July 7, 2008

Eugene Volokh and Jack Rakove debate Heller.

On Bloggingheads. How exciting! I'm just starting to watch it, but I'll try to pull out a good embed to add character to this post.

ADDED: On the shelf behind Rakove, there's a John Paul Stevens bobblehead.

41 comments:

Cedarford said...

Stanley Fish had an opinion piece in the NY Times Magazine saying the real Heller vote was 9-0 "Intentionalist".

Fish, English, the Law, and PoMo don't settle with me too well.

http://fish.blogs.nytimes.com/2008/07/06/what-did-the-framers-have-in-mind/index.html

I thought the whole thing was pedantic. Maybe lawyers and tenured English profs will call it brilliant....

Bruce Hayden said...

I can't get the blogging heads to work. So, my comments will be to the Fish article.

Fish argues that the decision was unanimously intentionalist, "the thesis that a text means what its author or authors intend." Fine. But he then backs Breyer's dissent based on the fact that the drafters were rural and the D.C. gun law was in response to an urban problem. (Never mind that strict gun laws appear to make gun violence worse).

But that isn't intentionalism, as he defines it. Rather, it is more akin to the living Constitution type of analysis or reasoning. He is essentially saying that the needs of an urban population are different from those of the rural population of those drafting and passing the 2nd Amdt., so it should be interpreted differently.

Also, my reading of Breyer's dissent was more that the courts should apply some sort of reasonable basis analysis that takes into account different environments - to which the majority essentially responds that a fundamental right like this requires higher (likely strict) scrutiny, and rational basis or balancing is inappropriate.

Frankly, I found Steven's dissent evidence that there should be age limits for Supreme Court Justices (Justice Holmes, notwithstanding).

The Drill SGT said...

nor can I get BH to start

Bruce Hayden said...

Finally got BH working a bit, and the discussion was a lot more nuanced than the Fish article was.

Ann Althouse said...

I'm having trouble getting it to work too.

For what it's worth, I passed on the Fish piece earlier today.

Simon said...

Problems with the video here, too. The only thing worth mentioning about Fish's piece - since others have brought it up - is that it's surprising that he either doesn't understand (dubitante) or ignores the difference between intent, purpose, and semantic meaning - intentionalism ≠ purposivism ≠ originalism. Perhaps he's fishing for someone to link to him saying "no, no, you've got it all wrong!"

Mortimer Brezny said...

I thought the whole thing was pedantic.

I thought it was funny. Fish has his own definition of intentionalism that blends a number of intrepretive theories. His real problem is that he's an English professor, so his logic tends to be on the weaker side.

P. Rich said...

Volokh destroyed Rakove's "arguments" to the extent that the latter ended up sounding silly and pretentious without having made any significant, sustainable points. Rakove did, however, manage to utter a large number of words at a fairly high sustained rate.

Interesting, isn't it, that weak arguments tend to come cloaked in verbosity. I am reminded of a certain Obamaperson...

former law student said...

I don't get Rakove. But Volokh kept him on the ropes pretty much. The Rakovians want to make the Second Amendment all about the militia, letting the tail wag the dog. In the process, "the right of the people" disappears like magic.

The whole thing reminds me of contract law. History is parol evidence, while the Constitution is an integrated contract. History can only be referred to, to resolve ambiguities. "Original meaning" jurisprudence is the court trying to find the objectively reasonable meaning of the term.

Simon said...

My comment above now strikes as too peremptory; I've penned a post expanding on what the differences between the concepts Fish commingles here for those interested.

Michael said...

Bruce Hayden: ...But he then backs Breyer's dissent based on the fact that the drafters were rural and the D.C. gun law was in response to an urban problem.

The mind boggles. So the good Justice doesn't consider the bill of rights nor the constitution binding within urban areas?

Just how many pretzels will the self-identified defenders of civil liberties willfully and shamelessly tie themselves in trying to rationalize away the 2nd amendment?

UWS guy said...

Rakove makes an interesting point I think. I'm a fan of the Majorities opinion on this and agree with Volokh, but I have a question about Rakove's opinion.

Does it boil down to, "The States can't be disarmed by the National Govt.?" Is that it? Congress can't tell North Carolina that it can't have a National Guard?

Anyone wanna correct me on Rakove's position? As a follow-up. Are there any other "states rights" in the bill of rights? (I'm rusty...) As opposed to individual rights.

UWS guy said...

"button it for a minuite" at 24:30.

He's a bit rude to Volokh, is it because he's a wippersnapper? Because from what I can tell, it's not as if Volokh is talking more than Rakove...

Michael said...

Eugine misses a whole line of attack using information that Jack supplied.

That being that during the debates, they were worried that the federal government could, at some point, effectively disarm the militia, putting the citizenry at the mercy of the standing army, simply by failing to supply the militia with arms and waiting until those arms get warn out and the ammunition gets used up.

Guaranteeing that the right of the people to keep and bear arms shall not be infringed solves that very issue, because the militia would still have access to personally owned arms.

Not being beholden to the federal government for your arms to protect yourself against that same federal government's standing army was an important issue to the anti-federalists, and it was the anti-federalists who insisted on having a bill of rights.

Boaz said...

Rakove should be embarassed. He had an hour to state his argument, but he backed down everytime Volokh tried to get him to clearly state it.

His position seemed to be, I'm a historian, and you lowly lawyers can't do history.

An aside, I'm not sure why law office history has such a bad reputation, as a lot of lawyers have degrees in history ( I do ) and a lot of tenured historians are full of crap. My new theory is that historians must mock lawyers who make historical arguments because they know if lawyers spent as much time developing their historical writings as most tenured professors do, their own work would look amatuerish.

blake said...

The Constitution not a legal document?

Is that because, even after over 200 years, it's not opaque enough?

Mortimer Brezny said...

Volokh destroyed Rakove's "arguments" to the extent that the latter ended up sounding silly and pretentious without having made any significant, sustainable points. Rakove did, however, manage to utter a large number of words at a fairly high sustained rate.

I noticed this too. Indeed, Rakove used a fair number of synonyms. Not only was he saying nothing, he was saying nothing redundantly.

Yachira said...

Unfortunately, I've never been able to watch a blogginheads video. I find this odd, since I experience this on no other video site on the Web.

Michael said...

I watched the whole thing, so maybe I missed it, but I come away thinking the only thing Eugene managed to tie Jack down to was that the 2nd amendment is nothing more than a declarative statement, with no meaning. Oh, excuse me, it supposedly prevents Congress from neglecting the militia. Funny that it actually says no such thing.

So, the 2nd amendment doesn't say what it says, it says something it doesn't say. At least according to Jack.

Henry said...

I got the impression that Jack Rakove finds lawyers annoying. Lawyers have to decide what things actually mean. For Rakove, that's a risible notion.

So while Rakove is happy to write editorials about the law, he won't follow-through when pressed. He, "as a historian" (you could have a drinking game with that phrase) is much more comfortable being vague. Everything is associative; nothing is definitive.

Fritz said...

Sovereignty is who maintains the most lethal force; thus it is held by the people as a right. My box of Remington bullets says it all; "The Second Amendment guarantees all the rest."

Breyer's urban classification is silly. The government does have the right to disarm unregulated militias we call gangs. If DC really wanted to crack down on gun violence, they would bring in the National Guard and disarm the gangs.

Trumpit said...

The only thing that Henry has in common with History is the H,R,and Y in his name. What a lame comment. I'm sure he has old photographs of himself playing tiddlywinks, and old business contracts made with people he tried to hoodwink lying around the house. Do you or don't you believe your own eyes? Take the 5th, it's your right and it's part of a historical document call the Constitution.

Heller was decided by a 5-4 vote, so I doubt it so clearcut as the partisan hacks around here would have you believe. So, what if it had gone 5-4 the other way? What would have been the resultant effect of such a ruling? Why not fix the 2nd amendment to make the language up-to-date and as clear as can be? Throw in the death penalty for child rapists that you were so adamant and irate about while you are at it. The answer is that you want what you want and you want it now. You are not willing to try to change the Constitution because you are afraid you will lose. You want your way by judicial fiat rendered by conservative activist judges in the mold of Scalito. Middle Class Guy would call you hypocritical scum. I would use softer alliterative language such as blind, blathering, banal and bigoted buffoons.

Spread Eagle said...

Volokh destroyed Rakove's "arguments" to the extent that the latter ended up sounding silly and pretentious without having made any significant, sustainable points.

I dunno. Listening carefully, to me Rakove made an alarmingly cogent case for the proposition that "the right of the people to keep and bear arms" doesn't mean that at all.

John said...

"But he then backs Breyer's dissent based on the fact that the drafters were rural and the D.C. gun law was in response to an urban problem"

I thought Breyer's reference to the "urban problem" of crime was very interesting and instructive. Gun control in this country has a very long, ugly and racist past. You can't keep 1/3 of the population in the South in bondage or later as second class citizens if they are armed. Breyer as much as said that while there may have been a right to bear arms in the rural (read white) past, it is very limited in the current urban (read black) present. Liberals talk a lot about "code words" for racism. Breyer in his reference to "urban crime" gave them a big one right there. When you consider that the primary purpose behind gun control before the 1950s was suppression of black people and that the DC law in question had the primary effect of disarming black people, I don't see how you read the reference to "urban crime" as anything but code for "disarming black people".

Really what Breyer was saying is that it is okay for safe suburban white folks to own guns, but it is not okay for inner city black people to do so. I suspect that if you could closely into Breyer's heart you would find a pretty serious racist. While there is no evidence that he bears any direct animas towards black people, Breyer dissent and use of code words clearly show that he doesn't in any way consider blacks, especially those who live in the inner city, to be in any way equal to whites.

Bruce Hayden said...

I suspect that if you could closely into Breyer's heart you would find a pretty serious racist. While there is no evidence that he bears any direct animas towards black people, Breyer dissent and use of code words clearly show that he doesn't in any way consider blacks, especially those who live in the inner city, to be in any way equal to whites.

I suspect instead that he just accepts the liberal dogma here and doesn't think through that said dogma is racist.

But your post does remind me of the reason that Condi Rice cited for being pro-gun and anti-gun control. She remembers her father and the other men patrolling her neighborhood with guns to protect their Black community against Jim Crow racist violence.

John said...

"I suspect instead that he just accepts the liberal dogma here and doesn't think through that said dogma is racist."

That is true. But in other contexts no one could ever claim that they believe something and just hadn't thought about how racist it is. Liberals certainly would never give a conservative such a break and I won't give Breyer one. Breyer is a paternalistic racist. I guess that is better than being a violent racist, but it is still pretty loathsome.

JohnTaylor88 said...

Really what Breyer was saying is that it is okay for safe suburban white folks to own guns, but it is not okay for inner city black people to do so.

I think this is why you don't really see very many people taking his dissent seriously.

former law student said...

Rakove made an alarmingly cogent case for the proposition that "the right of the people to keep and bear arms" doesn't mean that at all.

Rakove's point seemed to be that the Second Amendment was aspirational, like the Declaration of Independence, and not something with any legal consequence. Again, I don't see why the second in a series of ten amendments would be unique, so none of the other nine amendments should bind the federal government either.

The problem is that Rakove, like Bellesiles, does not want individuals to have a right to arms, so they feel compelled to spin history away from the plain meaning of the words.

former law student said...

you don't really see very many people taking [Breyer's] dissent seriously.

I thought Breyer's dissent was much better than Stevens, because it was was based on facts and not misinterpretations. Whether you support it or not, prudentialism (pragmatism, consequentialism), including a study of the slippery slope, is a legitimate way to interpret the constitution. Do we really want every resident of DC to own a full-auto AK-47? Would DC look like Beirut every night? Considering the largest city of colonial times was a few thousand people, could the framers have imagined a conurbation over a million? Etc.

MPorcius said...

"Considering the largest city of colonial times was a few thousand people, could the framers have imagined a conurbation over a million?"

London in 1770 had a population of 700,000, and by 1801 a population of 950,000. Paris in 1789 had a population of 630,000. That's more than a "few thousand people."

JohnTaylor88 said...

I thought Breyer's dissent was much better than Stevens, because it was was based on facts and not misinterpretations. ... Do we really want every resident of DC to own a full-auto AK-47? Would DC look like Beirut every night?

Except Breyer's opinion is not based on facts. He misreads the scientific literature to rationalize his unwarranted skepticism and then all but acknowledges there is no positive case for keeping the D.C. gun ban, yet argues the D.C. Council could have been concerned about the gun violence that the ban fails to curb. As for your irrational fears of what might happen if the gun ban were lifted, the gun ban has been lifted and no spikes of violence have yet been observed. Furthermore, assuming there will be violence when a majority blck jurisdiction has gun rights, but not when rural whites have them, is racist. Everyone knows that "urban" is code for "black and poor".

John said...

"Do we really want every resident of DC to own a full-auto AK-47? Would DC look like Beirut every night? "

That is just alarmism. First, AK-47s are quite expensive. They run about $1500 or more per weapon. Second, they are not that useful in committing crimes. If you want to murder someone, you want a small concealable weapon that can be easily ditched and can't be traced back to you. An Ak47 has none of those qualities. Further, if you want to kill a large number of people in a small area, a weapon such as an MP5 or a semiautomatic shotgun would be just as effective. I daresay few criminals or people in general would be running around with Ak 47s if they were legal.

Lastly, in both Switzerland and Israel assault weapon ownership is compulsory for some people. Those places haven't turned into Beirut. Ultimately, if you argue that we don't want people running around DC with AK 47s when we know people in Switzerland and Israel doing the same isn't a problem, you are back to Breyer's tired racist trope that guns are okay for white people just not for inner city black people.

former law student said...

I'm not saying Breyer is correct; I'm just saying his dissent is respectable.

In colonial times, London, Paris, had [a lot of people]

However populous the Old World cities were, in 1790, New York with its 33,000 people had just taken the U.S. population lead away from Philadelphia.

AK-47s are quite expensive. They run about $1500 or more per weapon.

That's about 5X what they're worth. The street price in Baghdad is even lower.

there is no positive case for keeping the D.C. gun ban, yet argues the D.C. Council could have been concerned about the gun violence that the ban fails to curb.

This is well-known as "rational basis review," the kind of review that laws get when they don't infringe a fundamental right.

Lastly, in both Switzerland and Israel assault weapon ownership is compulsory for some people. Those places haven't turned into Beirut.

1. Are you talking about the Israel in the Middle East? Because that one is no poster child for non-violence.

2. Switzerland is a bad argument, too, because, except for kids in training, every one of those assault rifle holders is in the Swiss Army. This universal service creates lifelong bonds of shared sacrifice and love of country, as well as a sense of obligation and discipline, among native speakers of four languages, from every canton in the confederation. This does not resemble the population of DC in the slightest. As a side note, when they retire at age 45 (officers can be older), they can keep their service rifle, after it's been converted to semi-auto.

Kirk Parker said...

Boaz,

No kidding! Cough, cough, ahem, Bellesiles, cough, splat...

Trumpit,

"So, what if it had gone 5-4 the other way? What would have been the resultant effect of such a ruling?"

The result: it would be the day, and decision, identified by future historians as to when the 2nd American Civil War became inevitable.


Finally, an even stronger answer to the "AK-47 question" is that it depends almost entirely on what happens to those who criminally misuse their rifles. That is a large part of why Switzerland is so peaceful despite almost universal firearm ownership, while Mogadishu isn't.

JohnTaylor88 said...

I'm just saying his dissent is respectable.

Only if racism is respectable. You must think racism is respectable, FLS. Are you a racist?

JohnTaylor88 said...

This is well-known as "rational basis review," the kind of review that laws get when they don't infringe a fundamental right.

Is there any other right in the Bill of Rights that is subject to rational-basis review? And, wouldn't presuming the Second Amendment does not secure an individual right be begging the question? Not something a respectable judge would do.

former law student said...

Is there any other right in the Bill of Rights that is subject to rational-basis review? And, wouldn't presuming the Second Amendment does not secure an individual right be begging the question? Not something a respectable judge would do.

I think here Breyer might have been giving Scalia a dose of his same treatment from Lawrence v. Texas. S D O'C wrote that there was a right to homosexual sodomy, but Scalia's dissent unsuccessfully tried to bait her into fitting that right into the strict scrutiny/intermediate scrutiny/rational basis format. In fact, Scalia's characterization of the majority decision dominates, and the decision is presumed to have been a rational basis review.

So, it's Scalia's own fault for not characterizing the RKBA as a fundamental right. Breyer's characterization of the right as non-fundamental may prevail in the minds of jurists.

JohnTaylor88 said...

So, it's Scalia's own fault for not characterizing the RKBA as a fundamental right.

1. The battle over whether rights are fundamental concerns the question whether unenumerated rights can be as fundamental as enumerated rights. It is obvious that the Second Amendment is an enumerated right. It is right there in the Bill of Rights.

2. The right that Justice Kennedy describes in Lawrence is found nowhere in the Constitution. It is an unenumerated right.

3. In the Heller opinion, Scalia cites to Carolene Products' Footnote 4, which is a seminal and landmark case that sets forth the fundamental rights analysis you were supposed to have learnt in law school.

Therefore, your account of Breyer's opinion is nonsensical. I take this means you in fact are a racist and wholeheartedly support Justice Breyer's racist opinion.

former law student said...

In the Heller opinion, Scalia cites to Carolene Products' Footnote 4

He does so in a footnote. In the text, he says the DC ordinance could not survive any level of scrutiny. He does not state the appropriate level of scrutiny gun laws should receive, just as S D OC didn't.

JohnTaylor88 said...

He does so in a footnote. In the text, he says the DC ordinance could not survive any level of scrutiny. He does not state the appropriate level of scrutiny gun laws should receive, just as S D OC didn't.

Caroline Products' Footnote 4 is a footnote. It is still bedrock constitutional law that you should have learned in law school, you racist. There is no reason to state the level of scrutiny because the D.C. ban fails under any standard of scrutiny. But rational-basis review -- set forth in Breyer's racist dissent -- was explicitly rejected. So, even if you are right, you are still wrong, and therefore still a racist.

David E. Young said...

Professor Rakove repeated an error to Professor Volokh that was originally contained in the historians' Heller amicus. It was that only two of the period declarations of rights, MA and Pa, were part of their state constitutions. Actually, North Carolina and Vermont both copied the PA language verbatim on this point. There is also other historical evidence contradicting Rakove regarding other states' BRs as well.

One has to wonder how there can be simple errors of fact such as this in a brief to the Supreme Court from a total of fifteen academic historians.

I severely criticized Rakove's Heller amicus brief in a February 18, 2008 History News Network article for errors of fact and getting of track in dealing with a Bill of Rights provision.

The HNN article, for those interested in the details of Second Amendment history, is at:

http://hnn.us/articles/47238.html