Heller's Indictment of Originalism

by publius

Ok – let’s talk Heller. The question in Heller was not “individual” versus “collective” right, but whether the individual right must relate in some way to militia service. The Court said no, in a 5-4 party-line vote. I’m not crazy about the result, but I don’t care that much about guns. The reasoning, however, is far more troubling. Scalia’s opinion is blatant results-oriented analysis dressed up as rigid historical analysis. The idea that this result is compelled by the history is, frankly, absurd.

There are a million things about Heller on the Internets, so I’m limiting myself to this one point – the Heller opinion is an indictment of originalism. In particular, it shows the gaping weaknesses of a methodology that says our constitutional rights should turn on the ability of non-historian judges and law clerks to sift through cherry-picked snippets of early American history. Stuart kings should be less relevant than the realities of 21st century urban violence on this particular issue.

To begin, let me emphasize that history shouldn’t be irrelevant to constitutional analysis. It can be a valuable tool when the historical record is fairly clear. For instance, let’s say Congress decided to put images of our troops on quarters (25 cent pieces), and someone sued saying the Constitution prohibits “quartering” of troops. History there clearly illustrates that the text doesn’t refer to coins. Similarly, the “domestic tranquility” clause isn’t a basis for a federal domestic abuse statute. So yes, history can be relevant and even dispositive.

But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations. At this point, courts lack the institutional competence to decide which side’s cherry-picked history citations are more accurate. Judges aren’t historians. They haven’t been trained that way. They have no idea whether the subset of materials being presented is representative and sufficient and so on. Thus, when it’s close, courts need to move on to other interpretative methods.

In Heller, the opinion itself illustrates how unclear the record is. Both sides present historical examples that, taken alone, support their point well. But the evidence doesn’t compel a conclusion either way – particularly from institutionally incompetent judges. It can retroactively justify the decision, but it’s not determining the outcome.

Even if you’re not persuaded by Stevens’ dissent, he at least notes several powerful challenges to Scalia’s historical analysis. Just off the top of my head – (1) the original draft of the Second Amendment was more military-related; (2) several state constitutions explicitly mention self-defense, unlike the federal one. And there are many others. Again, I don’t want to get into a historical debate because it’s silly. The point is that Stevens provided several examples that, at minimum, complicate Scalia’s overly-rosy historical record (which of course neatly held up to a 5-4 vote).

But moving beyond Heller, the extensive use of history in complicated situations has at least two other major problems: (1) it’s anti-democratic; and (2) it’s completely divorced from real-world considerations. More on each below the fold:

History and Transparency

As noted above, the originalist reasoning in Heller makes the scope of the law depend upon conclusions about history. Thus, our constitutional rights will be defined by amateur historians’ ability to cherry-pick the historical record.

Aside from the epistemological problems, it’s worth noting how utterly non-transparent and undemocratic this methodology is. In the Middle Ages, priests kept power by using a language (Latin) that only the educated elite could understand. Similarly, the Court’s tedious examination of dueling history books makes the opinion unreadable, and prevents the larger public from having a meaningful debate about it.

I mean, this is a problem with law opinions more generally. But debates about text and structure and policy and institutional allocation of power are least potentially accessible to the public.

Hell, I teach law and I can’t even get through the tangled 157-page mess that came down this morning. More to the point, it’s impossible for me to realistically assess the historical validity of these claims. To have fully informed decisions on close historical questions like these from the 1790s and earlier would require you to take a few years off and work on a history Ph.D. Thus, the dueling history opinions are not so much wrong, as they are unverifiable either way. I’m honestly not competent to assess them.

It shouldn’t be that complicated. If it is, we’re doing something wrong. Heller was an indulgence of amateur historians pretending to interpret important constitutional rights on the basis of the historical record. The opinion is completely inaccessible to the American public.

Policy

Another problem with the originalist methodology in Heller is that it ignores modern policy. I mean, don’t get me wrong – I care very deeply about what Antonin Scalia thinks of the Stuart kings. And he’s very clearly qualified to express opinions about them. But violence levels in DC strike me as a bit more relevant to the question at hand.

That’s not to say that courts should impose their own policy, but only that they should take modern policy into account on questions where the text and history are indeterminate. For instance, here, it seems worthwhile to note the difference between modern urban conditions and the Glorious Revolution.

If nothing else, the policy concerns could convince the Court that they’re not competent to make these decisions. Thus, maybe policy considerations would persuade them to allocate authority to legislatures and review them under a very deferential standard. (Again, that’s one benefit of process theory for liberals – it’s internally consistent and pro-democratic. This post, for instance, is fully consistent with my opposition to both Kennedy and the Exxon case, both of which contemplate enormous judicial power.)

We got no such thing here though – no real modern debate of any kind. We also got no sense at all of what lower courts should do in the inevitable wave of litigation to come. But we did hear detailed discussions of the Stuart kings. And that’s really what’s important – you know, what Scalia’s clerks thought of the Stuart kings.

UPDATE: Professors Levinson and Balkin both have interesting posts up that touch on some of the same issues. Professor Solum has a roundup of commentary.

Comments

[RMcD]

Great post. It also seems suspicious here that the segment of the court most hostile to the "rights revolution" has just expanded it significantly, and in ways that override at least a century of well-established jurisprudence. In that way, it reminds a little of Bush v. Gore, if not so obviously absurd. Of course, this time that irony can be seen as cutting both ways, making this case low hanging fruit for the victorious 5. But that's just your point again--"originalism" here is really just a mask for power and interest.

Although I dislike the decision and would prefer some democratic deference to states and localities, the pragmatist in me wonders if liberal alarm is overwrought, just like conservatives bedwetting over Miranda or Kelo. The practical question will ultimately be determined by the effects of this decision, not its reasoning. Sure, that reasoning can always spiral out of hand in later cases. But if cities like DC get considerably more violent, wouldn't we expect future courts to moderate this finding?

[jrudkis]

Thus, our constitutional rights will be defined by amateur historians’ ability to cherry-pick the historical record.

...

Isn't this the description of a Justice in every decision, whether medical, scientific, or anything else? Somehow I see Rowe as being far more egregious an example of justices working outside their realm than one dealing mostly with decisions, laws, and definitions.

[Brick Oven Bill]

One Publius says:

But the value of history to constitutional interpretation largely vanishes when the historical record isn’t clear – e.g., when it plausibly supports both interpretations.

An earlier Publius says:

To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

I’ll stick with number two. Well done Justice Scalia.

[Chris Crawford]

I think that the real problem here is that American politicians lack the political courage to do what the Founders expected: amend the Constitution to keep up with the times. Indeed, the Founders fully expected the Constitution to be thrown out and re-written at regular intervals, with amendments providing temporary patchwork corrections. But in fact, we have retained the original Constitution for more than 200 years, and we have amended it very little.

A variety of issues have arisen that require fundamental clarification. Gun control is one of them. When the Second Amendment was written, guns were a necessary part of frontier life, to hunt game as well as to provide protection from Indians and criminals in an environment with very few police. Moreover, guns weren't very destructive back then: the muskets and pistols available were single-shot, required about one minute to reload, and were both expensive and inaccurate. Things have changed. Nobody feeds themselves by hunting; there aren't any marauding Indians; we have adequate police forces everywhere; and a teenager can purchase with his allowance money a weapon that would enable him to single-handedly wipe out the colonials at Bunker Hill. It would seem then that applying the historical interpretation of the Second Amendment is absurd. What we need is an amendment to the Constitution that recognizes these changes. I'm not averse to an amendment that explicitly guarantees an individual right to own handguns; I just want to see the issue hammered out by society and formulated in law. Relying on the courts to pick every last nit and comma is political cowardice certain to lead to bad results.

[kovarsky]

all this is obscuring the real question for the day:

is there a bigger dick in the galaxy than david addington?

[Sebastian]

"Again, I don’t want to get into a historical debate because it’s silly."

It isn't. You can't claim that Scalia is cherry picking unless you know that his answer is wrong. If you don't want to get into the historical debate, you can't know that it is wrong.

Part of the reason why there hasn't been much litigation on the 2nd amendment is because it is so darn obvious that the collective rights idea is wrong. (Obvious enough that literally no one even thought of it until about 60 years ago.) No other right in the Constitution gets the treatment that the 2nd does.

Aside from the epistemological problems, it’s worth noting how utterly non-transparent and undemocratic this methodology is. In the Middle Ages, priests kept power by using a language (Latin) that only the educated elite could understand. Similarly, the Court’s tedious examination of dueling history books makes the opinion unreadable, and prevents the larger public from having a meaningful debate about it.

I mean, this is a problem with law opinions more generally. But debates about text and structure and policy and institutional allocation of power are least potentially accessible to the public.

Is it easier than investigating penumbras? Yes. Is it easier to understand than Kennedy fabricating a moral consensus out of thin air? Yes. I completely disagree with you about interpreting the text. If that isn't accessible, neither is the free-form stuff that living constitutionalists want to do. Ask someone who has never heard of Roe v. Wade to justify a right to abortion from the Constitution. Then see if they can come up with the trimester system. You think textualist analysis is hard? Try that.

Scalia's understanding of the text is EXACTLY what the lay reader of the Constitution has thought about the 2nd amendment for essentially 200 years. When you poll Americans about an individual right you get more than 70% of them thinking that the text gives one.

Scalia's opinion is exhaustive only because it has to cut through 45 years of psuedo-intellectual masturbation on the topic.

Have you read any of Volokh's work on the history of the amendment? Because it is comprehensive and completely devestating to the idea that there wasn't a strong individual right.

"If nothing else, the policy concerns could convince the Court that they’re not competent to make these decisions. Thus, maybe policy considerations would persuade them to allocate authority to legislatures and review them under a very deferential standard."

Whoa. You defend the result of Roe right? You think that the Court isn't competent to touch on criminal policy but that it can set medical policy? And that it gets to do so for a non-explicit right but has to back off on an explicit right? How does that work?

And where do you get off worrying that an examination of history is anti-democratic. Again, hello abortion rulings? Where did your democratic concerns go there? Hello death penalty ruling. Where are your democratic concerns there now?

"The opinion is completely inaccessible to the American public."

The 2nd amendment however isn't. And Scalia's opinion is exactly in line with what any casual reader of the 2nd amendment who hadn't already heard the modern anti-gun line would expect.

[now_what]

When the Second Amendment was written, guns were a necessary part of frontier life, to hunt game as well as to provide protection from Indians and criminals in an environment with very few police.

No, when the second amendment was written, guns were seen as necessary to kill British soldiers, or anyone else who ignored the rattlesnake on the flag.

It wasn't about hunting, and it wasn't about law enforcement.

I've grown very disillusioned with the gun rights advocates, I'm disappointed in the court ruling, and I think a large proportion of gun owners are simply nutty. I wouldn't allow a gun in my house, I would try to avoid going to someone else's house if I knew they had one.

But weak arguments don't do your side any good. The purpose of a militia is not to go hunting. The purpose of a right to bear arms is not to scare off burglars.

[Chris Crawford]

now_what, I don't understand your reasoning. You assert that:

when the second amendment was written, guns were seen as necessary to kill British soldiers

But when the Second Amendment was written, the war with Britain had been over for six years, and there weren't any British soldiers to kill. And there's no need for us to speculate on the unwritten intentions of the Founders here; the fact is that guns WERE used for hunting, and they WERE used for defense against Indians on the frontier. These factors were not explicit in the Second Amendment, and I do not claim them to be. But they were most definitely part of the historical context in which the Second Amendment was written.

Besides, I'm not a gun rights advocate. I think that we should have limitations on gun ownership. I'm trying to approach the problem with intellectual integrity.

[now_what]

But when the Second Amendment was written, the war with Britain had been over for six years, and there weren't any British soldiers to kill.

There weren't any British soldiers left to kill in America, and there was a reason for that. They could come back of course.

[Bruce Baugh]

I've said this before and will again: the very heart of the "widespread gun ownership checks tyranny" argument has been tested and failed completely.

For twenty years or more, political discourse in a whole lot of online forums was swamped by people telling the rest of us how the US was getting ever more tyrannical, and that the day would come when on some flimsy pretext the government would abandon habeaus corpus, engage in unlimited surveillance of everyone it felt like spying on, arrest people on arbitrary grounds and then abuse them any way the captors felt like, and so on.

It turns out they were right about that part.

They also told the rest of us that when this happened, they would rise up en masse. They would free unjustly held prisoners, put terror into the hearts of agents of tyranny, maybe even overthrow the tyrant him/herself. (As the '90s went on, the hypothetical tyrant was increasingly likely to be portrayed as a woman.) And did they? Did they hell.

There are no martyrs from the RKBA crowd. Their organizations sometimes join in efforts mostly initiated and staffed by others, but apart from objections to a handful of specific proposed restrictions on gun sales and such, one hears of no RKBA leadership on any of the rest. To the contrary, one hears a great deal of cheerleading for warmaking abroad and tyranny at home as long as all the right people get it, and one hears silence. Where are those freed prisoners? Nowhere. Where are those terrified agents? Nowhere. It was all the purest bloviation.

It's really very rare for such ambitious claims about what one will do oneself and what one's allies will do in a moment of profound crisis. But Bush/Cheney gave us all the chance. And all of you going on about how guns keep the republic safe and free are completely full of it. All the things you warned us about came to pass, and where are you? Right here with the bulk of us, and well behind some - there are individual posters here who as single people have done more actual good for American liberty than half the membership of the NRA and such groups.

It's liberal lawyers, academics, journalists, and the like who are actually pressing the government, pretty much, and liberals at large funding them, while conservatives and libertarians (with way, way too few exceptions) either cheer and keep voting for the tyranny or sigh and shake a finger and then keep voting for it. The RKBA claims about guns' role in society are demonstrably false for America at the beginning of the 21st century, and no amount of dithering over 18th century will change that. The Second Amendment as constituted is useless not because of then, but because of now, because of you its champions.

[Bruce Baugh]

PS: It will of course be a glad thing if the bloviators ever do get serious about fighting tyranny, because tyranny is really bad and needs all the opposition it can get. But I'm not holding my breath waiting - it seems like we are instead well into the phase where all the loyal cheering section for the tyrant busily tries to pretend they didn't say things. I fully expect lawsuits against Google, the Internet Way-Back Machine, and the like from right-wing legally minded folks who wish their embarrassing words better hidden.

But hey, always glad to see clues, if and when they break out.

[kovarsky]

sebastian,

i am assuming that you are not really familiar with the material you are discussing. but first, a logical error:

"You can't claim that Scalia is cherry picking unless you know that his answer is wrong. If you don't want to get into the historical debate, you can't know that it is wrong. "

First, you can know that there is cherry picking going on even if you believe the answer is right. Second, "i don't want to get into the historical debate" means that it's not a productive discussion to have when the author is looking to make another point.

More importantly, you seem to hew to a fairly tortured understanding of the understanding of this right through the 20th century. It is actually the "individual rights" critique which is the new kid on the block, not the collective rights critique. It is the scholarship of sandy levinson, et al. that moved this debate from the fringes of the NRA to mainstream moderate acceptability.

I think that you can make a good case that the framers understood the right to belong to individuals, unconstrained by the purpose of arming a militia. What I don't think you can do is argue that the Supreme Court has been off the reservation all these years in not seeing it that way, since I'd guess that not one judge on the BURGER court would have voted with Scalia today.

You seem to think that you have several "boo-ya" moments, most notably when you force some analogically shite comparison to Roe but again, you're prone to inferring widespread opinion about a case from caricatures of that opinion, rather than the source material. Most law scholars will tell you that Roe was wrongly decided (I bet publius would). The issue there is stare decisis.

And you simply fail to grasp on a very fundamental level, the meaning of publius's "undemocratic" quip. He's not saying that the result is undemocratic (holster your rehearsed roe diatribes). he's saying that the method of cherry picking and complicating history is anti democratic because it makes the meaning of contested issues inaccessable to a public now incapable of having a debate about it. I'm not saying I agree or disagree with it, but you seem simply to misunderstand the point.

all in all, this was the right decision, with very weak opinions on both sides. i would have preferred to see roberts or alito right this one. like boudemienne, it's a tough question. it's a shame that nobody can acknowledge the tension in the predicate material and accept that the evidence is not stacked decisively in favor of one outcome.

[Jesurgislac]

To be fair, Bruce, it's also hard to see how "gun ownership" ever could fight tyranny of the Bush/Cheney kind. What could the NRA members do with their guns in response to the rigged elections or warrantless wiretapping or the denial of habeas corpus? For all I know, Glenn Greenwald owns a rifle: but he didn't fight warrantless wiretapping with it. The NRA bloviating about how these weapons would fight tyranny was nonsense from the start - it belonged to The A-Team fantasies rather than the real world. People want to own guns because they like to own guns, not because private gun ownership has any point or use for the vast majority of people in urban areas.

[Bruce Baugh]

Jes: To be fair, Bruce, it's also hard to see how "gun ownership" ever could fight tyranny of the Bush/Cheney kind. Quite true. But honestly, if you go back and look at pro-RKBA rants of the '80s and especially the '90s, you find a significant number of people writing about a scenario with a lot of the features we actually have. It's just all being done by people who profess in public to believe in God, often go to church, hate teh gay but of course make exceptions for their relatives, claim to respect business, and absolutely aren't letting in the UN's blue-helmeted thugs. They spent a generation telling the rest of us how set they were for it. It's more of a failure on their terms than yours or mine.

(Quite separate from that stuff, there is a class of people I belong to who do get some use out of firearm ownership when they're properly trained: disabled people, especially poor ones. Too many disabled Americans live in areas where adequate police response just doesn't exist, and a trained firearm owner can repel a burglar or other intruder with a competent display and no shooting. I know something like half a dozen people who've done this, who really lack other means of self-defense. But then none of them are opposed to licensing that calls for the periodic display of competence to the authorities, either, partly because they all enjoy the exercise of target shooting - it's good upper-body exercise, among other things. But that has precisely zero to do with the RKBA fantasy.)

[Martin]

Originalism says we must surrender our ability to make decision to the people who were living 50, 100, 200 years ago. This is the incorrect premise of originalism that renders it an obstacle to good jurisprudence. This post, while excellent, actually doesn't go far enough; even if the historical record is clear, that is no excuse for letting people who never saw a slum or a handgun make decisions about how handguns should be handled in slums.

[Brett Bellmore]

"the Heller opinion is an indictment of originalism."

No, it isn't. It's an indictment of Scalia. You don't get on the Supreme court if you're a consistent originalist, you simply don't. Neither major party has any desire to be limited to only those powers an originalist reading of the Constitution would give them. The only difference is that, for political reasons, Republicans have to make noises about wanting originalists. But they never nominate actual originalists to the Court.

Scalia wanted to uphold the 2nd amendment, but could not uphold an originalist second amendment, because that would, unambiguously, involve a right to military arms. And Scalia simply does not overturn long established laws, like the NFA.

So Scalia had to craft a faux originalist opinion, with originalist elements, but rejecting a genuinely originalist conclusion. But he didn't craft it because an originalist opinion was impossible, he crafted it because he didn't want to uphold the right the 2nd amendment really embodies.

It does not prove something is impossible, when somebody sets out to do something different.

[OCSteve]

Scalia’s opinion is blatant results-oriented analysis dressed up as rigid historical analysis. The idea that this result is compelled by the history is, frankly, absurd.

You’re probably right – the legal stuff is over my head. However, the historical analysis in the dissent appears to lack some rigidity as well – as in out and out mistakes.

…at p.2 of the Stevens dissent he refers to NFA and US v. Miller: "Upholding a conviction under that Act, this Court held that..."

Same mistake the 9th Circus made years ago and had to issue a new opinion, since Miller was never convicted -- commentators noted this was pretty suggestive the court hadn't bothered to read Miller before citing it.

Other factual errors are cited as well. (via Insty). IANAL, but it seems to me that if you are going to base your dissent on a historical case you might want to at least get the outcome of that case correct.

[cleek]

Scalia's understanding of the text is EXACTLY what the lay reader of the Constitution has thought about the 2nd amendment for essentially 200 years. When you poll Americans about an individual right you get more than 70% of them thinking that the text gives one.

i like this new talking point the right is using. it makes me smile deep inside. poll data from 1815 ? awsm. i bet the data's accurate, plentiful and reliable.

so, those 70%, what did they think the first 13 words of the amendment were saying ? or did they simply ignore them (as Brett tried to claim, yesterday) ? crosstabs, baby, yeah.

[Harald K]

Chris Crawford: "I'm not averse to an amendment that explicitly guarantees an individual right to own handguns; I just want to see the issue hammered out by society and formulated in law. Relying on the courts to pick every last nit and comma is political cowardice certain to lead to bad results." It's not exactly cowardice to don't pick fights you can't possibly win. There are institutional reasons for this - a system set up to make passing or changing any laws, let alone the constitution, far more difficult than blocking laws. This is bad. It's a fundamental misfeature of the constitution, simply speaking. It has resulted in leaving far too much to high court judges, who have by necessity built a gigantic system of interpretation of it, a veritable Talmud. So, far too much crucial decisions about what kind of society we should have is left to the "priests", out of reach for voters.

[publius]

yeah seb - i'm going to have to agree with kovarsky on several points. i'm not sure how anti-roe tirades are relevant to the point about amateurs dealing with an extensive, complicated and mambiguous historical record.

and look, eugene volokh is a very smart guy - smarter than I am to be sure. but he's not a constitutional historian - his undergrad degree is in computer science. i'm sure he's read a lot and all, but that's not really what we need here.

again, the point isn't so much that one side is wrong or right but that the record has a million data points that are contradictory. you only don't think so if you cherry pick or reduce the sample.

[stonetools]

Totally OT, but shouldn't a female writer be called "Publia" instead of " Publius"? OR did my high school Latin teacher get it wrong about Latin genders? Just had to get that off my chest :-)

[Brett Bellmore]

"poll data from 1815 ?"

We don't have polling data from 1815, but we do have an essentially complete lack of any evidence that ANYBODY thought the 2nd amendment was anything besides a guarantee of an individual right, back then. And plenty of evidence that people thought it an individual right.

The notion that it wasn't an individual right was essentially a 20th century creation of people trying to work around the 2nd. There was no reason for anybody to resort to such a rationalization prior to a movement for federal gun control; With the 2nd amendment not applying to state efforts, people who wanted gun control had no reason to lie about it, it didn't get in their way at the state level.

[stonetools]

The problem with Scalia's ruling seems to me that he wants to have things both ways. He wants to proclaim that there is an individual right to bear arms but he wants all the restrictions on firearms to remain in place. But thats seems impossible.
Why, exactly,should I be allowed to possess a semi-automatic 9 mm for self defense, but not a fully automatic AK 47, a short barreled shotgun, or even a SAW ( .50 caliber heavy machine gun). If I have the right to keep and BEAR arms, shouldn't I be allowed to carry my weapon in public, concealed or unconcealed?
If the right to keep and bear arms is like to right to vote, then shouldn't we do away with any attempt to restrict that right with onerous licensing and registration requirements and special taxes?
Scalia just airily comments that nothing in this decision should be taken to affect the current restrictions, as if this is a purely abstract debate about labels, but it is hard to see why he thinks Heller should have no effect on current statutory restrictions.

[Brett Bellmore]

"but it is hard to see why he thinks Heller should have no effect on current statutory restrictions."

There's no logic behind it except the minor matter of counting to five. We don't have five Justices willing to overturn existing federal gun laws. Except possibly the Lautenberg amendment, that's a constitutional obscenity on multiple fronts.

[cleek]

We don't have polling data from 1815

then why don't you guys stop talking about it like you do ?

but we do have an essentially complete lack of any evidence that ANYBODY thought the 2nd amendment was anything besides a guarantee of an individual right, back then.

and again, you have nothing on what they thought those first 13 words meant ?

And plenty of evidence that people thought it an individual right.

it's certainly more useful to interpret it that way, if your life is one where a gun is a near-necessity. that doesn't mean people they sat down and studied the text of the amendment and came to your preferred conclusion.

[Brett Bellmore]

I think it's pretty difficult to argue that 18th and 19th century Constitutional scholars didn't "sit down and study the text of the amendment". We've got George Tucker and Judge Storey, contemporaries and near contemporaries of the authors and ratifiers, who agree with us.

[cleek]

I think it's pretty difficult to argue that 18th and 19th century Constitutional scholars didn't "sit down and study the text of the amendment"

18th and 19th century Constitutional scholars? wow! that's a big shift. i thought we were talking about everyday people and how they understood it. certainly that's what you were insisting yesterday, and what Sebastian is talking about, above.

[Brett Bellmore]

Look, Cleek, we've got extensive evidence for people, ranging from constitutional scholars to ordinary folks, thinking it's an individual right, and zip in the way of evidence ANYBODY thought it was something else, prior to the early 20th century.

Your guys on the Court couldn't even get Miller right, apparently didn't read enough of the case to realize Miller was never convicted. Pathetic.

[CharleyCarp]

No, no, no, no, no, no, no.

We have to look at the history to understand what rights they were protecting, just as we have to look at the history to understand what the law is.* It's of no relevance if you or I are not competent to judge some particular historical debate or another -- I'm not a gun guy either -- it's the job of the advocates to present their best honest case, and of the judges to choose. Lose that, and we become what the wingers say we are.

Now I think Justice Scalia is an intellectually dishonest hack, and have thought so since I started reading his opinions in earnest 20 years ago. So I'm more than prepared to believe that he's engaged in his usual practice here. That's no indictment, though, of trying to measure the rights based on the historical context (always keeping in mind Chief Justice Marshall's admonition that we're not to expect a level of detail in constitutions that we would find in statutes or regulations).

* Like most lawyers, I've had my share of examples of the need for this. Is a claim that a contingent fee was excessive jury triable? Is there any merit to the claim that Congress exceeded its powers under article I when it created the federal thrift system? Can Congress cut off habeas corpus for civilians held in an offshore prison, completely under the control of the United States? Is attempted bribery of a witness admissible, and is a ruling that it isn't reversible error? Is the espousal by the US government of a citizen's claims against a foreign sovereign a compensable taking under the Fifth Amendment? Can a federal court dismiss a claim for money damages because an identical claim is pending in the courts of another country? Can a victim of terrorism get an award of punitive damages against Iran's Ministry of Intelligence, and was the law on this question changed in October 1998 (when Congress passed a statute including waiver authority, which the President exercised)? All of these and more require presentations on the history, and as an advocate, one cherrypicks at one's peril.

[John Spragge]

Just two nits:

A) Hunting rifles had little or no military utility before the invention of the Mine system in the late 1850s (just in tie to make the US Civil War hellish). In the American Revolutionary war, pace the myth, the colonials won (a) with French sea power, and (b) fighting according to 18th Century European convention, in standard infantry formations, robotically loading and firing together. The idea of the heroic frontier Natty Bumpo defeating the "redcoats" has at least two flaws:

- A fair share of the actual frontier folk took the Loyalist side; see the history of the King's Royal Regiment of New York.

- The Hessians the British hired included a goodly share of Jeagers; military forest rangers, with weapons and tactics for arboreal combat which simply worked better (rifle with sword mounts, for one thing) than anything the revolutionaries had.

B) Frontier settlers needed guns to protect them from Indians the way people making unauthorized bank withdrawals today need guns to protect themselves from guards, tellers, and police officers.

[cleek]

Look, Cleek, we've got extensive evidence for people, ranging from constitutional scholars to ordinary folks

cite?

note that you've set the bar at "majority".

[rea]

You want originalism?

From the English Bill of Rights, 1689:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

http://www.yale.edu/lawweb/avalon/england.htm

Is it not likely that "the right of the people to keep and bear arms" which must not be infringed" (note that the language indicates a pre-exisiting right) is the right guaranteed by the earlier English Bill of Rights (with allowance for the American rejection of an established protestant church)?

And doesn't both the "well-regulated" language in the American Bill and the "suitable to their conditions and as allowed by law" language from the English Bill indicate rather plainly that the government can regulate the heck out of weapons?

[Jesurgislac]

Look, Cleek, we've got extensive evidence for people, ranging from constitutional scholars to ordinary folks, thinking it's an individual right, and zip in the way of evidence ANYBODY thought it was something else, prior to the early 20th century.

Yes, Brett, but historically, I think you'll find that's because until the early 20th century no one saw any need to regulate firearms. I know the UK's first legislation regulating ownership of firearms became law in 1903. Legislation came in after guns and ammo became cheap and widely available and it became clear that regulation was needed.

There's zero evidence that the Second Amendment was meant to apply to anything other than the provision of a well-regulated militia, just like it says in the text: it seems unlikely in the extreme that it ever occurred to the authors of the Bill of Rights that there would ever be a need to regulate individual possession of firearms, since that need arrived with cheap and mass-produced firarms which did not exist in the 1790s.

[Brett Bellmore]

Hell, we provide any evidence at all, and you're out of luck, because you've got none for contrary views in that time frame.

I'd suggest you read some of the amicus briefs on the winning side, this was covered extensively. http://dcguncase.com/blog/case-filings/

[CharleyCarp]

Spragge, I agree that French naval power was essential, but I also don't think one can or should ignore the impact of the victories at Bennington and Kings Mountain on the campaigns of which they were part.

I just re-read Miller. The fact that is was up on dismissal of the indictment rather than conviction has nothing to do with the holding, and an error on this point is the kind of meaningless nitpicking that people who don't understand how law works get all caught up in. I haven't read the cases cited in n.3 -- only the Story commentary, which isn't as supportive of people just buying any old gun they want as some of the advocates would have it.

[cleek]

the "well-regulated" language in the American Bill

you can interpret "well-regulated" in the same way you'd interpret "regularity" in reference to your bowels: working smoothly and reliably.

what's working smoothly and regularly, though? the Militia, of course.

but all that stuff is in the vestigial first 13 words, which i've been told we can just ignore. Madison had a thing for whimsical non sequiturs, i'm told.

[Brett Bellmore]

"I think you'll find that's because until the early 20th century no one saw any need to regulate firearms"

I think you'll find that the first real gun control laws in America came shortly after the Civil war, as an effort to keep newly freed slaves defenseless against the Klan.

Nobody tried to regulate them at the federal level until the 20th century.

[CharleyCarp]

REA, here's what Story had to say about that: But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.

[cleek]

Hell, we provide any evidence at all, and you're out of luck, because you've got none for contrary views in that time frame.

again, the bar is "majority", and "as understood by the common man". none of this "scholar" nonsense.

I'd suggest you read some of the amicus briefs on the winning side, this was covered extensively. http://dcguncase.com/blog/case-filings/

any in particular? i'm not interested in sifting through NRA propaganda to find your evidence for you.

[Jesurgislac]

cleek: you can interpret "well-regulated" in the same way you'd interpret "regularity" in reference to your bowels: working smoothly and reliably.

And cleek wins the thread.

[Brett Bellmore]

Charley, he was pointing out that the British were attacking the right, and contrasting them to us.

[von]

So lawyers don't have sufficient ability to do history as it relates to a legal text, and so shouldn't try, but do have the sociological and political training to assess how the meaning behind the text means in the present day?

This doesn't make a lot of sense. Is your argument is that constitutional issues should largely be fought out through the legislative process?

[cleek]

adding, re: Brett's research:

and, really, what i'm looking for is evidence that:

a) people really understood 2A to mean what you want it to mean.

and

b) that they actually read it and understood the text to mean what you want it to mean.

i'm not talking about what people want to believe, or what they've been told. after all, a majority of Americans can believe something they don't understand or haven't studied, no problem.

[rea]

the first real gun control laws in America came shortly after the Civil war, as an effort to keep newly freed slaves defenseless against the Klan.

It was also not uncommon in the so-called Wild West, for the sheriff (e.g., Wyatt Earpe) to insist that anyone coming into town check ther guns in at the sheriff's office.

[CharleyCarp]

That's how I understand it, too, Brett. I still think Story puts sufficient emphasis on the militia aspect of the provision to make the holding in Miller a valid conclusion. I agree with you, though, that if the right is not as understood in Miller, then there's no realistic limit on the hardware involved. I don't think there's a valid case to make from this amendment about an individual's right to protect his/her home from a burglar.

[Mis En Place]

Outstanding comments by Bruce Baugh, though the RKBA movement does have its martyrs: McVeigh, Weaver, and Koresh.

I keep seeing Bret Bellmore's claim the Second Amendment has always been a guarantee of an individual right. But this flies in the face of several historical facts. First, the original draft of the Second Amendment indicated the military nature. Second, the only known dissent was a minority dissent in the Pennsylvania ratification convention seeking a guarantee to hunt game.

[OCSteve]

Slightly OT: My gut feeling yesterday was that this would take the issue off the table as far as the election goes. But I’m seeing more sentiments like this today:

5-4. Let that sink in, folks. Even though it was expected, it’s now official. Ponder it for a moment.

If the Democrats had appointed just one more Justice to the U.S. Supreme Court, there would be no individual right to possess firearms in the United States of America.

Kind of misses the point that Stevens was appointed by Ford and Souter by Bush41, but there’s no sense letting that get in the way of a good meme. Expect that as the new election issue I guess. The next president will likely have the opportunity to appoint a couple of new Justices and if it’s Obama the second amendment will be overturned by judicial fiat.

[Slartibartfast]

It was also not uncommon in the so-called Wild West, for the sheriff (e.g., Wyatt Earpe) to insist that anyone coming into town check ther guns in at the sheriff's office.

You want to trade gun-checking for the right of the law to pistol-whip as needed?

[Sebastian]

I think that you can make a good case that the framers understood the right to belong to individuals, unconstrained by the purpose of arming a militia. What I don't think you can do is argue that the Supreme Court has been off the reservation all these years in not seeing it that way

The Supreme Court hasn't been on or off any reservation all these years. It hadn't ruled on it. If you are relying on Miller to say that it did, you need to reread the case.

"And you simply fail to grasp on a very fundamental level, the meaning of publius's "undemocratic" quip. He's not saying that the result is undemocratic (holster your rehearsed roe diatribes). he's saying that the method of cherry picking and complicating history is anti democratic because it makes the meaning of contested issues inaccessable to a public now incapable of having a debate about it. I'm not saying I agree or disagree with it, but you seem simply to misunderstand the point."

My statement about his undemocratic thesis has nothing to do with results and everything to with his point about allegedly making contested issues inaccessible to the public. Scalia's arguments are at least as accessible as any of those of his liberal rivals and of any living constitutional proposal I've heard of. Publius claims that textual and historical analysis is less accessible than what the other judges do, and that seems very unlikely.

That is exactly why I raised Roe. You say that the 'real' debate about Roe is stare decisis. That is rather thick legal principle that is at least as difficult for a layman to digest as the idea that people used guns on a regular basis in the US. And of course being faithful to previous rulings has nothing to do with it when it was originally passed off by the Supreme Court. And that decision was at least as difficult for a layman to understand as any of Scalia's arguments in Heller. Further, it was at least as far from the Court's basic competence in areas of medicine as Scalia's is in history.

Same with the emerging moral consensus arguments in Kennedy. Your average layman would have a large difficulty understanding how that moral consensus could possibly exist when more than a majority of Americans appear to disagree with Kennedy.

Both of those are directly on point with what publius seems to be saying.

"and look, eugene volokh is a very smart guy - smarter than I am to be sure. but he's not a constitutional historian - his undergrad degree is in computer science."

That is incredibly crappy and dismissive. Volokh's graduate degree was in law. He is a law professor. He clerked for the 9th Circuit and then the Supreme Court. He is the author of quite a few law review articles directly on this point including the history of the 2nd amendment. He is in fact a constitutional historian on this point.

He's just a smart comp-sci geek? Meh.

[cleek]

the second amendment will be overturned by judicial fiat.

as if he could find judges who could and would do that and who could also get through the nomination process. i got a sneaking suspicion the GOP is about to rediscover it's love for the adversarial form of "advise and consent".

[Doctor Science]

A few brief comments, before I go do this thing we call "work":

It's an indictment of Scalia

I agree with Brett! We're talking about guns! bring my smelling salts.

publius, in your post you refer to: the Court’s tedious examination of dueling history books

Did they actually talk about the history of duelling? -- which is not IMHO irrelevant to the history of right to bear arms, not at all.

Otherwise -- what Bruce Baugh said, except that I personally do not know disabled people who've used guns for self-defense. But then, most of the disabled people I know are women.

[Katherine]

Did they address incorporation? I assume not because D.C. is federal--but, if not, isn't that a huge question mark for state & local gun laws in other jurisdiction? I'm ambivalent on the interpretation of the Second Amendment; the text is ambiguous & the purpose (preventing reliance on tyrannical standing armies anymore) simply cannot be accomplished anymore--I maintain that suing military contractors does more to guard against the abuses the founders feared than gun ownership. OTOH, the text is ambiguous, and neither the "right to join the militia" nor the "right to private ownership" is entirely satisfactory, and I'm sympathetic to idea that you should err on interpreting the bill of rights broadly.

But, as far as the current 14th Amendment incorporation tests, I think the right to own guns fails the "fundamental to ordered liberty" test with flying colors. I know Thomas prefers to rely on the privileges & immunities clause instead; it's a decent textual argument but you have to overturn over 100 years of precedednt to get there & I have no idea which other justices are on board.

[OCSteve]

Very even-handed treatment by Sandy Levinson here (via Insty).

A good point on the individual right question:

Whatever might have been the case in 1787 with regard the linkage of guns to service in militias—and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge—there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship. One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so. Thus, in effect, they could not be citizens.

[CharleyCarp]

bring my smelling salts.

Second that!

Katherine, there's a vague footnote about incorporation, so it's left for another day.

[CharleyCarp]

Is your argument is that constitutional issues should largely be fought out through the legislative process?

von, I think you'll find plenty of this in publius' oeuvre.

For myself, I have no problem with it, except that the judiciary gets the last at bat, since it is the province and duty of the judicial department to say what the law is. Emphatically.

[jrudkis]

Katherine,

These are the only two points re: incorporation that I found in the main opinion:

Footnote from the controlling opinion that may indicate that the 2nd is not incorporated against the states:

With respect to Cruikshank’s continuing validity on incorporation,
a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by
our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252,265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

But this was interesting later in the opinion because it seems to say the Bill of Rights as a whole will be:

For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law

[OCSteve]

Volokh's graduate degree was in law. He is a law professor. He clerked for the 9th Circuit and then the Supreme Court. He is the author of quite a few law review articles directly on this point including the history of the 2nd amendment. He is in fact a constitutional historian on this point.

Not to mention that he was the first cite in the ruling and his law review articles were cited three times in total.

[rea]

this was interesting later in the opinion because it seems to say the Bill of Rights as a whole will be

So, we're going to require 12-person juries in civil cases and require grand jury indictments to commence state law criminal prosecutions?

[jrudkis]

Rea,

I guess that is why it is dicta: the sentence seems to say the Bill of Rights as a whole.

[von]

Scalia's opinion is better than Stevens', but it's simply too broad and gets bogged down in history that should be irrelevant. There's a ton of dicta in it. Some, particularly of the "this doesn't overturn the apple cart of federal gun control laws" variety, might be justified. Most is not.

Scalia is most persuasive in holding that the Second Amendment includes some individual right to gun ownership, apart from participation in a militia. Stevens' rejoinders on this point are seldom responsive and, where they are, are not persuasive. (The points that Publius mentions are, at best, ambiguous and could be read to support an individual right.)

[wonkie]

The Supreme Court has made three other recent rulings and there is a clear pattern: siding with the millionaires on campaign finance, siding with Enron agasint the rate payers of Snohomish County and siding with Exxon against the fishermen. That's your conservative Court at work. That's their values, their interpetation of the Constitution, thier understanding tof the purpose of goeverment , their beleif about who the law is supposed to protect.

One more Justice and they'll go after Miranda, Griswold, anti-discrimination laws and environmental regulations.

Then we can have a states where corporations can commit crimes with impunity but pharmacists can't sell birth control pills to married couples. Ricky Santorum's vision of the Utopia.

The stuff about originalism and undoing liberal activism is all eyewash.

[von]

von, I think you'll find plenty of this in publius' oeuvre.

For myself, I have no problem with it, except that the judiciary gets the last at bat, since it is the province and duty of the judicial department to say what the law is. Emphatically.

To twist a phrase, isn't that an exception that makes the rule?

My personal view is that Judges need to decide less. There is a legitimate role for strong judicial intervention to defend the privileges and immunities of minority groups from the assaults of a democratic majority. But too frequently the Court wades into disputes with policy judgments that are untethered to a specific right.

[von]

My use of the term "minority groups" is imprecise, because in some circumstances that "minority" may be composed of a single member (e.g., the person accused of a crime). But "individual rights" doesn't quite capture it either.

[wonkie]

My younger brother was conceived because my parents, who lived in pre-Griswold new Jersey, had to drive to NYC to get condoms. My brother is a wonderful person and the whole family is glad he exists but that isn't the point. Tthe piojnt is that their is a right ot privacy--a right that the Scalis's of this world want to take away.

Von writes that the purpose of the Constitution is to protect the minority from the assualts of the majority. I agree. I am going to phrase thigs a bit differently" I think the purpose is to prevent the majority from passing bad laws that unfarly or unjustly assault the explicitly listed or implicit rights of the minority. And that's exactly where the self=proclaimed orginalists or the self proclaimed conservatisves who want to roll back "liberal activism" have a different philosophy. Their philosophy is to side with power at every opportunity. Then they pretend that they aren't siding with power by rationaliZing that the Constitution doesn't give them a basis for protecting the minority. Screw the fishermen. Screw Shohomish county rate payers. The hell with married couples who want to limit their family size. So what is a company has been paying a female employee less than a man for years. Not the responsiblity of conservative judges to do anything about any of that.

[bc]

Is it easier than investigating penumbras? . . .

Scalia's opinion is exhaustive only because it has to cut through 45 years of psuedo-intellectual masturbation on the topic

Adding the above to the list of things I wish I had written. Go Seb.

i'm not sure how anti-roe tirades are relevant to the point about amateurs dealing with an extensive, complicated and mambiguous historical record.

and look, eugene volokh is a very smart guy - smarter than I am to be sure. but he's not a constitutional historian - his undergrad degree is in computer science. i'm sure he's read a lot and all, but that's not really what we need here.

This hits on a personal pet peeve-the notion that one has to be "smart" to discuss or argue about constitutional law. A "We the Smart People" line of reasoning. How about the presumption that the ordinary meaning should prevail?

It shouldn’t be that complicated. If it is, we’re doing something wrong.

Amen.

But violence levels in DC strike me as a bit more relevant to the question at hand.

to the legislature.

I think that the real problem here is that American politicians lack the political courage to do what the Founders expected: amend the Constitution to keep up with the times.

But why when it's so much easier to win elections to get the justice you like and Bork the nominated justice you don't like? The amendment process is so . . . tedious. And darn democratic. Easier to bypass all those ignorant red staters.

Nobody feeds themselves by hunting;

Have you ever tried to see how fast you can eat a 1900 lb. bull moose? Even with four kids that took a while for us.

And my 30-06 was a WWI infantry rifle no less, perfect for use as both a hunting rifle and a tyranny-busting militia primary weapon.

[dmbeaster]

To paraphrase publius' point, with which I agree, the problem with "originalism" is the phoniness of pretending that history lessons are the single and determinative method for resolving these questions.

Yes, the history is very useful in trying to understand what should be done, and should be given a high priority, but when it comes up ambiguous, then it is time to admit that some other logic is being used to decide the question. Scalia's conceit and deceit is to pretend that history is in fact the sole and final arbiter. And this is where I also constantly cross swords with Sebastian -- the pretense that this is all that is necessary and proper for judicial decision making.

It is as if Scalia was sitting there, carefully piling up historical motes on a scale, and surprise!, it just so happens that the tidbits weigh more heavily in favor of individual rights to gun ownership, and therefore the proper decision is revealed to us. That is pure bunk and Scalia is full of it to pretend that is how he makes his mind up on how to rule.

In this case, the history does, I think, suggest a policy that supports a finding of an individual right. That is persuasive, but it is stupid to pretend that the proper analysis depends solely on guesses on what people 200 years ago would have done if faced with the problem today. The analogy is to the 4th amendment and electronic surveillance cases -- is it an improper search? History tells us next to nothing on how to decide this (except for nonsensical long digressions into eavesdropping cases), except to suggest a policy. But the core of the reasoning extending the 4th amendment to such "searches" is a modern policy choice, and it is nonsensical to claim that such judicial decision making is some form of improper activism.

However, publius, I would drop the point about Scalia's methodology carrying an undemocratic taint. The whole friggin' institution of the Supreme Court is seriously undemocratic -- probably something not clearly anticipated in 1789 when they created a three part government with an overarching body of law called the constitution. Marbury v. Madison makes sense, but it results in lifetime appointees being the final arbiter on the core legal principles governing our country. The doctrine of restraint developed in the Supreme Court because of the awareness of this built in flaw and the undemocratic nature of this power -- it is a real politik doctrine the demonstrates the extent to which the whole process of constitutional interpretation is not some form of received wisdom based on history lessons.

[Carl Matthews]

As a non-lawyer trained as a historian, I see questions in the amendment of whether it offers an individual right, and I think it does, but it clearly modifies that right by mentioning the basis of a well-regulated militia. Of greater importance to originalists, I would think, is what it provides a right to. It does not mention pistols or guns. It says "arms." Arms were rifles, shotguns, and muskets in the 18th Century. Guns were artillery. Pistols were called small arms. Has anyone seen a militia inventory or supply list which included pistols as arms? I doubt it. The Court has invented a new right out of reverence for cowboys, gangsters, and the national lobbying firm for firearm manufacturers and handgun sellers also known as the NRA.

[Brett Bellmore]

"but he's not a constitutional historian - his undergrad degree is in computer science."

Yeah, but he's got a graduate degree, too; You might look up the subject, it will explain why he got cited in the opinion.

IOW, yeah, he IS a constitutional historian. Who happens to know some computer science...

[Turbulence]

This hits on a personal pet peeve-the notion that one has to be "smart" to discuss or argue about constitutional law. A "We the Smart People" line of reasoning. How about the presumption that the ordinary meaning should prevail?

You're continuing to distort publius' argument in much the same way that Seb has done. publius never said that Volokh wasn't smart; in fact, he said quite the opposite. But he also said that Volokh wasn't a historian and had not been trained as a historian. Most smart people are not historians; there's no shame in that. But I think we should be wary of accepting complicated historical arguments from people with zero training in history, just like we should be wary of accepting complicated medical arguments from people with, well, zero training in medicine. Don't you agree?

I'm afraid I don't understand the basis of your pet peeve though. Constitutional law is a field that requires some specialized knowledge and practice, just like the rest of the law is and just like most professions are. There is nothing wrong with that: most interesting subjects in life are hard and are not amenable to the average person unless they're willing to spend several years studying. Being "smart" is much less important than not being "ignorant"; I don't know what it would take to make the average person smart, but I have some idea of how to remove ignorance, and doing so takes more time and energy than most people are willing to expend.

[Sebastian]

"And this is where I also constantly cross swords with Sebastian -- the pretense that this is all that is necessary and proper for judicial decision making."

Ok, and I'm not sure you disagree with this based on the rest of your comment, but cutting out the originalism undercuts the argument that we need to respect the Supreme Court's opinon on the Constitution. Marbury v. Madison is about restraining the legislature from transgressing against the boundaries set by the Constitution. We are supposed to respect the Supreme Court in that because it keeps dragging people back to the Constitution itself.

If the Court gets to engage in the novel and exciting world of 'progressing', there really isn't any need for us to privilege its idea of progress over the legislatures. The only claim that the Court had over the legislature was that the Constitution's text was a higher law than anything the legislature made. That is a fundamentally conservative role for the court (essentially the legislature makes changes, the administration implements them, and the Supreme Court keeps them from making changes that are beyond the Constitution). Take away that function, and why should care what 5 members of the court say?

The problem with legal realism is that it undercuts the reason we should bother listening to the Court.

If it is really true the the Court is just 9 politicians voting their conscience on policy issues, I don't see why we need the Court. We can have legislatures vote their consciences on policy issues, and they can be voted out of office when they make mistakes.

To me this comes down to a fundamental disrespect of the amendment process. If you think that gun rights are inappropriate in the modern world, make an amendment. If you think that there is a moral consensus that the death penalty can't be used for child rapists, it should be easy to get an amendment. If not, maybe this isn't a great area for 'progressiveness' from the Court.

What really baffles me is that so many people on the left seem to want super-strict looks at abortion laws which don't even appear anywhere near the Constitution (which is not say definitevly that they aren't protected, that is a different fight) and an easy-breezy approach toward rights that explictly appear. Whatever you think about the 9th amendment, it surely doesn't suggest that the unlisted rights should be protected MORE than the listed rights.

[Sebastian]

"But he also said that Volokh wasn't a historian and had not been trained as a historian."

He is in fact a constitutional legal scholar published in the appropriate journals on the topic of the history of the 2nd amendment. He is also a professor of law, and clerked for the Supreme Court. Which makes the "computer science" dismissal kind of cheesy. And if you read his published-in-the-appropriate-journals articles you will find that he has a very comprehensive understanding of the history.

[jrudkis]

What exactly is the process to become a certified historian?

Is it like passing a bar exam?

[RMcD]

OK, so Sandy Levinson says:

"Whatever might have been the case in 1787 with regard the linkage of guns to service in militias—and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge—there can be almost no doubt that by the mid-19th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship."

Note, however, that he has chucked "originalism" out the window and appealed to a "mid-19th century" consensus. I wonder exactly what constitutional standing such temporal cherry-picking holds. Let's just ignore the two periods that actually matter: a) the ratification debates, where the "individual" right was never even discussed, and b) modern precedent, where the right has been read as "collective" for at least 75+ years. Think of all the other doctrines we'd get by such an interpretive method: white supremacy (even abolitionists accepted it!), bans on women lawyers, etc. Levinson's analysis is even worse than Scalia's.

[bc]

But he also said that Volokh wasn't a historian and had not been trained as a historian.

you're right, Turbulence, and I should have been more clear and less glib. I am using "smart" in that sense (you're not a historian therefore . . .). I specifically don't think you need to be a historian to interpret the 2nd A. Even if Volokh didn't have any legal training he would be qualified to comment on the 2nd A.

I look at a lot of the legal reasoning employed in constitutional law as being a version of the emperor's new clothes. A justice opines and says "look, see how pretty?" I say there is often not a lot there. Too complicated for sophistication's sake. These opinions were way too long on both sides as they typically are.

This is why I am in favor of non-lawyers getting appointed to the bench. Not all, but some would be welcome. Good, common-sense people and smart, just not "too smart" that they mistake the beauty of their prose and diction for actual legal reasoning.

[Pasota]

One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so.

Now that's originalism you can believe in!

[Jesurgislac]

Sebastian: What really baffles me is that so many people on the left seem to want super-strict looks at abortion laws

Does it really baffle you that so many people - on left and on right - care so much about basic human rights for women?

Thanks for the insight into how you think of women, Sebastian. Not.

[Bruce Baugh]

Eugene Volokh is of course a constitutional legal scholar published in the appropriate journals on the topic of the history of the 2nd amendment. He is also a professor of law, and clerked for the Supreme Court. who is jim-dandy with torture as long as it's all very earnest, and who's willing to indulge in some very outre speculations about the emotional lives of gay people without actually bothering to check. He's the sort of empathy-dead rationalizer who makes the regime of tyranny look good. Not someone I would be particularly glad to have on my side, or to trust to be doing anything but his usual schtick, which is rationalizing whatever the right authority wants to do.

Yes, it's true, none of that bears on the historical and otherwise technical details of this case. But after a lifetime of being hectored by conservatives about how character matters, I've come to agree. If my argument has to be made by bad people, I take that as a clue that some rethinking is in order, and if I see bad people consistently being advanced as authorities, I take the causes they're put forward for less seriously.

[Turbulence]

He is in fact a constitutional legal scholar

No one has questioned this. But note that "historian" is not the same thing as a "constitutional scholar".

...published in the appropriate journals on the topic of the history of the 2nd amendment.

All of the journal articles written by him listed at wikipedia are for law reviews. Now, law reviews are excellent places for law professors to publish articles on the law, but they're not places that have particularly exacting standards for historical analysis. As I understand it, law reviews tend to be edited by people who specialize in law rather than in history or medicine.

If you're aware of any relevant articles he's published in, say, the Journal of American History or some other widely respected academic arena where results are scrutinized by professional historians, I would greatly appreciate a mention.

He is also a professor of law, and clerked for the Supreme Court. Which makes the "computer science" dismissal kind of cheesy.

I think if you're determined to read publius' comment as a slight against Volokh, then yes, his comment was very insulting. However, a more charitable reader might instead conclude that publius' point was simply that an undergraduate education in computer science doesn't typically prepare one well for practicing the techniques of professional historians.

And if you read his published-in-the-appropriate-journals articles you will find that he has a very comprehensive understanding of the history.

I'm sure he understands a tremendous amount. But understanding a great many facts isn't the same thing as having the practice and judgment to produce fair assessments of the historical record, as opposed to a long string of cherry picked facts. I might not worry if Volokh regularly published his 2A historical work in reputable historians' journals where it would have to pass peer review and would be subject to peer critiques.

[jrudkis]

Taney's reasoning, however, probably can be used to prevent the 2nd from being incorporated by the 14th amendment. I suspect a strong argument can be made that the legislature and States did not ratify the 14th amendment with the intent of arming blacks. In fact, I don't think there is an originalist argument for incorporating the 2nd amendment. Anybody have one?

[Turbulence]

What exactly is the process to become a certified historian?

Is it like passing a bar exam?

I don't know...what exactly is the process to become a certified computer scientist?

There is no certification authority that I know of. Instead, there are a number of features that contribute to the assessment that someone is a computer scientist. Getting a degree in computer science helps, but is neither necessary or sufficient. Ditto for membership in professional societies. Publishing or doing widely recognized work in the field counts for an awful lot. The bottom line is that even though I can't give you a neat 1-sentence criteria for being a computer scientist, the concept is real and in practice, people can determine whether someone is a computer scientist with no trouble. I imagine the same holds true for professional historians.

[Bruce Baugh]

You can certainly tell whether someone belongs to either of the major historical associations in the US, has published articles in the historical journals or books in the historical categories of academic presses, and like that. It is of course entirely possible to be an excellent scholar without such credential-making features - if the late Barbara Tuchman were to offer testimony on the subject of one of her books, I'd listen, just as I would to William Langeweische or Ezra Klein on subjects they've studied. But "historian" isn't that hard a target to identify.

[Turbulence]

I am using "smart" in that sense (you're not a historian therefore . . .). I specifically don't think you need to be a historian to interpret the 2nd A.

I suppose you don't "need" to be anything to interpret the 2A; everyone has an opinion after all. However, if you want to convince people that you're random opinion is correct, then it helps

Volokh bases his arguments on a particular reading of history. That reading may be correct or it might not be (I have no opinion), but since he is making an argument that depends on us trusting his ability to study history, it seems that his training and skill in doing so is highly relevant.

Even if Volokh didn't have any legal training he would be qualified to comment on the 2nd A.

I'm not sure I understand you here...are you saying that Volokh is a really smart guy and that therefore, we should listen to him even without a law degree? I might buy that if Volokh didn't make arguments that hinged on the correctness of complex historical analysis. Or are you saying that anyone (not just Volokh) should be able to interpret the 2A?

I look at a lot of the legal reasoning employed in constitutional law as being a version of the emperor's new clothes. A justice opines and says "look, see how pretty?" I say there is often not a lot there. Too complicated for sophistication's sake. These opinions were way too long on both sides as they typically are.

I agree with you here. I think we as a society are relying on the constitution far too much to resolve basic social questions that it was never intended to speak to. Unlike some conservatives here, I don't think that's due to laziness or moral inferiority; we have a very challenging amendment process that tends to reward spoilers.

This is why I am in favor of non-lawyers getting appointed to the bench. Not all, but some would be welcome. Good, common-sense people and smart, just not "too smart" that they mistake the beauty of their prose and diction for actual legal reasoning.

This is a very interesting idea. I'd be worried about such justices developing an inferiority complex about their lack of legal training and thus being susceptible to courtroom manipulation, but that problem could probably be worked out.

[Doctor Science]

The reason I wondered if the dueling histories involved histories of dueling is that I have no doubt -- as someone who has studied that history -- that the Founders in general thought: citizens have a right to bear arms. It was a mark of invidious distinction to limit the bearing of arms to the aristocracy, and we as Englishmen are proud such was never our custom. [n.b.: not necessarily historically true, but they would have *said* it was.]

But also: women cannot and should not bear arms. Women cannot and should not be full citizens.

There is IMHO a connection between the well-known Swiss insistence that every male be in the Army, and the fact that Swiss women didn't get the vote until *1972*.

If you're going to go dragging in the original intentions of the Founders, then you have to acknowledge that for them the Right to Bear Arms was woven tightly into the idea of Male Citizenship and Male Honor. *Everyone* is cherry-picking, pulling out the parts of the Founders' original intention that you-all feel comfortable with -- but not all the other baggage it was wrapped up with. And IMHO still is.

[Sebastian]

"However, a more charitable reader might instead conclude that publius' point was simply that an undergraduate education in computer science doesn't typically prepare one well for practicing the techniques of professional historians."

Which would have been a more plausible reading if he hadn't skipped over Volokh's more relevant experience as someone with expertise in the history of developments in Constitutional 2nd Amendment law. Publius could have said something anywhere near "Being an expert in the history and development of laws implicating the 2nd amendment isn't sufficient because I think only people with history degrees count". but in reality he dismissed him because he had an undergraduate degree in computer science and completely failed to mention any of the other qualifications.

And considering that the gun control historian Michael Bellesiles won the very most prestigious history prize available for his completely fraudulent work, and the major researcher on the other side, Lott, was also discredited, I'm not sure I'd be using an appeal to authority of historians.

But in any case, I believe that publius is saying that historical arguments are harder to understand than legal ones. That strikes me as an assertion that is very difficult to support. People understand at least in broad terms how historians work and what their work involves. That is much less true of lawyers

[Michael Cain]

The Supreme Court has made three other recent rulings and there is a clear pattern: siding with the millionaires on campaign finance, siding with Enron agasint the rate payers of Snohomish County and siding with Exxon against the fishermen. That's your conservative Court at work.

I have maintained for some time that Roe v. Wade was a red herring, and the Democrats missed the important point entirely while questioning nominees for the Supreme Court: some persons are more equal than others, and these guys believe the giant corporations (and/or those who have become wealthy by way of giant corporations) are a lot more equal than you and I. The recent ruling on age discrimination surprised me greatly.

[Turbulence]

Which would have been a more plausible reading if he hadn't skipped over Volokh's more relevant experience as someone with expertise in the history of developments in Constitutional 2nd Amendment law.

This expertise of which you speak: does it involve ever publishing in respected journals edited or read by historians? Or, would it be fair to say that the only people who review Volokh's work on this issue are lawyers or law school students who generally are not professional historians?

I think publius can assume that we already know that Volokh is an accomplished law professor. But talking about his writing articles for law reviews doesn't seem to tell us anything about his abilities as a historian.

...but in reality he dismissed him because he had an undergraduate degree in computer science...

I don't see how one can come to this conclusion absent an ability to read publius' mind. While you're in there, could you take note of his credit card number and email it to me?

And considering that the gun control historian Michael Bellesiles won the very most prestigious history prize available for his completely fraudulent work, and the major researcher on the other side, Lott, was also discredited, I'm not sure I'd be using an appeal to authority of historians.

Considering how badly Dershowitz was busted for plagiarism, I'm not sure I'd be using an appeal to authority of law professors.

Now, if you'd like to make an actual argument that historians are more unreliable than law professors or other classes of academics, I'd be very very interested in hearing it. But citing two anecdotes is not an argument; it is not even the beginning of an argument. It might qualify as an allusion to an argument that one might make, but nothing more.

I personally think that some non-trivial number of academics, including law professors, are seriously crooked in their scholarship, just like some doctors or engineers or scientists are. Universities and academic organizations often fail to adequately investigate and sanction their members, but the same can be said of medical boards.

I believe that publius is saying that historical arguments are harder to understand than legal ones.

I don't think he's saying that at all, but only he can tell us. I read his comment as saying that making historical assessments is a skill for which one must train and practice, and that doing so involves a set of shared techniques and norms that help comprise the profession of historians. That doesn't mean that historical analysis is "harder" than legal analysis, but rather that it requires a different skill set. In the same manner, a neurosurgeon may be unable to do his own taxes, but that doesn't mean he's an idiot or that neurosurgery is easy compared to what the average tax accountant deals with; it means they're two different fields and being good at one does not automatically require that you be good with the other.

[Pasota]

In fact, I don't think there is an originalist argument for incorporating the 2nd amendment. Anybody have one?

Pages 42-44 of the decision discuss the plain understanding at the time of passing the 14th Amendment that it was paramount that blacks be allowed to keep and bear arms.

[publius]

no, there's nothing inherently harder about history. what's difficult here is the magnitude of the historical record. i have no doubt that volokh would have been a good historian. but the truth is that he has no historical training at either the undergrad or graduate level.

Does that disqualify him from talking about the 2nd Amendment? Of course not. But it does mean that we should take his historical analyses with a grain of salt when that analysis is necessarily a massive undertaking with fragmentary evidence.

the fact that the court cited him shows nothing -- my point is that the Court would be better off looking at things other than papers of amateur historians.

[Slartibartfast]

There have probably been better times and places for dr ngo to chime in, but this particular time and place would be highly appropriate. In my humble opinion, which heeds neither law nor (outside of OW's brief stint) history.

[trilobite]

I've now read the opinion and most of the dissents. My take:

1) Publius, great post, I am going to try to remember that takedown of originalist historiography.

2) To the extent I can judge it, I think Scalia has slightly the better of the argument with Stevens as to the history, but only slightly. So I agree, it's so close that a good Court would have gone beyond originalism. Frankly, the dueling citations simply show that people in the 18th Century didn't use words any more precisely & consistently than they do now. Duh.

3) Scalia wants a self-defense right, not just a right to keep arms for militia use. But for a person who worships text, his purely textual reasoning is bizarre. The preamble tells us why the right was codified, but that doesn't tell us anything about what the right is? HUH? I bet he would have given an F to one of his students who came up with that one, back when he was a professor.

4) Related point: Scalia really struggles with Miller. He ends up saying that yes, under Miller, only militia-appropriate weapons are allowed, a conclusion that totally fails to match his reasoning about the preamble. Ignoring that, he plows onward: militia weapons means any weapons that an ordinary citizen might turn up with at a mustering call, so it doesn't include "bad" weapons like sawn-off shotguns, but does include "good" weapons like handguns (which he practically drools over). This is, bluntly, silly. The reason we don't have semiautomatics or even Sten guns commonly in private hands is that we outlawed them, not that they're naturally criminal weapons. Have sawn-off shotguns never been used for hunting? This whole line of reasoning is painfully result-oriented.

5) And speaking of result-oriented, I have literally never seen such a complete failure to guide lower courts, and this from a Justice who rants at every opportunity about the need for clear, bright-line rules. He expressly refuses to say whether to use strict scrutiny, rejects Breyer's sound strict scrutiny analysis on the specious grounds that Breyer wasn't really using strict scrutiny, and proposes no standard at all. Handguns are good because everyone likes them in New Jersey, so poor blacks in the District have to put up with them; but it's okay to keep firearms out of the courthouse, because g-d forbid his decision should put people like him in jeopardy. Sure, whatever.

Ironically, starting with the proposition that the right is equivalent to the English Right that operated against the King but not against the Parliament, Scalia has ended with a situation in which only Justice Scalia, but not any legislature, can know which restrictions are within the scope of the right. Guns Justice Scalia likes are fine, others are not. Don't bother with reasoning, just check his Amazon account. If only we could arrange to make his son the arbiter after his death, the reversal would be complete.

re Michael Cain's comment at 3pm,
Michael, agreed, except that the Democrats didn't "miss the point," they evaded it. They are not basically a liberal or progressive party, they don't want an anti-monopolist or pro-little-guy Court, and they don't want to raise those issues.

[bc]

Or are you saying that anyone (not just Volokh) should be able to interpret the 2A?

Yes! Just like we did before the founding; public discourse and discussion, just like here at ObWi.

There is absolutely no reason preventing us from having meaningful conversations with our fellow citizens-lawyer, laborer or even those liberal actor types-about the text of the Constitution. I think a free copy should be handed out along with the Declaration of Independence at every 4th of July parade and it both should be required reading from a young age. I read the Declaration each 4th of July to my kids. They get a little bored when I get to the grievances against King George and typically threaten a revolution of their own, but you get the point.

As an attorney, I learned early on that my clients were far more informed about their case in most areas that I was. The only "edge" I had was in the area of the "mystical properties" of "the law." Many, many attorneys mistake their knowledge of those "mystical properties" and assume they know virtually everything. I, on the other hand, believe there is a legal and practical answer to every issue I deal with and the practical often controls. So my clients are typically more involved in the conversation because I genuinely feel they have at least as much to offer as I in getting to the proper course of action.

I feel similarly about the Constitution. We ALL have something to offer and Constitutional Law should not be reserved to the esoteric and "educated." It takes away from its very nature as a document of the People to restrict interpretation and discussion to those elite few savvy enough to dissect with equal ease O'Connor's tripartite "analysis," penumbras emanating from the Bill of Rights or the Lemon v. Kurtzman test. We are dismissive of the wisdom of our common fellow citizen to our peril.

[Turbulence]

I think a free copy should be handed out along with the Declaration of Independence at every 4th of July parade and it both should be required reading from a young age.

Why? I think people should have some understanding of how their government works, but I'd worry that a program like you describe would encourage people, especially children, to treat the founding documents with excessive reverence. The constitution has some good features and bad features, but I don't think we can be good citizens if we worshipfully assume that it is a glorious and spectacular thing. A balanced analysis includes a great deal of historical context and critiques, and I don't see any easy way to shoehorn that into giving out copies every 4th of July and requiring that all children read them each year.

Right now, the average person can tell me a great deal about the pros and cons of their cell phone plan compared to various competitors. I don't think they could do nearly so good a job comparing the constitution to its peer competitors, and I'm skeptical that what you propose would help.

Also, I think it might be a little unfair to expect children to read the constitution without some extremely large disclaimers lest they think it closely represents their society. For example, your fourth amendment rights don't mean all that much thanks to the glorious war against some people who use some drugs. Civil forfeiture has turned parts of the fifth amendment into a cruel joke.

I read the Declaration each 4th of July to my kids. They get a little bored when I get to the grievances against King George and typically threaten a revolution of their own, but you get the point.

Maybe I'm heartless, but why would you do this? I mean, the DoI has no legal standing in our government, right? As far as manifestos of insurgent revolutionary groups trying to overthrow their government, it is pretty good but...

Also, do your kids use the occasion to ask you really annoying questions? Like "does that mean that people who live in DC are entitled to overthrow the government"? Or maybe "Is anyone entitled to overthrow the government if they feel sufficiently aggrieved?" or even "would our government be any less legitimate if the DoI never existed?". I ask in all sincerity since I'm pretty sure that if I ever have kids and try to read them the DoI, they will ask me questions like that. If they don't come up with those questions on their own, their mother will no doubt suggest them.

[cleek]

the fact that the court cited him shows nothing

it shows me that i can assume Scalia sounds like a right-wing blogger sometimes because his staff is picking things off of right-wing blogs.

[von]

In fact, I don't think there is an originalist argument for incorporating the 2nd amendment. Anybody have one?

As noted, one of the express purposes of the 14th Amendment was to allow former slaves to bear arms and protect themselves against violence from the white majority. Malcolm X was not so radical; his views were functionally indistinguishable from the views of the Republicans of the 1860s and 70s: "Racists know only one language, and it is doing the black man in this country an injustice to expect him to talk the language of peace to people who don't know peaceful language. In order to get any kind of point across our people must speak whatever language the racist speaks. The government can't protect us. The government has not protected us. It is time for us to do whatever is necessary by any means necessary to protect ourselves." (http://www.law.harvard.edu/students/orgs/forum/X64.html)

The fact that the 14th amendment was passed in part based on the view that the 2d amendment protected an individual right of self defense, is, of course, relevant to what it means. It is also relevant tha tthe 2d was understood as a personal right by individuals on both sides of the Civil War, as evidenced by one of the rationales for Dred Scott.

Now, of course, the actual history is far more complicated than the simplistic historical analyses provided in either Scalia's or Stevens' opinions. But that's understandable. A historian is not called to reach a conclusion regarding what the law means. A judge is. And history, even simplified, can be a useful guide.

[bc]

Turbulence:

Now your just being turbulent. But, yes, my kids ask me questions about the DoI and no, I don't find them annoying. The questions you wrote aren't annoying.

And if you knew how many law students take conlaw without having previously read ANY part of either document you might think differently. And how little the actual text comes up in class. Talk about taking your eye off the ball. I always thought each provision should be written on the board while we discussed a case because a casual listener would otherwise have no idea what the heck we were talking about.

And I said young age. Not necessarily little kids. But at least by junior high.

And just to annoy parents, I'm printing off a bunch of copies and handing it out this 4th of July. So there.

[von]

The DoI is vital, Turbulence, to understand context and background of the Constitution -- particularly the Bill of Rights. Unlike James Dean, the founders were rebelling for very specific reasons. The DoI provides those reasons and helps clarify what makes a government legitimate. In a country born of revolution, based for the first time exclusively on the natural rights of the people rather than the divine right of kings, the right (and threat) of another revolt always remains.

Aside from the DoI, the Articles of Confederation and, to a lesser extent, the NW Ordinance are also valuable to understanding the Constitution (IMHO). It's also valuable to look at the Confederate Constitution: the differences are illuminating (at least as of the 1860s).

The 13th, 14th, and 15th Amendment are also crucial to examine. Those Amendments were intended to be, and are, radical.

[Ugh]

The DoI is vital, Turbulence, to understand context and background of the Constitution -- particularly the Bill of Rights. Unlike James Dean, the founders were rebelling for very specific reasons. The DoI provides those reasons and helps clarify what makes a government legitimate.

If only Dick Cheney, David Addington, and John Yoo had read the DoI.

[Turbulence]

The DoI is vital, Turbulence, to understand context and background of the Constitution -- particularly the Bill of Rights.

I agree, but then again it is hardly sufficient: there are lots of bits of context and background needed to understand the constitution, and it seems like regular mandated readings of the DoI are not a particularly good way to engender that context and background. That material could more profitably be provided by supplementary readings that summarized the DoI along with the rest of the relevant history. Interested readers can always read the DoI on their own time; it is not like we're going to ban the document.

Unlike James Dean, the founders were rebelling for very specific reasons. The DoI provides those reasons and helps clarify what makes a government legitimate.

It is a rare movement indeed that honestly explains its motives in in its manifesto. Oftentimes, important motives are glossed over because they are not universally agreed to or because they make the insurgents sound bad. That means that such documents must be read carefully with a critical eye, and I don't think mandating that young students read the DoI annually is conducive to such readings.

In a country born of revolution, based for the first time exclusively on the natural rights of the people rather than the divine right of kings, the right (and threat) of another revolt always remains.

I don't know how to make sense of this statement in practical terms. If you say you have a right and I disagree, which of us is correct? You may declare that you have all manner of rights, but what matters is your practical ability to ensure their free exercise. Oftentimes, a national consensus suffices, but in some cases force of arms will do just as well. In that case, the "right" to rebel is irrelevant: what matters is your ability to execute a rebellion without getting killed.

Consequently, if you have the ability to overthrow the government, you may do so regardless of what rights you think you have. No matter what, the government will declare you to be a traitor and a criminal with no such rights. Also, this truism remains true in all countries, not just those that are "born of revolution" or "based exclusively on the rights of [some small fraction of] the people".

In a practical sense, I don't think the current US government is under any threat at all. The issue isn't one of rights but of capabilities: there does not seem to be a way to overthrow the government by force. That doesn't bother me too much, but it seems ridiculous to pretend that the US government avoids tyranny lest it be overthrown by an armed citizenry.

Aside from the DoI, the Articles of Confederation and, to a lesser extent, the NW Ordinance are also valuable to understanding the Constitution (IMHO). It's also valuable to look at the Confederate Constitution: the differences are illuminating (at least as of the 1860s).

Indeed, those all sound like worthy subjects of study, so why don't we mandate that students must read all of them every year? Might I suggest that while reading assorted historical documents can be beneficial, imposing mandates that particular documents be read by particular people at particular times every year is far less useful than requiring that students be able to demonstrate certain knowledge and allowing the educational market to impose that knowledge in whatever ways it sees fit?

[Catsy]

Oddly enough, I'm going to have to come down on the side of the conservatives here, for the most part. It seems inarguable that prior to the 20th century, the right to bear arms was simply understood on its face to mean anyone could have a gun and the government couldn't say they can't. It's practically a fixed piece in America's iconic freedoms, and that didn't begin and won't end with conservatism or originalism.

Moreover, whatever your qualifications as a teacher and scholar of law, I think your arguments on this point go too far. I'm pretty sure I get the point you're driving at, but the arguments you're making don't support it for the most part. Particularly baffling is your dismissal of the "amateur history" work the Justices are doing. It sounds as if you're issuing a wholesale condemnation of using history--or presumably any other complex subject in which the Justices are not experts--in adjudicating cases. That's how I read it, and that seems to be how most of the other responses here read it as well. The problem is that you're wrong on this in a way so obvious I can't fathom how someone with your intellect and education missed it. Are we to now truly expect our judges to be cross-trained experts in medicine, IT, biology, nuclear physics, or any other complex field of expertise in order to make a competent ruling? Are we to disallow any reliance on historical facts when ruling on a case simply because the Justices do not have a history degree? Absurd.

Now, with that said, I do agree on the core point--originalism is bunk. Results-oriented jurisprudence whose philosophical foundation rests on a fallacy: that judges are not only capable of entirely separating their legal reasoning from their moral and political beliefs, but that they are expected to do so while interpreting the original meaning or intent of a 200-year-old document and applying it to a contemporary case.

I will say this without reservation: it is fundamentally impossible for a sane human being to completely compartmentalize themselves like that. The way a person thinks and reasons their way through problems is inextricably intertwined with their worldview. While most people are capable of taking a step back and viewing a problem with increased objectivity, and doing so is an essential part of fairly judging a case, the fantasy here is that it's possible to entirely divorce one's first principles and thinking patterns from the actual act of thinking through a complex issue that requires interpretation.

The big lie that conservatives have perpetrated in this regard for years is that their originalists are ruling based on what the Constitution actually says, while those liberal judicial activists are just making stuff up to fit their policies. The truth is that when it comes to places where the text is ambiguous, both schools of thought interpret the text in a way that comports with their worldview and allow political considerations to filter their decisions. The difference is that originalists don't admit it, and cloak their creative interpretations in a veneer of legitimacy crafted purely from an appeal to authority fallacy.

[Anarch]

The fact that the 14th amendment was passed in part based on the view that the 2d amendment protected an individual right of self defense, is, of course, relevant to what it means. It is also relevant tha tthe 2d was understood as a personal right by individuals on both sides of the Civil War, as evidenced by one of the rationales for Dred Scott.

In that case, I want to reiterate what was asked upthread: if one is employing originalist analysis, who cares what the interpretation of the Second Amendment was in the 19th century? It may be germane to the Fourteenth Amendment, but surely not the Second.