In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a strong defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the decisive vote.
March 18, 2008
Oral argument in the DC guns case.
Lots of coverage over at SCOTUSblog.
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37 comments:
Kennedy’s inclinations might make him — once more — the holder of the decisive vote.
Certainly hope so.
Reading what the authors of the Constitution wrote about individual gun rights from sources other than the Constitution leaves no doubt as to where they stood on the issue. If their intent and meaning was honored, the case would be quite simple.
Trey
I don't know much about law, and I'm hoping that Professor Althouse can explain a pretty fundamental aspect of constitutional law that I've never really understood:
Suppose that we somehow stumbled across a later revision of the Bill of Rights, and it included one more amendment: "Festive occasions being good for the soul, the right to gay marriage shall not be infringed."
How should the Supreme Court interpret this new amendment? Clearly, the original authors didn't intend to endorse a legal homosexual union: The word "gay" didn't even have this meaning at this time. Wouldn't the meaning of this new amendment depend upon the author's intended meaning at the time that it was written?
If so, then why is our interpretation of the 2nd amendment any different?
That is, why can't we look at the other writings of the people who wrote and agreed to the 2nd amendment to know whether they considered this an individual right to keep and bear arms, or a collective right?
I assume that we can't look at this evidence, because if we did, then there could be no argument -- the founding fathers led an armed rebellion against a powerful government, and they believed that individuals had not just the right, but the obligation, to arm themselves with the most powerful weapons available (including canon and actual warships) in order to protect their rights not just from criminals, but from the government itself.
So: Does the intent of the author matter in the interpretation of the constitution?
If so, then why do we continue to argue over the 2nd amendment, when it should be a slam-dunk?
It sounds like things are looking good for the second amendment.
We can't have people running around with machine guns and antiaircraft missles and building nukes in their basements, so the "right to bear arms" must be infringed. Learning how to make the Second Amendment say so is what people spend years in law school for.
Many people (not me) thought it was a good thing when the Sup Ct was looking at condemnations.
Then they got Kelo.
It wasn't what they thought they'd get.
I fear this case will be the same.
A couple of things came up in the argument that I'd hoped would be said. Dellinger made a point that I very much agree with, which is that it is no argument at all to say that if the original meaning of a clause of the bill of rights protects a right that is now vestigial, so we have to construe it in a way that has ongoing force. The Third Amendment, for example, is scar tissue left over from the Quartering Acts. It's inconceivable that a situation would arise today in which that amendment would be violated. But that doesn't mean that the Third Amendment should now be given some insanely broad interpretation just so that we can say it means something. The clause hasn't been deleted, it's just vestigial, just as the requirement of due process before deprival of life would be largely vestigial if the death penalty were abolished, to give another example. I disagree with Dellinger's conclusion as to what right the Second Amendment protects, but he's certainly correct on that point, in my own view. As Justice Ginsburg alluded to, if Dellinger's view of the original meaning were correct the Second Amendment would have no force if states abolished their militia. But that's a big if.
I also thought Clement made an outstanding structural point about where Madison proposed to insert the second amendment; some here will know this and others won't, but when the bill of rights was proposed, the practice of amendments being appended to the text rather than being spliced in was not envisioned, and Madison assumed that they would be operating on the Constitution, inserting and deleting. I'm dubious about using legislative history, even with regard to Constitutional provisions and amendments, but it was a neat point.
Pastafarian:
"Does the intent of the author matter in the interpretation of the constitution?"
No. Not in my view, at any rate - I know that Blackstone said that courts of law and equity are "bound, and ... profess, to interpret statutes according to the true intent of the legislature," but in my view, when dealing with authoritative texts, that's netiher possible nor defensible. What matters when construing authoritative texts - the Constitution, statutes, contracts, etc. - the primary interpretative criterion is, what was the original public meaning of the text. Sometimes that question isn't dispositive of a specific question, but that's the primary criterion. Bork put it felicitously in The Tempting of America: we don't ask what the framers intended by "lay taxes," but what "lay taxes" would have been understood to mean by a reasonable person contemporaneous with the adoption of the text: "[i]f someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest ... Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time." See also footnote 19 of my post here. And even if we thought, for some reason, that the intent of the lawgiver was dispositive, that position remains incoherent - whose intent? The drafter? Most texts are not written by one man or woman, and as much as "[i]ntent is elusive for a natural person, [it is] fictive for a collective body" such as Congress or the Constitutional convention. Frank Easterbrook, Text, History & Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 68 (1994).
it is no argument at all to say that if the original meaning of a clause of the bill of rights protects a right that is now vestigial, so we have to construe it in a way that has ongoing force.
Pity. Hillary's legal team probably has an idea or two about giving force to the vestigial Three-Fifths Clause.
Law talk aside, the DC legislation doesn't make any sense from a practical standpoint.
The elected officials will repeatedly say themselves that they have a huge gun crime problem...so the ban did nothing, essentially. DC is routinely one of the cities with the highest murder rates per capita - most of that damage is done with handguns.
The genie is out of the bottle, time to allow the law abiding populus to arm themselves.
Simon: I get the impression that the question is not whether to interpret according to the intent of the original drafter or the original public, but rather whether to interpret according to the intent of the original drafter or the present-day public.
It is fairly easy to divine the intent of the original drafters. It may be harder to divine the thinking of the public at that time.
Dan: A journalist on C-SPAN today noted that DC also has a below average rate of suicide, and indicated that may be one positive side effect of the handgun ban.
Personally, that doesn't hold much water for me. First, there doesn't seem to be any huge uproar against guns in order to prevent suicides; those who oppose gun ownership overwhelmingly cite a need to lower crime overall. (Which of course seems to have had an opposite effect in DC, though to be fair I'm inclined to believe that's due more to a combination of the local ban with the lack of a ban in neighboring Virginia.) Secondly, even if less guns caused less suicide, I'm not so sure we should be in the business of preventing suicide - except by preventing the causes, rather than the implementation. For that matter, I feel the same way about crime.
It's inconceivable that a situation would arise today in which [the Third] amendment would be violated.
Engblom v. Carey, 677 F.2d 957, was a 1982 court case decided by the United States Court of Appeals for the Second Circuit. It is the only significant court decision based on a direct challenge under the Third Amendment to the United States Constitution.
The case was initiated by a 1979 strike by New York State correction officers. While the officers were on strike, some of their duties were performed by National Guardsmen who were activated. At Mid-Orange Correctional Facility (and other facilities) striking employees were evicted from employee housing which was then used to house some of the National Guard. Two of the evicted officers at Mid-Orange C.F., Marianne E. Engblom and Charles E. Palmer, subsequently filed suit against the state of New York and its governor, Hugh L. Carey.
The decision, rendered on May 3, 1982, established that the National Guardsmen legally qualify as soldiers under the Third Amendment, that the amendment applies to state as well as federal authorities, and that the protection of this amendment extends beyond home owners. The majority stated that the officers' occupancy in the rooms was covered under the legal rules of "tenancy" and was protected under the Third Amendment. There was a minority dissent which stated the officers' occupancy was covered under the lesser protection of employee housing and held that the special circumstances of residency on prison grounds superseded Third Amendment protection. The case was remanded to district court where it was decided in the defendants' favor, due to the principle that as agents of the state, the defendants were covered by a qualified immunity unless they were knowingly acting illegally. In the absence of previous precedents on this issue, the standard of knowing illegality was not met.
During an exchange with one of the Justices, it seems that Dellinger came close to conceding that there is no constitutionally protected right of self-defense in one's home. But I'll have to check the transcript to make sure.
If he did make this concession, he lost the case then and there. (Although I think that J. Stevens probably agrees with him on this.)
In the days before the Revolution, Colonial families owned and used guns regularly. The Michael Bellesiles claims to the contrary exposed as fraud. There was no effort to require Colonists to pay hefty sums for a gun ownership "permit" issued at the whim of British bureaucrats or local constables.
And the reason is not the utiltarian argument - though police were nearly non-existant and criminals were dealt with by armed townsfolk marching them 20-50 miles to the nearest court and gaol. Or that 85% of Colonists were farmers that contended with hostile Indians when their threat was real but not intense enough to mobilize the militia and abandon crops on other farms for citizen soldiering. And guns were regularly used to protect lifestock from predators like foxes, wolves, hawks - and crops from damage by varmits like deer, raccoons, woodchucks.
No, the right to bear and why Britain didn't meddle with it was based on EXISTING Rights before the Revolution. In fact, won in the Glorious Revolution of 1688 that followed the English Civil War.
That 1st Revolution guaranteed the right to keep and bear arms was not an aristocratic privilege (think of anti-gunner Teddy Kennedy with his armed professional bodyguards) - but the right of citizens to defend themselves and their property against the brigands and thieves that beset the English countryside in and after the Civil War, and to defend the citizenry of the Reformation against raids by those opposed...
Paul Brinkley said...
"Simon: I get the impression that the question is not whether to interpret according to the intent of the original drafter or the original public, but rather whether to interpret according to the intent of the original drafter or the present-day public."
I think there's significant divide as to whether intent and/or purpose controls notwithstanding text, but sure, I've said before that the concept of the evolving standards of decency may originate in the 8th Amendment setting, but it's a reasonably good way of looking at what living constitutionalists claim to be doing.
"It is fairly easy to divine the intent of the original drafters. It may be harder to divine the thinking of the public at that time."
I think it's impossible to divine the intent of the original drafters for the reason that Easterbrook mentioned, op. cit.: collective bodies don't have a singular intent. James Madison and Gouverneur Morris likely had different intentions from one another; they certainly had different intentions from Roger Sherman and Luther Martin, and why any of their unwritten intentions should be binding when it was the text - set in the context of the original understanding - that was ratified is beyond me.
Mort - alright, I'll rephrase: it is exceedingly unlikely that the Third Amendment would be violated today. ;) I've not encountered Engblom before, but at first glance, I'm dubious; the plaintiffs were corrections officers living in on-site quarters provided by the corrections facility. That seems analagous, to me, to the President's residency in the White House or the soldier's residence in baracks. It might be his "home," but it is not the sort of home that that the Third Amendment had in mind. I'll find the case this evening, but I admit to being a little dubious. I've been wrong before, of course - heck, I changed my mind three times reading the opinions this morning!
I thought you'd like the case.
Enjoy.
simon says: "...why any of their unwritten intentions should be binding when it was the text - set in the context of the original understanding - that was ratified is beyond me."
If I were to state that I believe that all green apples should be outlawed, and then passed a law that outlawed all Granny Smith apples, and later stated that I had been under the impression that all green apples were Granny Smith and vice versa, then I believe a judge should interpret the law as outlawing only Granny Smiths. (Let's suppose I have the power to pass such laws, and that otherwise, US Constitutional law is in effect.)
If, on the other hand, I passed a law saying "all instances of X are hereby outlawed", and later on, people couldn't tell whether I meant "X, the detergent" or "X, the cattle prod", but then later still some letters of mine were found in which I extolled the virtues of the detergent and raged against the safety hazards of the cattle prod, one could judge that the law referred to the latter, not the former.
In other words, it is important, precisely because it disambiguates the meaning of ambiguous text. (Personally, I don't consider the text of the Second Amendment to be that ambiguous, but obviously my opinion is not unanimous.) If the text is unambiguous, then as you cite, it should mean as it says.
IANAL, but this is the way I would expect the law to run, from my layman's perspective.
Oh, I left a loose end - I meant to say that furthermore, I agree that things get messy if there are multiple authors with differing intents. However, I believe the authors in this case were largely unambiguous in intent. A brief Google search, for instance, jibes squarely with my anecdotal exposure to the issue for the majority of my life: nothing written by the Amendment's authors indicates that it should only apply to members of a militia.
For example, the question is addressed explicitly here:
http://www.counsel.net/chatboards/2nd-amendment/topic8/11.19.99.06.58.45.html
Oral argument excerpts hurriedly compiled at:
http://sophisticmiltonianserbonianblog.wordpress.com/2008/03/18/reading-the-tea-leaves/
I feel much less safe when I'm walking down the street than when I'm in my home behind locked doors. I'd like to carry a concealed pistol so I can blow the criminal bastards away if they make a move on me. The 8 young yeshiva students that were murdered by the Palestinian terrorist needed to be armed to defend themselves at their religious school. I don't see why concealed weapons are illegal. Do you think the criminal element cares about the law? Let them worry that I'm about to blow their brains out when they think I'm a easy mark. Death to the evil lawmakers that pass such dangerously stupid laws. That goes double for evil lawmakers that tamper with my drinking water by adding fluoride to it. Why don't they add calcium to prevent osteoporosis, or vitamin C to prevent scurvy? But then again you are an enormous fool, Revenant. Do I have to explain everything to your dumb ass?
Paul,
Two quick responses before I have to run to a meeting. First, the hypothetical is inapt; it's possible for you as a unitary lawgiver to have a singular, coherent intent. But Congress is a collective body; it is incapable of having an intent (if it were otherwise, if Congress' intent were law, intent would be a prerequisite for law, yet "Congress need not think about a subject for a law to affect it," Chi. Lawyer's Comm. for Civil Rights Under Law v. Craigslist (7th Cir., March 14, 2008) (slip op. at 8)). And the intent of any particular member is irrelevant: members need not share the same intent (indeed, may have no intent at all) to vote for a piece of legislation. The vote of a legislator who shows up blind drunk, who does not know where he is or what bill he is voting for (you know, think Cynthia McKinney on a good day), carries no more nor less force than the vote of his colleague who dilligiently reads the bill, absorbs its text, and has a specific intent in mind. Let's not even start on logrolling and similar. The point is that we have a process for enacting law, and it is that process that frames the question as what qualifies as law. The difference between an opinion shared by a majority of Congress - remember the Congress' brief in the instant case? - and law is the process of bicameralism and presentment. The only thing that undergoes that process is the text.
Second, there's the issues of fair notice discussed in the footnote cited in my earlier comment; I don't have time right now to restate what I've already said there, so I incorporate that by reference. The bottom line is that if the law said that all Granny Smith apples were forbidden, then it's only those apples that the reasonable person of tort law would understand to be "Granny Smith" apples that are forbidden. You may have intended to enact a law sweeping more narrowly or broadly - but you didn't. Intent and action are different.
Gotta run!
OK, it looks like this is going to be a very informative thread. I think that Althouse has some of the best commenters of any blog that I read -- and the very well-informed commenters come from both sides of the aisle.
Simon, I think I understand your point -- that the original meaning of the written words as they would have been understood at the time of the writing is what's important, not the intention of the writer.
So was the 2nd amendment understood at the time to mean that gun ownership was a merely collective and not an individual right? Do any commenters have any evidence of this?
Were there any antigun laws put in place shortly after ratification, for example, that were judged to be constitutional?
And there are dozens of quotes from virtually every person involved in the writing and ratification of the constitution that clearly indicate that they understood this amendment to mean an individual right. Is this evidence admissible?
Now, I undertand why people today might interpret the first clause of the second amendment to be a restriction on those to whom this right is granted. But this seems to be an interpretation based on today's less formal grammar. And isn't this the opposite of what the constitution does?
Doesn't the constitution list the things that the government CAN regulate? Aren't individual rights assumed to exist, unless explicitly listed as restrictable by the government?
So if the amendment says that the right exists, how could this be interpreted in any way as a restriction on that right?
I understand Smilin' Jack's point about not wanting people to have anti-aircraft missiles. Why wouldn't we just amend the constitution to prevent this? If, instead, we just allow the Supreme Court to decide that the constitution means whatever they want it to mean, based on their more modern sensibilities and some vague sense of popular opinion, then why have a constitution at all?
Ohio went to licensed concealed carry license about six years ago, maybe a dozen permits have been revoked (none for gun crimes) and to the best of my knowledge no CCL has ever committed a gun crime.
During deer rifle season in Michigan more than 600,000 men and women take to the field with high powered rifles. Add to that muzzle loader season and bow season, and there is a lot of firepower. This year, no murders and maybe six firearms accidents.
Outlawing guns would:
a) really anger law abiding owners
b) do nothing to people who knowingly violate the law for a living
I'm not a lawyer, but it seems if we have a right to a militia, not personal guns, the government becomes a potential adversary to be defended against. The militia could have no limits on the weapons it could obtain. I can't see how it could go both ways. Thsi would be a more dangerous outcome
The vote of a legislator who shows up blind drunk, who does not know where he is or what bill he is voting for (you know, think Cynthia McKinney on a good day)
Meow!
I suppose this case is what we have lawyers for--i make no sense out of the wording and structure of the second amendment. I do know, however, as C4 pointed out what the antecendents to American independence were. There is a considerable degree of history that preceded American independence, and it seems clear to me from that pespective, that the newly independent colonists would have fought to preserve their individual right to bear arms against the potential tyranny of their rulers. It seems to me that the history of the English civil war encompassing as it did nearly 80 years of of the 17th century argues for such an individual right. Of course, I have always preferred the opinions of historians over those of lawyers.
Pastafarian said...
"Simon, I think I understand your point -- that the original meaning of the written words as they would have been understood at the time of the writing is what's important, not the intention of the writer.
Right. Although, to be clear, not everyone agrees with me that that's the criterion - that's the big divide between originalists and living constitutionalists. And even among originalists, there's space for disagreement - sometimes the original meaning may not be clear (there's a wonderful case, McIntyre v. Ohio Bd. of Elections, where Scalia and Thomas argue over the original meaning of the 1st amendment for anonymous leafleting), and the original meaning doesn't authoritatively answer every question even once it's ascertained, because the Constitution is written in quite general terms; originalism on its own tends to set up a perimeter and say that "everything outside of this is the wrong answer. The right answer's in here somewhere." where originalism runs out, which it often does, you need other tools - it's not a complete matrix in itself.
"So was the 2nd amendment understood at the time to mean that gun ownership was a merely collective and not an individual right? Do any commenters have any evidence of this?"
That's the $64,000,000 question. ;) That said, it seems to me that the individual right vs. collective right model has been interred by this case; both sides start from the premise that it's an individual right. The difference is over the purpose of the right and to what extent the right's purpose cabins its exercise.
"Doesn't the constitution list the things that the government CAN regulate? Aren't individual rights assumed to exist, unless explicitly listed as restrictable by the government?
Yes - but that's stated at a very high level of generality. The Constitution gives the federal government power to "regulate" (inter alia) "interstate commerce" - but that's a "power" only in a very abstract sense. It's an area of policy that's given to the federal government, a policy object, an end rather than a means - and for that reason (particularly when combined with the sweeping clause), authorizes Congress to carry out a lot of unenumerated activities directed at regulating interstate commerce. Even the powers you'd think of as quite specific are fairly abstract - the power to "lay taxes," for example. Does that empower Congress to create the IRS? The Constitution doesn't say anything about an IRS. Does it empower Congress to give employees a benefits plan? The constitution doesn't say that Congress can create a benefit plan. But it does say that Congress can lay and collect taxes, and that general power has several more specific powers submerged in it, hidden just out of view - the power to decide what to tax, for example, at what rate, to provide a sensible mechanism for their collection, and to provide terms that will encourage people to join mankind's third oldest profession.
You see the problem - yes, the federal government is a government of limited, enumerated powers, but those powers are defined at a level of generality that makes it (in my view) hard to call them "powers" in the specific sense that we usually use that word. It's more apt to say that the Constitution creates a federal government that has a limited and enumerated sphere. That's basically what Marshall says in M'Culloch: "the powers of the government are limited, and ... its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." 17 U.S. at 421.
Thus, the Bill of Rights would be necessary even if we had faith that Congress would never act ultra vires. Madison spoke directly to that point in proposing the Bill of Rights to the first Congress, which is worth extended quotation:
"It has been said, that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a call of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true, the powers of the General Government are circumscribed, they are directed to particular objects; but even if Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the State Governments under their constitutions may to an indefinite extent; because in the constitution of the United States, there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the Government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the Government was established. Now, may not laws be considered necessary and proper by Congress, for it is for them to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary nor proper; as well as improper laws could be enacted by the State Legislatures, for fulfilling the more extended objects of those Governments. I will state an instance, which I think in point, and proves that this might be the case. The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the Legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the State Governments had in view? If there was reason for restraining the State Governments from exercising this power, there is like reason for restraining the Federal Government."
Simon --
Wow, there's a lot to digest there. I'm going to have to Google a few of those words, too. A few more thoughts:
You mentioned Living Constitutionalists. Apparently, this entire philosophy is based on a few quotes by some of the framers, typified by one from someone named Randolph, who stated that the constitution mentioned general principles only, so that government wouldn't be clogged by provisions that couldn't be changed, when those provisions ought to change with the times.
(So they'll allow us to look back at something beyond the constitution itself that one of the framers said in this instance, but not when we're trying to determine the meaning of the second amendment. If we look back and find quote after quote from everyone involved in writing the constitution stating that the second amendment is an individual right, then this doesn't count, because it's not in the document).
Now, clearly, obviously, he meant that such things as "just compensation", as it applies to eminent domain, should be interpreted in terms that make sense at the time of the case in question -- the market value of a house wouldn't be set in 1776 dollars, for pity's sake. But to then extend this contemporaneous reading to all aspects of the constitution, imagining that there's a constitutional right to an abortion, for example, just because a majority of us want there to be one, seems like the very definition of intellectual dishonesty.
Does anyone honestly believe that the writers of the constitution welcomed a time when their document would be interpreted to protect the right to an abortion? That they purposely wrote it so that someone could interpret it this way?
Where in the constitution does it say that the constituion is a living breathing thing?
Why did the framers bother with all that nonsense about amending the constitution, when it can be changed just by whim, by someone deciding what the definition of the word "is" is based on our new and more enlightened set of values?
It's this sort of thing that makes me really hate lawyers. (No offense).
Trumpit said...
I feel much less safe when I'm walking down the street than when I'm in my home behind locked doors...
How can that be. You are a prisoner on your moter's basement, never to see the light of day for some unspeakble offense or conduct. You are not allowed on the streets or any contact with real human beings.
You would not know one end of a gun form another and would probably wind up shooting yourself. so, just plod on, pretending you knoe anything obout everything. We will just keep laughing at your terrible twos temper tantrums.
Yes, another argument for carrying a concealed weapon is that it would reduce the need for police protection which is wholly inadequate anyway - dial 911 and wait forever. Useless in an emergency!
Middle Class Guy is typical of the brutish losers with low IQs that are attracted to law enforcement. I am in favor of a minimum education and IQ requirement in order to possess a firearm. That would rule out MCG as an owner of anything more deadly than a butter knife. I would definitely feel safer knowing that that emphysemic clod can't harm anyone or anything. He's a menace to society as it now stands.
It seems this case may get into the area of what reasonable limitations may be imposed on the right to bear arms, without infringing on the 2nd ammendment. With that in mind, what are the principles on which 1st ammendment limits (eg, crying "fire" in crowded theatre, etc.) are based, and would these be applicable to 2nd?
If you want to apply the "crying fire" limits to the 2nd amendment it would have to be something like not firing your weapon inside a building or within so many feet of a residence.
Really, what limitations are there on the first amendment? Libel,slander, defamation and "crying fire. There really aren't many.
I'm not sure I've ever heard anyone advocating licensing newspapers or reporters.
Would that be a unreasonable infringement?
TMink said...
Reading what the authors of the Constitution wrote about individual gun rights from sources other than the Constitution leaves no doubt as to where they stood on the issue. If their intent and meaning was honored, the case would be quite simple."
Actually if you read the evolution of the wording of the amendment you are quite wrong.
Much of this was visited on a previous 2nd amendment blog-thread. but let's take a look at the reverse which was i think a georgia town that required gun ownership. how would that issue fair up against the arguments posed in this case? does this boil down the core that local governments have no say whatsoever regarding private gun ownership?
If the local authorities cannot bar gun ownership nor can they mandate it, what can they do? This sounds like another Roe v. Wade waiting to happen.
Simon?
Mark, that's the question. :) As I see it, stipulating that the Second Amendment confers a personal right doesn't entirely deal with the case, because, as you allude to, even the undoubtedly personal rights elsewhere in the bill of rights aren't absolute. The District argues that the scope of the right is limited by the purpose of the right, that the purpose is militia-related, and thus that their regulation is reasonable. I don't agree with that, but one can easily think of other gun-related laws that the Second Amendment tolerates. For example, I don't think that the Second Amendment prevents a law requiring registration; IIRC I've written about this before here, and the gist is that although you can argue that registration facilitates disarmament later on, you get into a "for want of a nail" mode of interpretation: for want of a nail, a kingdom was lost, so does the Constitution's grant of control over foreign affairs, war, and peace allow Congress to regulate the training and licensing of blacksmiths?I think you can argue that the Second Amendment prohibits registration, but only by buying into the Griswoldian idea of penumbras and emanations - sure, the Constitution forbids Y, not X, but X leads logically to Y, so it also forbids X.
Pastafarian - as to whether it says that the Constitution is a living, breathing thing, no, of course not. On the other hand, where does it say in the Constitution "separation of powers"? Where does it say "judicial review"? Some things you have to infer from the overall structure of the doctrine, some by understanding what the presuppositions were that underlie the grant of power (the 11th Amendment and sovereign immunity's a great case study on that subject), and from the nature of the Constitution qua a constitution (and, in my view, from its "writtenness," from its being a written instrument). The Constitution doesn't say "living constitutionalism"; it doesn't say "textualism" or "originalism" either - but I would argue that textualism and originalism flow naturally and inexorably from the written nature of the Constitution and from the original understanding of what they were doing by enacting one.
Harry, there's an interesting wrinkle with regard to what this case might hold for states and localities.
Assume, for sake of argument, that we all agree that the criterion is that the original meaning of a provision, the ordinary public meaning of its text at the time of ratification, is dispositive. The Second Amendment was ratified in 1791, so this case is full of discussions of what the founding generation understood the text of the Second Amendment to mean. But states and localities aren't bound by the Second Amendment, or any other provision of the bill of rights. That's a surprising claim, but bear with me.
The Fourteenth Amendment incorporates the bill of rights against the states, by one of two routes. My view is that it does so through the privileges or immunities clause, and the "privileges or immunities" that it protects grant the citizens of the states the same rights against the states that they had against the federal government. But according to originalism, it has to grant them the rights that they were understood at that time to have against the federal government. Thus, when we look at what encumbrances the Second Amendment places on the feds, we look to the original understanding of the text in 1791; to understand what limits it places on the states, we would have to ask what the second amendment was understood to mean in 1868 - which may be quite different.
Of course, the court hasn't seen things my way, and has procedeed to incorporate the bill of rights "selectively" as a subset of substantive due process. Under that inquiry, it's looking for questions of fundamental rights - what do we think is so important that it's "implicit in the concept of ordered liberty" and therefore withheld from the democratic arena? And under that theory, it seems to me, the answer's a crapshoot, which is why the court's jurisprudence in that area is barely coherent, barely legitimate, and stubbornly underenforces the legitimate sweep of the bill of rights by failing to incorporate, for example, the 7th Amendment. It lets them pick and choose; maybe they'll decide that "self defense" is a fundamental right that's served by allowing citizens to possess guns - or maybe they won't. Like so many questions, that will depend on who wins the election later this year and who they appoint to the Supreme Court. It won't be me. ;)
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