culture where it is legal to kill people under certain conditions - for example, if A fires first, B can kill A - merely results in fewer prosecutions, not in fewer murders. That good guys shoot better than bad guys works as a strategy in Westerns, not in real life.
Posted by: Jesurgislac | March 24, 2008 at 11:59 AM
Making drugs more legal would also make them cheaper.
Also, Texas actually exists. It isn't a hypothetical I made up. It has a lower gun death rate than DC (even if you don't bother trying to distinguish between murder and self defense).
Posted by: Sebastian | March 24, 2008 at 12:09 PM
Yeah, I'd prefer that to seeing innocent kids regularly mowed down in drive-by shootings (about a thousand incidents per year), or students mass murdered by geeks who were able to swipe their daddies automatic rifles or buy them on line as easily as ordering Ipods and Game Boys -- a Variety Is The Spice Of Death sort of thing.
(Shooting Spree Death Tolls: Virginia Tech - 32; Columbine High school-- 12; Oklahoma Post Office -14; Florida General Motors office -- 11; Georgia Office rampage - 9; Mississippi Lockheed Martin plant - 6; etc etc etc...)
Another view of those statistics
And an overview of the DC gun law from the Washington Post, including this observation:
If it's raining and your roof leaks, and you fill one of the leaky holes with tar, but not all the others -- guess what, you're still going to get wet. Of course, you can say, well the tar fix didn't didn't solve the problem, so let the roof keep leaking... or you can fill all the goddammed (a rev Wright emphasis) holes, which will keep you snug as a bug in a rug.
Posted by: Jay Jerome | March 24, 2008 at 12:12 PM
"to prevent people who have become addicted to drugs they cannot afford to buy on their legal income"
Jes, you do realize, don't you, that the high price of these drugs is almost entirely due to their legal status? Very few people couldn't afford currently illegal drugs if they were legal.
That's why I don't want them "decriminalized", I want them legalized. Decriminalization retains most of the social problems.
"The notion that if you make murder legal" is a contradiction in terms, since "murder" is simply "illegal killing". I think what you're refering to is "self defense", and it's legal in this entire country, even if a few jurisdictions try to deny people the most effective means to carry it off.
And the good guys don't have to be better shots than the bad guys. The good guys vastly outnumber the bad guys, even if the bad guys win most armed encounters, they end up dying off in short order, because the good guys mostly go their entire lives without such an encounter, while the bad guys engage in them on a frequent basis.
You can't make a career of armed robbery if it carries a 10% chance of dying every time you do it.
Posted by: Brett Bellmore | March 24, 2008 at 12:14 PM
"Yeah, I'd prefer that to seeing innocent kids regularly mowed down in drive-by shootings (about a thousand incidents per year)"
For "innocent kids", in this context, we're talking gang bangers, old enough to join the army, who happened to not be engaged in a crime at the moment some rival gang member killed them. Actual "innocent kids" hardly ever get shot.
Posted by: Brett Bellmore | March 24, 2008 at 12:20 PM
Yeah, this whole Washington, DC crime thing is ignoring away a couple of important factors, as Jes notes in her WaPo link. The Northern Virginia suburbs and Washington, DC have different crime rates for, probably, demographic reasons entirely unrelated to gun control, since it's trivial for people in DC to travel across the river and get pretty much all the guns they want.
The DC gun ban is so ineffective that it may as well not exist, so people looking to it for an explanation of DC's violent crime rates need to look elsewhere.
Phil, if you think the government only needs the consent of people you like,
Which is not what I said at all, Sir Reading of Comprehension. I said I'm very much uninterested in the opinions of people who already make a mockery of government, and its operations, through the use of nuisance liens, "sovereign citizen" filings and a whole bunch of other similar tomfoolery. These people don't care about government qua government at all; they're crypto-anarchists. So, honestly, their opinions on just consent and so forth really aren't of interest.
Or, to paraphrase Clint Eastwood, "like" ain't got nothin' to do with it, son.
Posted by: Phil | March 24, 2008 at 12:29 PM
Actual "innocent kids" hardly ever get shot.
This is not true.
Posted by: Phil | March 24, 2008 at 12:34 PM
Well actually, Texas.
Actually, a very crowded Texas, which in the end isn't really Texas at all.
I think people don't take population density into account when they think about these things, and I also think it's a highly relevant consideration.
Why should you be allowed to sharply restrict a Constitutional right when such restriction is unecessary to acheive the restriction's aim and has been demonstrated to be ineffective?
If I understand your argument here, you are asking why the burden of proof should be on folks who oppose DC's gun laws to demonstrate that they are NOT effective, rather than the other way around.
I think that's a very good question, and in fact I'd be inclined to agree that that burden of proof should be on those who wish to limit the exercise of a right, rather than the other way around.
It may well be that DC's gun laws are not effective -- that they do not, in fact, contribute to lowering the rate of armed violence. In that case, I'd agree that they are likely not justifiable as currently written.
Note that the question on the table in the discussion you and I are having here is whether a given limitation on a constitutional right is justifiable in a particular context. We are not discussing whether a state or local government can pass a law that circumscribes that right AT ALL.
I don't know if DC's absolute handgun restriction is necessary, nor if it is useful or effective. It is a limit on the right to bear arms, and so it should have to meet that common sense bar.
But that's not the same thing as saying that DC may not limit the ownership or use of firearms at all.
I think your point about decriminalizing drugs is right on the money. I also think Jes' observation that drug use represents a public health problem, requiring a public health remedy, is equally right on the money.
You can't make a career of armed robbery if it carries a 10% chance of dying every time you do it.
I don't think most armed robbers are thinking that long term. And I don't see a solution that involves a normal citizen getting killed or wounded 9 out of 10 times as being a really good alternative, either.
Actual "innocent kids" hardly ever get shot.
Well, yeah, they do.
Thanks -
Posted by: russell | March 24, 2008 at 12:42 PM
Off your meds today, Brett?
A quick google of 'innocent victim drive by shooting' lists 132,000 hits.
Of the first 20 hits, 11 of them specifically describe 'innocent' people gunned down simply for being in the wrong place at the wrong time.
One of the links led to an abstract titled: Adolescents and Children Injured or Killed in Drive-By Shootings in Los Angeles. It stated that about 30% of those who suffered gun shot wounds (including homicide victims) were not gang members.
The study also refutes your contention that "we're talking gang bangers, old enough to join the army," unless, that is, the army is now recruiting adolescents and children:
"A total of 677 adolescents and children were shot at, among whom 429 (63 percent) had gunshot wounds and 36 (5.3 percent) died from their injuries... Handguns were the most frequently used type of firearm."
Posted by: Jay Jerome | March 24, 2008 at 12:46 PM
Brett: "For "innocent kids", in this context, we're talking gang bangers, old enough to join the army, who happened to not be engaged in a crime at the moment some rival gang member killed them. Actual "innocent kids" hardly ever get shot."
I'm sorry, this is just ignorant. Here are some stats on victims under 18 in LA county in 1994 (from the NEJM):
"Further analysis of the 429 children and adolescents who were injured revealed that 303 (71 percent) were documented members of violent street gangs. Of the injured gang members, 99 percent were African American or Hispanic, and 89 percent of them were boys. Among the victims who had firearm injuries, 122 (28 percent) had no gang affiliation; for the other 4, it was unknown whether they were involved with a gang. Ninety-eight percent of those with no gang affiliation were African American or Hispanic, and 81 percent were boys."
That's 429 victims who are not old enough to join the army, etc. Of them, 122 had no gang affiliation. In one county.
Admittedly, that's from 1994, but it's not really clear to me why gang members' aim would have become more accurate since then.
The first page of the google search that gave me this study also produced some articles like this: Grief over shootings of two 4-year-old girls.
Posted by: hilzoy | March 24, 2008 at 12:49 PM
crossposted with Jay, citing the same study.
Posted by: hilzoy | March 24, 2008 at 12:51 PM