2d Amendment case: DC v. Heller

@oralloy,

oralloy wrote:

joefromchicago wrote:
oralloy wrote:
If you look at earlier drafts of the Second Amendment, it seems pretty clear that they were lumping different ideas together into the same text.

The 2d amendment says what it says, and the text must be the beginning of any interpretation of that text. First drafts don't count.

I agree with complying with the text of the amendment, but it is also important to follow the intent behind that text, and looking at earlier drafts can give clues as to what the intent was.

In most cases, if you get a handle on what the original intent was, that also ends up in line with what the text says.

By the way, while looking at the history of the right leads me to separate the two halves of the Second Amendment, that same history also leads me to conclude that the second half is directly related to the militia.

So even though I don't see it as modified by the first half, I get to pretty much the same place that I would if I did think the first part modified the second part.

The main significance of my separating the halves is that I see the first half as having its own purpose (which I see as a requirement that the government always maintain a militia).

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@oralloy,

oralloy wrote:

The problem I have with treating this as one unified right is that it leads to people either saying "it protects guns for self defense but not for the militia" or "it protects guns for the militia but not for self defense".

I think both are important.

It really doesn't matter what you think is important. What's important is what the amendment says, not what you think it ought to say.

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@oralloy,

oralloy wrote:

Usually when courts say the Second Amendment isn't an individual right, they argue that the individual in question has no standing to make any claim based on the Second Amendment. They say that only state governments have such standing (or maybe a weapons procurement officer in a state militia).

Usually? Cite one example.

oralloy wrote:

The Supreme Court in Miller didn't address the question of whether Miller as an individual had any standing, but instead considered whether this was the type of weapon that Miller had the right to have.

That's because you misunderstand the nature of "standing" in a federal court. Miller had standing to argue he had a constitutional right to possess a sawed-off shotgun because he had been convicted of a federal crime. At that point, he had standing to assert any right he might possess. Whether he could avail himself of that right is an entirely different question, but he certainly had standing to claim protection under the second amendment.

oralloy wrote:

The core of their ruling was that if Miller's possession of the gun was beneficial to the militia, then Miller, an individual, had the right to have it.

Not precisely. The core of the ruling was that if Miller's weapon wasn't the type of weapon used by the militia, then Miller didn't have a right to possess it. As the court stated:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

oralloy wrote:

I agree with complying with the text of the amendment, but it is also important to follow the intent behind that text, and looking at earlier drafts can give clues as to what the intent was.

Except that the earlier drafts were rejected. That's why they're drafts. Justice Scalia has argued rather forcefully against taking legislative history into consideration when construing the meaning of statutes, and for once I tend to agree with him. I just think that the same reasoning should also be applied to the constitution.

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oralloy wrote:

Usually when courts say the Second Amendment isn't an individual right, they argue that the individual in question has no standing to make any claim based on the Second Amendment.

Maybe so, but we no longer have to debate the collective-rights interpretation of the Second Amendment. This interpretation has been thrown out by all of the Supreme Court, including Stevens's dissent. (The American news media, in their obsession with horse-race stories, has failed to appreciate this important outcome.) The only debate that's left is about the standard of review that should apply to alleged violations of the right to bear arms.

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On a slight tangent, I have a question for joefromchicago: How should the Supreme Court's parsing of the copyright clause affect its parsing of the Second Amendment? Why shouldn't the prefatory clause of the Second Amendment constrain the operative clause any more than it does in the copyright clause?

I'm asking because some time ago, I heard an interview with Lawrence Lessig. One question was about Eldred v. Ashcroft, the case where the Supreme Court held that Congress can extend the duration copyright retroactively, by as much and as often as it wants to. (Lessig had argued this case for the losing side.) One question to Lessig was, why didn't you argue that the retroactive extension violates the clause saying that Congress's right is "... to promote the progress of the Science and the Useful Arts"? After all, it's obvious that the retroactive extension can't encourage George Gershwin to compose new songs.

Lessig answered that it was futile to bet that the Supreme Court would strike down the extension on the basis of the prefatory clause; that would have invited the federal courts to broadly second-guess the Copyright Act altogether, and it was clear from previous cases that the Supreme Court didn't want to go there.

What I took away from that is that prefatory clauses in laws generally have very little power to constrain the operative clauses. This is even true for the copyright clause, whose first part doesn't even sound prefatory. "Congress shall have the power ... to promote the progress of the Science and the Useful Arts ..." It's the second part of the clause that sounds insignificant, like a clarifying afterthought: "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

So if the first part of the Copyright clause doesn't constrain the second part, and if this follows a fairly well-accepted principle of statutory construction, why should the first part of the Second Amendment have any sharper teeth?

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@Thomas,

Thomas wrote:

So if the first part of the Copyright clause doesn't constrain the second part, and if this follows a fairly well-accepted principle of statutory construction, why should the first part of the Second Amendment have any sharper teeth?

You're probably asking the wrong person, because I think the court got it wrong in Eldred as well as in Heller. The court has said, in effect, that the prefatory clauses in the copyright clause and the second amendment provide a justification for congress's power to pass laws regarding copyrights and for the right to bear arms, but they have no legal effect. Frankly, I can't understand that kind of reasoning, especially from some of the "strict constructionists" on the court who were in the majorities in both cases (I'm looking at you, Antonin Scalia and Clarence Thomas).

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@joefromchicago,

joefromchicago wrote:

oralloy wrote:
Usually when courts say the Second Amendment isn't an individual right, they argue that the individual in question has no standing to make any claim based on the Second Amendment. They say that only state governments have such standing (or maybe a weapons procurement officer in a state militia).

Usually? Cite one example.

Hickman v Block from the 9th Circuit Court of Appeals.

http://laws.findlaw.com/9th/9455836.html

joefromchicago wrote:

oralloy wrote:
The Supreme Court in Miller didn't address the question of whether Miller as an individual had any standing, but instead considered whether this was the type of weapon that Miller had the right to have.

That's because you misunderstand the nature of "standing" in a federal court. Miller had standing to argue he had a constitutional right to possess a sawed-off shotgun because he had been convicted of a federal crime. At that point, he had standing to assert any right he might possess. Whether he could avail himself of that right is an entirely different question, but he certainly had standing to claim protection under the second amendment.

I only have time to give a partial reply right now, but Miller was never convicted.

The trial judge threw out the charges on Second Amendment grounds before the trial. The government then appealed directly to the Supreme Court.

Miller was freed when the charges were dismissed, and was killed in a gunfight with an unknown person about a month before the Supreme Court issued their ruling.

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@joefromchicago,

Hm. I wonder if there are generally accepted authorities on statutory construction, and what they say about the issue. My impression as a layperson is that American law is full of statutes that follow the template "whereas (x), be it enacted that (y)". I would expect there to be general rules about the impact of the "whereas" clauses on the "be it enacted that" clauses, if any. Aren't there?

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@oralloy,

oralloy wrote:

Hickman v Block from the 9th Circuit Court of Appeals.

A case that is quite unlike Miller.

oralloy wrote:

I only have time to give a partial reply right now, but Miller was never convicted.

The trial judge threw out the charges on Second Amendment grounds before the trial. The government then appealed directly to the Supreme Court.

That's correct. I should have re-read the opinion rather than relying on my memory of the case.

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@Thomas,

Thomas wrote:

Hm. I wonder if there are generally accepted authorities on statutory construction, and what they say about the issue. My impression as a layperson is that American law is full of statutes that follow the template "whereas (x), be it enacted that (y)". I would expect there to be general rules about the impact of the "whereas" clauses on the "be it enacted that" clauses, if any. Aren't there?

Those "whereas" clauses are usually accorded only slight deference, because they aren't considered part of the statute. They are, however, considered to be evidence of legislative intent (which is why they're put there in the first place). In contrast, the prefatory clauses in the copyright clause and the second amendment are actually tied directly to the operative clauses. The operative sections cannot be understood correctly without the modifications introduced by the prefatory material.

For a grammatical take on the second amendment, see this.

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@joefromchicago,

joefromchicago wrote:

The operative sections cannot be understood correctly without the modifications introduced by the prefatory material.

Why not? "The right of the people to hold and bear arms shall not be infringed -- never mind why, we just threw that in to give you a hint about our intent." Why is that not the correct understanding of the operative clause? On what principle of statutory construction do you conclude that the prefatory clause isn't just another one of those barely consequential "whereas" clauses? So far, your reasoning sounds circular to me: The court got it wrong because it ignored the prefatory clause. And it shouldn't have ignored the prefatory clause because the operative clause can't be correctly understood without it.

I do find your argument persuasive, though, when you apply it to the copyright clause. "Congress shall have the power to promote the progress of science and useful arts, and here's how ..." is not the same as "congress shall have the power to secure for limited times to authors and inventors the exclusive right to their respective writings and discoveries, never mind what for."

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I think it is also useful to notice that Article One, Section Eight contains two paragraphs which outline the powers of Congress with regard to the militia. Given that the grant of those powers to Congress preceded the formulation of the second amendment, the initial clause is an important bridge between the powers of Congress with regard to the militia (the means by which the militia can be seen to be well regulated) and the right of the people to keep and bear arms. I suggest that the second clause can only be understood with reference to the first clause, in the overall context of the constitution.

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@Thomas,

Thomas wrote:

Why not? "The right of the people to hold and bear arms shall not be infringed -- never mind why, we just threw that in to give you a hint about our intent." Why is that not the correct understanding of the operative clause?

Well, obviously, some people do interpret the prefatory clause in that fashion. Five of them happen to be on the supreme court.

Thomas wrote:

On what principle of statutory construction do you conclude that the prefatory clause isn't just another one of those barely consequential "whereas" clauses?

Because the prefatory clause isn't a "whereas clause." A "whereas clause" is like the preamble to the constitution, which talks about "forming a more perfect union" and all that stuff. Nobody reads congress's powers under article I as being constrained by the preamble (well, there probably are such people -- there are all kinds of constitution nuts out there). Nobody says "congress only has the power to establish post roads so long as they lead to a more perfect union." That would be to misunderstand the nature of a preamble, which is meant simply to set forth broad principles rather than modify the operative sections of the constitution.

The prefatory clause of the second amendment, on the other hand, is meant to be read along with the operative clause -- they're in the same sentence. There's no rule of statutory construction that allows a judge to read part of a sentence and disregard another part. Indeed, the rule of construction is to give effect to all parts of a law. "[C]ourts should disfavor interpretations of statutes that render language superfluous" said one eminent jurist.

Thomas wrote:

So far, your reasoning sounds circular to me: The court got it wrong because it ignored the prefatory clause. And it shouldn't have ignored the prefatory clause because the operative clause can't be correctly understood without it.

If my reasoning sounds circular to you, then you might want to get your hearing checked.

Thomas wrote:

I do find your argument persuasive, though, when you apply it to the copyright clause. "Congress shall have the power to promote the progress of science and useful arts, and here's how ..." is not the same as "congress shall have the power to secure for limited times to authors and inventors the exclusive right to their respective writings and discoveries, never mind what for."

I don't know why one prefatory clause modifies the operative clause and the other one doesn't. What if the copyright clause had been written thus:

"Because promoting the Progress of Science and useful Arts is a good thing, congress shall have the power to secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Wouldn't that say the same thing? And if so, how is that different from the way the second amendment is written?

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2d Amendment case: DC v. Heller

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