The second amendment

As to your question about whether the shopkeepers owned a gun affects their likelihood of being attacked...the lieutenant didn't address that exact question, but said that drawing a weapon when threatened always escalates the level of violence in a confrontation.

I didn't exactly answer your questions, but that's the best I can do. Does it help?

Nevertheless, the gun went off and I lost half my hearing. Permanently, I'm afraid. My audiologist tells me he sees this all the time. If there are lots of other people going through what I'm going through simply because they were innocent bystanders, then that's another good reason I wish it was harder for people to get ahold of the damn things.

I'm always a little distrustful of any "debate" that tries to be perfectly objective. We humans are not perfectly logical beings, and real life is always complicated by emotions and personal experiences. I was simply trying to interject a bit of humanity into the discussion. You are right, Thomas, joefromchicago and Acquiunk ARE having a good discussion and seem to be on the same wavelength. I shall go play elsewhere.

We may just have a semantics mismatch here. But I don't understand how the Supreme Court can start with the text itself, make an error interpreting it, and not depart from it by doing so.

Let me just explore this with some specific examples. Do you think it is not a stretch to say that a wiretap is not a search, so isn't protected by the Fourth Amendment, as the Supreme Court held in Olmstead vs. US? (Edit: Sorry, Ohlmstead wasn't decided by a New Deal court. My question is more directed to your earlier claim that 'the Supreme Court has rarely departed from the constitution'. )

Moreover, do you agree that when a farmer grows wheat and feeds it to his own paultry, he is sufficiently engaged in interstate commerce to be regulated under a clause saying "Congress shall have the power [...] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"? As you know, the Supreme Court answered this question affirmatively in Wickart vs. Filburn. It thereby established an unwritten quasi-rule that pretty much every law Congress might feel like passing can be construed as regulating interstate commerce, so the Commerce Clause makes the law constitutional by default. Never mind that this makes nonsense of the constitution enumerating the powers of the federal government, and of the tenth amendment affirming that the federal government has no other powers besides those enumerated.

I agree. My intended point was about how other documents affect the end of the interpretation, not the start of it.

I agree that state constitutions, commentaries and such rank below the text of the constitution itself. But to make your argument in this paragraph work, you must be believing that Supreme Court interpretations are somehow on the same level as the constitutional text itself. Otherwise, we are simply comparing two sets of text that rank below the text of the constitution.

Perhaps we do. Let me make my position clear: some people who advocate a "broad" interpretation of the Second Amendment (and other constitutional provisions) look beyond the text of the amendment for support.

That's an acceptable practice when interpreting constitutional texts, but it is not acceptable to place those secondary sources on the same level as the constitutional text.

On the other hand, I don't think the Wickard court ignored the text of the commerce clause when it reached its decision. It may have been a stretch, but it wasn't a departure.

Practically speaking, supreme court interpretations are on the same level as the constitutional text. That's not because the supreme court is invariably correct in its interpretations, but because of the way the constitutional system works.

That's interesting, because I wouldn't say my interpretation of the Second Amendment -- "an unconditional statement, preceded by an explanation of why it is there" -- is particularly broad.

And one reason I like to refer to State constitutions is that they contain evidence for this opinion about broadness. In particular, they contain grammatically similar formulations of the right to free speech, which are clearly meant in that spirit. It's just evidence, not proof, but at least it shows that I'm not just pulling interpretations out of thin air in viewing the Second Amendment's grammatical structure the way I do. I can actually point to documents where the Founding Fathers used similar grammatical structure to express meanings anologous to how I read the Second Amendment.

I think I see where you're coming from, but the problem is that the text of the Second Amendment isn't self-contained. It doesn't create a right to bear arms. Unlike "Congress shall have the power to ...", which creates and defines the powers of Congress, it doesn't say "The people shall have a right to ...". It says: "... the right of the people to ... shall not be infringed". The Second Amendment, rather than creating a right, refers to a previously defined right, "the right of the people to...", and merely states what shall happen to it: it "shall not be infringed". Therefore, even under a narrow interpretation, it is necessary to look for the definition elsewhere.

And the English Bill of Rights, Blackstone, and pre-existing State constitutions are perfectly appropriate sources for the definition of the right. Other texts cited by Volokh matter for other reasons, but I think I've made my point well enough for now. Are we still on the same page, or are we having a semantics mismatch about "instructive" versus "definitive" now?

I have two problems with this. First, the obvious one: To reach the result it did in Wickard, the Supreme Court in effect interpreted the word "commerce" to include production, and the phrase "between the states" to include "between the wheat field and the henhouse of the same farm". Granted, it's not quite as Orwellian as "war is peace". But to me, it's clearly a distortion disguised as an interpretation, and I don't like it, amateur or not.

But even if I'd grant, for the sake of the discussion, that "'commerce' means production" is a legitimate interpretation, I still have a second problem. In this case, I'd grant you that the court didn't ignore the text of the commerce clause when it reached its decision, but object that it did ignore the constitution's concept that the federal government's powers are enumerated, which is implicit in the original constitution and explicitly reaffirmed in the tenth amendment. When someone effectively says: 'Congress has only the powers explicitly delegated to it -- but the Commerce Clause explicitly delegates pretty much every power Congress cares to have', that's ignoring the Tenth Amendment. And that's what the New Deal and the Great Society Supreme Courts did.

And, to find the way back to the topic of the thread, I think the Supreme Court also tried to ignore the Second Amendment out of existence with all the rulings it didn't make despite the many opportunities over the 20th century that you mentioned earlier.

I think we've reached the core of our mismatch here. You say "practically speaking" -- but practically speaking for whom? To you as a lawyer, Supreme Court locuta, causa finita is a guideline that makes perfect practical sense. In choosing your approach to your own cases, you must account for what the Supreme Court says, and what it ought to say is a purely theoretical matter. But to me as a citizen, this position doesn't make as much practical sense, because I have different decisions to make in my practice.

I have to make decisions like whether to stay in America once I'm there or whether to go back to Germany; or, whether to picket the Supreme Court when someone thinks it made an outrageous decision; or, whether to help campaign against a particular Supreme Court candidate, and many other decisions like that. To make decisions like this, I have to pay attention to the discrepancies between what I think the Supreme Court ought to say and what it does say. I have to consider the politics of its decisions, not just the jurisprudence of them.

In fact, I'm not quite sure what your interpretation is.

Why is "production" not "commerce?" If a business produces something, it is with the intention of placing into the stream of commerce. It's an artificial distinction to say that selling crops is commerce but growing them for eventual sale isn't.

On the other hand, the court interpreted the commerce clause rather narrowly before the New Deal. Fortunately, I think the court has reached a much more balanced view of the commerce clause in the past twenty years.

I'm not following you here. You're criticizing the decisions that the supreme court didn't make? [...]

Apart from obeying the law, what decisions do you have to make that are affected by the supreme court? [...]

But these are all political questions. At most, you are expressing prudential concerns, not jurisprudential ones.

Well, some might find my full interpretation prohibitively boring to read, but since you tempted me ...

The constitution was written with the understanding that people have rights, and that governments are instituted among men to secure these rights. At the time the constitution and the Bill of Rights were written, Americans had a clear common understanding of what those rights were. The understanding was reflected in the English Bill of Rights and the English Common Law, both of which where the law of the land when the Constitution was written. This commmon understanding derived from that basis was so clear to the people of the time -- with a few specific exceptions such as slavery -- that The Federalist Papers could persuasively argue that writing down those rights wouldn't be worth the trouble. In other words, when the Second Amendment referred to "the right of the people to hold and bear arms", Americans of 1789 intuitively understood what the right was, and didn't need a definition for it.

Over the last 215 years, our intuitions have changed, and we can no longer rely on intuition to determine what right the authors of the Second Amendment referred to. But we can still rely on those contemporary sources that documented the common understanding of the time. And we have to rely on them because the Second Amendment refers to a pre-existing right without defining it anew.

As it turns out, these sources give a pretty consistent picture of how the right to hold and bear arms was understood when the Founders wrote the Second Amendment.

It is clear, from these sources and from the language of the Bill of Rights itself, that was understood as an individual right, not a State right.

It is reasonably clear that it is a right to hold and bear arms both in and outside the militia. The English Bill of Rights, Blackstone and some State constitutions explicitly say so, other State Constitutions don't explicitly protect the right outside of the militia, but don't explicitly deny it either. It is also clear from the sources that this right never applied to all arms that people might want to bear and hold. ("suitable to their conditions, and as allowed by law.") On the face of it, these qualifications seem consistent with a significant amount of modern gun safety regulation.

All this also tries to address your claim that "it just isn't so". Replace "previously defined" rights with "previously existing rights" if you wish, but I stand by the substance of my interpretation.

But Mr. Filburn hadn't grown the wheat in question with the intention of selling it. He had grown it with the intention of feeding it to his hens and selling the hens. By doing so, he engaged in wheat production and poultry production. Following your reasoning, I can grant you that he was engaged in poultry commerce. But insofar as he grew the wheat to feed his hens, he cannot reasonably be interpreted as having engaged in wheat commerce -- as the Supreme Court did.

Not to get ad hominem on you, but I gather from these questions that you haven't spent much time reading any of the communist pre-1989 constitutions of East European countries.

The surprising thing about them is how normal they read. Apart from a few rhetorical cowtows to the glory of the working class, they might as well be West European constitutions.

They have bills of rights, free elections, open trials, you name it. The difference was that West European courts protected these constitutions and West European legislatives and executives implemented them. East European institutions didn't -- but the constitutions themselves were okay.

So yes, you can eliminate fundamental rights by ignoring them, refusing to rule on them, or 'interpreting' them to mean the opposite of how everybody else understands the language, and by dismissing citizens who object as amateurs at best, fanatics at worst. Not to say that the Supreme Court is even close to communist Eastern Europe in this regard, but yes, I do think that the Supreme Courts decisions to rule on only one Second Amendment case in the whole 20th century has had the effect of eroding that right.

As for the decisions I have to make, the most important I have in mind is the decision to revolt against government institutions that are supposed to protect what the constitution says, but instead protect what they think the constitution ought to say, and who turn the constitution upside-down under the pretense of interpreting it. While the decision to revolt is always a political one, the decision to revolt for this reason involves jurisprudential judgment on my part. It lies in the nature of the matter that I can't rely on the Supreme Court as gospel in forming my own jurisprudential judgment.

That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law [quoting the "English Bill of Rights"] . . .

Not so. The state constitutions define the right differently, and the English Bill of Rights differs from all of them. [...] How do these differing provisions describe the same right?

Not to get all ad hominem on you, Thomas, but I gather from this that you don't have much familiarity with the process of "incorporation" of the Bill of Rights. The supreme court has not ruled on the Second Amendment because there has been no reason to rule on it: since the amendment does not apply to the states (having never been "incorporated" into the Fourteenth Amendment"), various state efforts to enact gun legislation do not implicate any Second Amendment rights.

Usually, the supporters of the gun lobby have as a hidden agenda, and as ofen as not, an overt agenda: their access to fire arms to protect themselves from government.

the ludicrous notion of individuals relying upon Smith and Wesson to provide them the means to opposed a heavily armed and experienced police force

In short, a debate of this amendment's meaning and current validity is a red herring for what is essentially an appeal outside the law to a right not guaranteed--unrestricted gun ownership.

By not construing the absence of one specific provision in a State's bill of rights to mean that the right isn't protected. The moral equivalent of the Ninth Amendment, applied to all these documents.

I have a history question though: When the Virginian and the federal bills of rights were passed, did contemporary jurisprudence see them as narrowing the scope of the right Americans had had under the English Bill of Rights? When the Pensylvanian constitution of 1776 said "That the people have a right to bear arms for the defence of themselves and the state", did contemporary jurisprudence see it as creating a right that hadn't been there before? If I saw evidence that the answer to the former is "no" and the answer to the latter is "yes", that would convince me that you are right and I am wrong. But for the moment, I continue to assume that the State- and Federal constitutions are more or less independent attempts to codify a right that was "out there" in the form of customs, Common Law precedences, statutes, and adherence to the old English Bill of Right -- which was still the law of the land when those constitutions were written, and which wasn't seen as being invalidated by the new bills of rights as far as I know.

Oddly enough, I had familiarized myself with the concept about half a year ago, by following a link you yourself had posted to this very thread. As I recall what I gathered from surfing legal reference web sites back then, the Supreme Court adopted the doctrine of incorporation mostly in the 20th century, and it never ruled on the question whether or not the Second Amendment was among the rights incorporated during that time. It seems to me that you are confusing cause and effect here. As far as the Supreme Court is concerned, the Second Amendment isn't fully incorporated because the court hasn't taken any second Amendment case since 1937 -- not the other way round.

But notice that this agenda is consistent with a lot of scholarly, non-zealot literature from the time America's constitution was written. Obvious examples include Blackstone and Adam Smith's discussion of militias in "The Wealth of Nations". Blackstone explicitly notes that one purpose of the right to bear arms is to protect people's rights against tyrannical governments. Adam Smith, noting that England had suffered two military coups during the century before he wrote, considered citizen militias to be a safeguard against tyrannical governments relying on standing armies. He was as pessimistic as you are about their ability to protect against invasions, but was willing to pay that as a price for a free society. I agree the right to bear arms is outdated, but I do believe that the gun nuts have America's founding fathers on their side and we don't.

Setanta wrote:

the ludicrous notion of individuals relying upon Smith and Wesson to provide them the means to opposed a heavily armed and experienced police force

... on the face of it, strikes me as no more ludicrous than the notion of individuals relying on sit-ins, peaceful demonstrations and extensive media coverage to provide them with the means to oppose a heavily armed and experienced police force. Ludicrous or not, the latter notion worked spectacularly well in Eastern Europe in 1989/90, barely failed in China in 1989, and appears to be working in Ukraine as we write. (Fingers crossed.)

It matters little what Adam Smith thought

I rather doubt that you could make a case that the actual drafters of this amendment held with the statement oft attributed to Jefferson that the Tree of Liberty needed frequent watering with the blood of Patriots.

I completely reject a characterization of the majority of American political leaders in 1789 supporting so extreme a concept as that of every citizen armed as liked him best and publicly bearing said arms without let or stop. I don't buy that.

oralloy wrote:

joefromchicago wrote:

So you'd agree that an individual's right to bear arms is tied to the state's interest in maintaining a militia, right?

No.

But I'd agree that an individual's right to bear arms is tied to the militia itself.

I'm sorry, but I don't understand your distinction. Please explain.

The problem with the Second Amendment is the cultural environment it was drafted in.

The 18th century simply had a much different and lackadaisical attitude towards who owned what kind of weapon. My favorite example is an iron foundry in Stafford Connecticut that was stuck with a number of cannon at the end of the American revolution when the government (state) canceled their contract. They simply advertised them for sale in the local newspaper.

Thomas wrote:

right institutions to appeal to are legislatures and ballots, not the court

The problem here is taht if left to that nothing will happen.

On the other hand, amateur analysts frequently ignore, and thus depart from, the text of the constitution.

Thomas wrote:

If the right referred to in the Second Amendment was a right that was granted by various state constitutions (or by the English Bill of Rights), then people would have different federal constitutional rights, depending upon where they lived.

Unless the state constitutions all refer to the same right that was created in the English Bill of Rights (which I contend is the case).

joefromchicago wrote:

If the right referred to in the Second Amendment was a right that was granted by various state constitutions (or by the English Bill of Rights), then people would have different federal constitutional rights, depending upon where they lived.

Unless the state constitutions all refer to the same right that was created in the English Bill of Rights (which I contend is the case).