That’s the topic of my new article, for a forthcoming issue of Cardozo Law Review de Novo (the on-line supplement to Cardozo’s printed journal). The article will be part of a symposium issue on McDonald v. Chicago.
Here’s the abstract for my Cardozo article:
This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.
“Living constitutionalism” should be distinguished from “dead constitutionalism.” Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect constitutional rights. Under a “dead constitution,” judges simply impose their personal values, and nullify parts of the Constitution which they do not like.
When living constitutionalism is taken seriously, the case for the Second Amendment individual right to own and carry firearms for self-defense is very strong. In the 19th century, almost all legal commentators and courts, as well as the political branches and the public, recognized the Second Amendment as guaranteeing such a right.
In the 20th century, some elements of the legal élite asserted that the Second Amendment guaranteed no meaningful right. But this view was never accepted by the public or by the political branches. Congress repeatedly enacted laws to protect Second Amendment rights. In the states, right to arms constitutional provisions were added or strengthened, and many statutes were enacted to defend and broaden the right, especially in the last several decades. Opinion polls showed that the public always believed in the Second Amendment right.
As Jack Balkin has elucidated, the ability of groups such as the NRA (or the ACLU or NAACP) to mobilize constituencies, persuasively communicate their constitutional vision to the public, and influence the political process in favor of the appointment of sympathetic judges is a major force which shapes our living constitution.
From an originalist standpoint, the living constitutionalism of the Second Amendment had a positive influence, in that the social and political forces which living constitutionalism celebrates finally convinced the Supreme Court to stop ignoring the Second Amendment. Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.
For discussion of Judge Benjamin Cardozo’s viewpoint on self-defense, see pages 15-17 of the California and Nevada district attorneys’ amicus brief in McDonald.
Ryan Waxx says:
I wonder if it was intentional that you reversed the common meaning of “living constitution” from people who ignore the constitution in favor of policy preferences to ones who try to obey it?
OTOH, I hate to say this but your definitions of “living constitutionalism” and “dead constitutionalism” seem to unfairly present a false choice fallacy – not everyone who opposes incorporation seeks to scrap the constitution.
[DK: One can oppose incorporation without wanting to eliminate the entire Constitution. However, if one opposes using the 14th Amendment to make the right to arms applicable to the states, then one is neither an originalist nor a living constitutionalist, at least in regards to the 14th Amendment.]
December 19, 2009, 2:19 pmOrin Kerr says:
So the two choices are constitutionalizing opinion polls or imposing a judge’s personal opinions? I sense that other options are available. I would offer a third approach, “undead constitutionalism,” in which both opinion polls and the judge’s personal opinions are irrelevant.
[DK: No, those aren't the only two choices. As the article notes, there are also various forms of originalism. And any other theory of constitutional law. The article just examines one particular theory, living constitutionalism, as applied to the right to arms.]
December 19, 2009, 2:47 pmPersonFromPorlock says:
O, shame, shame! You’re not allowed to expropriate the other side’s terms like that: “living Constitution” can only mean ‘as it lives in the minds of Liberals’. ;^)
December 19, 2009, 3:14 pmDilan Esper says:
the most famous example of undead constitutionalism is justice scalia’s concurrence in lamb’s chapel v. center moriches school district
December 19, 2009, 3:24 pmDan Hamilton says:
So Orin is saying we need Vampire constitutionalism that is strong enough to destroy the others.
BTW – I don’t like that everybody is JUST talking about self-defense. The 2ed IS NOT ABOUT SELF-DEFENSE it has always been about REVOLUTION!! The dirty little secret that must not be spoken. You might scare the judges and lawyers. They believe THEY are the last word and everyone MUST believe that.
December 19, 2009, 3:46 pmGuy says:
The third option is always Dracula.
December 19, 2009, 4:29 pmGuy says:
I’m not going to pretend to be an authority on “living Constitutionalism”, but I think if the 14th Amendment is considered to incorporate rights that are a necessary component of “ordered liberty”, then the question under the “living Constitution” theory becomes whether it is considered necessary to ordered liberty today, not whether most people feel they have a right to bear arms. Also I thought “living Constitutionalism” was sometimes used with special reference to what society knows, not what opinion polls suggest most people believe, thus the opinions of experts in various fields of physical, medical, and social sciences have special weight, because they are assumed to convey findings of factual reality, as opposed to mere opinions.
I don’t oppose 2nd Amendment corporation, certainly not in light of Heller being binding precedent, and I wouldn’t describe myself as an adherent to the “living Constition”, but I’m not sure “If you’re a living Constitionalist, then you must support 2nd Amendment incorporation” is definitely clear. I assume you’re not a follower of this interpretive theory? If not, I’m not sure you’re an authority on how to properly apply it, or on how it should be defined.
December 19, 2009, 4:52 pmShag from Brookline says:
Does “the right to arms in the living Constitution” mean that regulation of this right at both the state and federal levels is necessary and appropriate to keep people living rather than dying from unlimited exercises of this right along the lines of Justice Scalia’s dicta that is not supported by originalism?
December 19, 2009, 4:53 pmGuy says:
I would also point out that the “dead constitutionalism” you bring up sounds like an indirect way of suggesting that anyone who claims to be a living Constitutionalist and disagrees with your analysis is really a believer in that theory. It is also a term that does not hide it’s bias, I think virtually everyone would agree that judges should be careful to eliminate their personal biases in decision-making, but to some degree it is unavoidable, and to a very limited degree it is not necessarily inappropriate; the choice of what interpretive theory to follow, at the very least, represents a personal opinion of the judge. There is a reason that Republicans like to appoint Catholics to the bench, and the reason Democrats like to appoint women and racial minorities goes beyond identity politics, women and racial minorities are more likely to support a strong Equal Protection Clause, Catholics are more likely to limit the “right to privacy” and support a weak Establishment Clause, is it inappropriate, in your opinion, that these factors play a role? Do you think the Constitution is weakened by the presence of these factors?
December 19, 2009, 5:26 pmGabriel McCall says:
I agree with many of the above posters that your definitions of living and dead constitutionalism strike me as contentious and idiosyncratic, and indeed directly opposed to the common understanding and usage of those terms. This makes it difficult to examine the remaining content of your article at all seriously.
December 19, 2009, 5:45 pmTweets that mention The Volokh Conspiracy » Blog Archive » The Right to Arms in the Living Constitution -- Topsy.com says:
[...] This post was mentioned on Twitter by R. Richards, Eugene Volokh. Eugene Volokh said: The Right to Arms in the Living Constitution: That’s the topic of my new article, for a forthcoming issue of Ca.. http://bit.ly/8JCmEw [...]
December 19, 2009, 6:13 pmCornellian says:
Now if they’d just stop overlooking the 9th and 10th amendments, and of course the critical 3rd amendment, then we’d have a full set.
December 19, 2009, 6:13 pmGuy says:
Incorporate the 10th Amendment? I’ll have to think to figure out what would constitute a state violation of the 10th Amendment, pretty confusing.
For proponents of total and literal incorporation, what about the grand jury requirement? Most states have systems that work better than grand juries, are they unconstitutional? Or should the relevant clause be read to mean what it’s been incorporated to mean; that you must provide a system that is at least as good as that one? (And thus that the federal government is not bound by the plain meaning of the amendment?)
December 19, 2009, 6:24 pmwlpeak says:
Heh. When it comes to the peoples suffrage, I think the prudent among the elites advise caution and recall the military adage, ‘Forget not, the enemy gets a vote’.
December 19, 2009, 6:40 pmThe Right to Arms in the Living Constitution | Liberal Whoppers says:
[...] post: The Right to Arms in the Living Constitution Share this [...]
December 19, 2009, 7:08 pmChris Travers says:
And with these words, Dan Hamilton violates 18 USC 2385 as it was interpreted for many years before the activist judges on the Supreme Court narrowed it in Yates v. United States.
December 19, 2009, 7:41 pmChris Travers says:
Cornellian:
Even if not formally incorporated, the Third Amendment does bind the states, does it not?
Or am I misreading Engblom v. Carey?
If the 3rd Amendment binds the states even without incorporation, wouldn’t deciding whether it is formally incorporated be unnecessary in every possible decision?
December 19, 2009, 7:43 pmChris Travers says:
(The court in Engblom ruled that the Governor of New York could not striking prison guards out of state-provided workers’ housing to house Nat’l Guardsmen brought in to provide replacement security forces even though the state owned the housing, the third amendment wasn’t incorporated, and that the housing was contingent on continued employment by the state.
It seems t me that such a robust reading of the third amendment renders the incorporation question entirely irrelevant.)
December 19, 2009, 7:46 pmLiving Constitution and the Right to Arms | Snowflakes in Hell says:
[...] Dave Kopel has a new law review coming out on the subject. This is something we’ve talked about here too in regards to the history of the Pennsylvania constitution, where successive constitutional conventions have preserved the right intact. [...]
December 19, 2009, 7:51 pmInstapundit » Blog Archive » DAVE KOPEL: The Right to Arms In The Living Constitution…. says:
[...] DAVE KOPEL: The Right to Arms In The Living Constitution. [...]
December 19, 2009, 10:00 pmNeo says:
Living constitutionalism does not always lead back to enforcement of original meaning, but in District of Columbia v. Heller, it did.
But this is a false choice. For years the meaning of the 2nd amendment had be interpreted as “guns for militias” and Heller defined it as “guns for individuals”, but this overlooks a 3rd choice “guns for individuals to be used for militias when necessary.” Heller defines the scope of the right to be vastly restricted to necessary arms for individuals (pistols and rifles), but the Framers probably meant that individuals should be able to own all the means of warfare necessary for a militia. This would include, but not be restricted to, pistols, rifles, automatic weapons, rockets, missiles, armoured vehicles, aircraft and battleships. Most would agree that this list goes beyond Heller.
Historically, the young nation of America remembered well that they were outgunned and out supplied during the Revolutionary War depending on the meager supply of weapons that had been under private ownership prior to the outbreak of hostilities, most especially at the beginning. They didn’t want to repeat this mistake again.
December 19, 2009, 11:27 pmZelsdorf Ragshaft III says:
While in the first part of the amendment militias are the topic as being necessary for a free state. The second part which is where the meat is, is “the right of the people to keep and bear arms shall not be infringed”. This statement is not subject to interpretation. It says what it says. Violate this section at your own risk. It was and is intended as a trip wire. If you wish to disarm me, I will resist.
December 20, 2009, 12:27 amkarrde says:
Neo,
However meager the supply of arms in private hands was during the Revolution, historian Clayton Cramer notes that many times the State governments assumed that a majority of their troops would bring their own muskets to battle.
Several localities and States had laws fining militia members who were found to not own a musket, a satchel of shot, and a minimum amount of gunpowder. Often, a milita would be funded, with the amount of money set aside for providing muskets far inferior to supplying a musket for each man enlisted.
See his book Armed America for details.
It is easier, in my opinion, to argue that the Framers understood the need for musketry and pistols on the frontier, as well as the need for local defense from a local militia in all portions of the Union. I note that they didn’t assume a need to supply guns for the local militia. Rather, they needed to make sure that the new Federal Government wouldn’t restrict the weapons legally available to a local militia.
December 20, 2009, 12:34 amJ. Aldridge says:
That can easily be proven false.
December 20, 2009, 12:45 ammac says:
I’m not a lawyer. This issue, however, is too important to be left to them. With as many problems as the U.S. has right now, and as incompetent the political classes appear to be, the one item that could actually start a second American civil war would be a move by the Federal government to confiscate most privately owned firearms. The Second Amendment IS a tripwire, and any government in this country approaching it with an eye to further limitation of citizens’ firearms rights does so at their, and the nation’s, dire peril.
Even that collection of cranks, cravens and loons known as the Ninth Circuit recognizes that.
December 20, 2009, 1:49 amLawhawkSF says:
I have a slightly different take. The “living Constitution” was a politico-legal concept whipped up by liberals and court activists to suggest that anyone who did not subscribe to the concept was living in an archaic past. Most importantly it was designed to make the opposition look like fools for believing in a “dead Constitution.” It’s a totally false dichotomy. The Constitution doesn’t “live” nor can it be dead. It is a foundational document from which all other laws flow. Either the Constitution rules, or it is just another law subject to the will of temporary majorities and willful judges. I don’t choose to build my legal house on a living foundation. I want solid concrete which can support an entire house of laws which enhance ordered liberty.
December 20, 2009, 4:01 amAndrew Frechtling says:
Dan Hamilton and his respondents address the Second Amendment,but miss the point that the Fourteenth is the relevant one here.
The historical circumstances surrounding the adoption of the 14th are well-known. The private ownership of firearms by freed slaves and others for protection against attacks by local govenrments and extralegal groups operating with tacit govenrment support (like the Klan)was one of the P or I’s that the 14th was intended to protect. I believe you can make a good DP argument that states’ efforts to deprive certain categories of people the RKBA also fails any DP test.
That’s a seef-defense issue, not a revolution issue. The relevant historical background is not the need for a militia circa 1790, but the right to self-defense circa 1865.
December 20, 2009, 6:24 amHankmeister says:
You know, if the liberal version of the Constitution being a “living document” was applied to the First Amendment the way they dishonestly apply it to the Second Amendment, the only free speech we’d have in their AmeriKa would be that free speech from government recognized media, lobby groups, and other corporate speech organizations, right? No more individual free speech. Think about it.
There’s two things I despise about the intellectually dishonesty of liberal humanists with respect to the Constitution. One, liberals are always inventing new “rights” like, the right to be gay, the right to murder unborn babies, the right to fill-in-the-latest-moral-license-equals-liberty schtick. So, on the one hand they recognize all these “penumbral rights” not expressly enumerated in the Bill of Rights while refusing to acknowledge that our “rights are a gift from God” (Thomas Jefferson no less!) and therefore those unalienable rights (the right of self-defense is one of the rights, btw) need not be enumerated to be acted upon by individuals. But on the other hand when it comes to an expressly enumerated right like the right to bear the smallarm of ones choice, they seek to violate that right by redefining it away. BTW, the Second Amendment clearly limits itself to smallarms. So the “argument” liberal use to try and undermine that view like, “Oh, so you can own nuclear weapons and artillery, eh?” is nothing more than juvenile legal canards which is simply a sign of intellectual desperation on their part when they’ve run out of legitimate arguments.
Second, liberals refuse to see the obvious. The first eight of ten amendments to the Constitution (which shouldn’t have been necessary in the first place some founders argued if the State would confine itself only to its specified, limited powers as enumerated in the Constitution itself!) all contain the phrase, “The Right of the People.” The Ninth Amendment deals with those powers not enumerated for the State to be in the hands of The People, and the Tenth Amendment deals with those powers not enumerated for the federal government to be in the hands of the individual and several states.
So, what further proof do we need that free speech, the bearing of arms, the right to remain silent, the right not to have to harbor troops in ones home, etc, are INDIVIDUAL rights? Do liberals need this concept to be written in neon lights? Pahlease!
Now the intellectual dishonesty is such among “living document” liberals that they selectively read “the right of the People” in the First Amendment as clearly denoting an individual right to free speech, yet see “the right of the People” of the second Amendment as being a “collective right” whereby it only points the national guard, the military, blah blah blah. Such inconsistencies are typically inherent in liberal thought because of the layers of cognitive dissonance they have to engage in to stumble their way through constitutional law.
BTW, we need to start hammering home the historical truth that the term “militia” in the Second Amendment referred to the unorganized militia, the whole of The People who kept and bore arms! If the founders had meant something akin to the national guard, they would have said “state militia” or “select militia” – both terms were in very common useage in those days. Any honest historian will tell you such was so. Btw, I majored in American history and ancient civilizations at a major Southwest conference Division 1 school.
The “militia” was understood to be composed of individual Minutemen, (remember them?) who could be called upon as the last resort for the defense of a community or their state from internal and external armed threats. The Second Amendment also does not say this collection of individuals – the “militia” – shall be state-regulated but rather shall be “well-regulated”. The term also had a historical significance in that a well-regulated militia was one composed of individuals who kept a good supply of shot and powder and a rifle/pistol/shotgun in good working order – hence, well-regulated. Doh! The 20th Century mind automatically defaults to the state-regulated mode when it encounters anything about regulations, right? So the dumkoffen liberals will invariably read the term “well-regulated” to mean state=regulated. Shame on them for their own self-imposed idiocies.
These are the kinds of ahistorical misrepresentations we originalists have to deal with ad nauseam. Whether it’s willful, ideological ignorance or not is yet to be decided though I tend to lean toward the former since this information has been out there as long as I’ve argued the Second Amendment in the public domain the last forty years or so!
December 20, 2009, 6:29 amajacksonian says:
One of the interesting bits of history brought up during the Heller discussions was just what the ‘right to keep and bear arms’ meant in Britain under common law. Keeping was an exercise of the individual and unlimited on his own property. Bearing was an exercise of carrying arms of which an individual may use on their own. The distinction happens at crew-served arms which an individual may keep, but who could face restriction on carrying. Thus a musket, saber or other individual oriented weapon for keeping and bearing was covered, while such a thing as a cannon, being a crew-served piece of arms for both conveyance and use, may be used on one’s own property but have restrictions for common use. For a maritime Nation with much waterfront property and the depredation of pirates to be considered, this meant that those able to procure such devices had them as an added defense against piracy, above and beyond what a town or county could muster.
If we had that sort of system in place then individual weapons designed to be carried by an individual would be in the ‘keep and bear’ category, while crew-served weapons would not. Hand cannons, later shotguns, would be considered the man portable device and in the ‘keep and bear’ category, while one-pounder cannons would fall more towards the crew served concept. Since those times we have created far more man portable weapons with greater capability, and what would once serve as an easy definition for crew vs individual has rapidly moved to devolving more capability on to the individual as the battlefield, itself, has gotten more complex and dangerous. Criminal elements that could once be confronted with the man portable rifle, carbine, or revolver, now can acquire inexpensive automatic weapons and body armor and be beyond even moderate power carbines and semi-automic pistols, although size of round does matter. This is before considering the use of arms in the militia, but only for personal safety and protection, yet a modern shoot-out in LA demonstrated that criminals with machineguns (fully automatic carbines) and body armor can only be confronted by exhaustion and extremely careful aim… and then only after police had called on local gun shops to get any large caliber arms above and beyond normal police use.
If a ‘living constitution’ does not confront modern threats, then we will be dead because of it. The right to defend oneself as a civil matter is sacrosanct and self-evident: we are born with it, it is necessary for the defense of our property, and the individual does NOT yield the positive liberty of self-defense to the State, only the negative liberty of warfare that becomes Public War. Any ‘living constitution’ that does not secure our in-born, positive liberty is then an exercise in tyranny to give the State that which it does not warrant under civil execution and is rightly called tyrannical when done. When the aim of a ‘living constitution’ is to undermine our positive liberties, then it is no friend of the individual nor the people nor the Nation as it is an enemy of essential civil liberty that cannot be alienated from the individual.
December 20, 2009, 7:51 amBrett Bellmore says:
Seems to me only fair to steal “living Constitution”, given that there’s been a serious effort on the part of the living constitutionalists to steal “originalism”; See the faux ‘originalism’ of Jack Balkiin.
But I do prefer to refer to ‘living’ constitutionalism as “undead” constitutionalism.
December 20, 2009, 7:53 amDean says:
“Guy says:
“Cornellian: Now if they’d just stop overlooking the 9th and 10th amendments, and of course the critical 3rd amendment, then we’d have a full set.
“Incorporate the 10th Amendment? I’ll have to think to figure out what would constitute a state violation of the 10th Amendment, pretty confusing.”
I don’t think Guy was talking about incorporation, just about how the federal government “overlooks” the 10th amendment. The 10th amendment is being violated every day, but not by the states.
December 20, 2009, 8:17 amlgm says:
There was a post recently on why law is hard. The comment thread turned to ways law differs from science. One difference that this post makes plain is that people do not trust lawyers. (“Why are lawyers better than rats in lab experiments? There are some things rats just won’t do.”) The second amendment clearly says that the purpose of gun ownership is to facilitate “well regulated militias”. This thread says that those are for crime prevention and common defense. Now that we have police and a standing military, public gun ownership is unnecessary. Let’s get rid of it, or at least make sure it’s “well regulated”.
December 20, 2009, 9:01 amBrett Bellmore says:
Now that the government has a publishing outfit in Pueblo, Colorado, we don’t need freedom of the press, either. Right?
December 20, 2009, 10:03 amMikee says:
Igm, the 2nd does not say that “the purpose of gun ownership is to facilitate “well regulated militias”" as you claim. Rather, it states, “A well regulated Militia, being necessary to the security of a free State…” which is a simple statement of fact. That a militia is comprised of free individuals providing their own arms is left unstated in your comment, which rather misses the whole point of the second part of the 2nd Amendment, “the right of the people to keep and bear arms, shall not be infringed.”
And I can’t carry a policeman in my holster, they are too heavy.
December 20, 2009, 10:05 amDavid Starr says:
“From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense.”
December 20, 2009, 10:14 amThis is the key idea. The law is what the people believe it to be. People obey the law because they believe it is the right thing to do. People want to do the right thing. Enforcement can deal with the occasional lawbreaker, but is overwhelmed when the general public decides to disobey a law they don’t believe in. For the country to be governable, the written law, and the judge made law, has to be in accordance with the fundamental beliefs of the people. When legislatures or judges make law that violates people’s belief, bad things happen, starting with civil disobedience and shading up into revolution. A democracy cannot be ruled by decree.
Arguments about why the people want to keep and bear arms (self defense, hunting, what have you) are irrelevant. It doesn’t matter why the people believe as they do, what matters is that they do believe, and that belief cannot be altered by legislative or judicial fiat.
Heller was a good step in the direction of bringing the judge made law into accordance with the fundamental beliefs of the people. This makes Heller a good decision, it makes the country more governable, it increases respect for the law.
Chris Watson says:
I think IGM’s comment decries a degree of gentle naitivite and an erroneous assumption that private ownership is bad for the public weal and I would challenge that private ownership of guns is *exactly* why we don’t have the same issues with privacy, censorship, and crime that the UK and Australia have.
We see since that in spite of Britain and Australia banning all guns – and now knives, box cutters, and sporks with tines over 1″ long – that crime has actually gone *up*. In the UK, the issuance of ASBO orders (effectively ‘bad dog!’and a swat across the nose) has done nothing except let the animals run loose, leave good people helpless, expand the goverment, and bring about an Orwellian Pantopticon and a ‘Nanny State’. In Australia the rise of an Internet ‘Digital Curtain’ is on the way and there is no recourse for the voter except to ‘go along’ with whatever the political elite decry as good governance. IGM can hope that guns will all go away, we will sing ‘Kumbaya’ by the flower garden in the local park, and that no one will try to mug us once we leave after dark but it implies that we have a government who will be all pervasive, all knowing, and all intrusive. I, for one, find the thought of *that* kind of government utterly and clearly wrong.
I posit that private gun ownership in the United States is a way to keep the government honest; if the people have more arms than the government (and in the US we do) then the government can be – in extremis – compelled to follow the wishes of the people. I think the framers desire to ensure that the possibility for armed insurrection was enshrined in the Constitution was deliberate; they were well aware of the ability of a elitist, runaway goverment to crush dissent. For those who forget history, the Battle of Concord was started over an attempt by the British to seize the arms and ammunition of the populace. Our own culture as Americans has, is, and will always be defined by this one event.
December 20, 2009, 10:23 amJ. Odegaard says:
at:
http://maverickphilosopher.typepad.com/maverick_philosopher/alcohol-tobacco-and-firearms/
I find this:
Posted by Bill Vallicella on Tuesday, November 10, 2009 at 11:59 AM in Alcohol, Tobacco, and Firearms, Rand, Ayn | Permalink | TrackBack (0)
“Deriving Gun Rights From the Right to Life
I take the view that some rights are logically antecedent to anything of a conventional nature such as a group decision or a constitution. Thus the right to life is not conferred by any constitution, but recognized and protected by well-crafted ones. In simple terms, you don’t have the right to life because some people say you do; they correctly say you do because you have this right quite apart from anything they say. The right to life is a natural right. It is logically antecedent to anything of a conventional nature such as the positive law.
Continue reading “Deriving Gun Rights From the Right to Life” »”
December 20, 2009, 10:38 amChris Travers says:
lgm:
Unlike many folks here I don’t have a major objection in basic principle to your statement, but don’t you think it would be the end of our rule of law if we just ignored the parts of the Constitution we didn’t like?
(I was against the renewal of the assault weapons ban because of articles suggesting the law was only enforced against convicted felons and others who were understood not to have any real standing on 2nd Amendment issues. I felt then that such a law was a real affront to our Constitutional system.)
If you want to see private gun ownership eliminated there is a clear path here and that is the Constitutional Amendment process. Don’t like the Second Amendment? Start a movement to repeal it. I don’t think it will get very far, but you never know.
December 20, 2009, 11:34 amGuy says:
I would argue the liberal activist judges on the Warren Court are exactly why we don’t have those first two issues, since they virtually invented the Constitutional basis for them, but who needs knowledge of legal history when we can make conclusory statements that support our prejudices?
December 20, 2009, 1:12 pmHankmeister says:
I’m in complete agreement with ajacksonian with respect to “crew served” armaments. I believe its significant that the Second Amendment speaks expressly to the the historicity of the concept of individuals having an unalienable right to man-portable small arms, and frankly I believe that includes so-called “machine guns” or select fire assault rifles (the Swiss have a better concept of our Second Amendment than liberals do) since the Constitutional was never construed to be limited by technological advances in all the arts whether it be agriculture and interstate commerce or the art of weaponry.
Implicit in the Second Amendment, and admittedly implicit, is the concept that though an American militia man can keep and bear the smallarm of his choice during his daily routine without interference from the State (assuming he is of sound mind and a law-abiding citizen, that is), whatever armament he may possess if it be a cannon, bazooka, or any other man portable destructive device would be left on his property or possibly housed by the community itself. But in the final analysis, the important issue is recognizing what the founders originally meant by the term “militia” and the phrase “to keep and bear arms”.
Liberals and gun-grabbers get it wrong time and time again whereas we constitutional originalists have been right all along … all 220 years worth.
December 20, 2009, 2:48 pmHoward Veit says:
1. Let us suppose that the Indians on our borders had been armed with heavy artillery and tanks would the right to bear bazookas be enshrined in our Constitution? Atomic weapons?
December 20, 2009, 3:10 pm2. Suppose all the Indian tribes in the New World had been wiped out by disease, why would anyone care about a right to bear arms?
The 2nd amendment is a creature of both time and circumstance, it ain’t the pure holy whatever.
Tim says:
That was what I thought as soon as I read it as well.
I’m not sure if the author’s goal was to confuse, but he did so quite effectively.
December 20, 2009, 4:46 pmChris Travers says:
Would you say that the second amendment protects the right of US citizens to own one-man portable nuclear demolition munitions (a.k.a. backpack nukes)?
Or would the very compelling interest in keeping nuclear weapons out of the hands of terrorists trump the second amendment in this case?
If the latter, why would the analysis be different for an automatic assault rifle?
December 20, 2009, 5:11 pmJ. Aldridge says:
I don’t think the history of the adoption of the 14A is well known. I think the courts history of romancing it is what is well known. A gun would been of little use to a free black man against attack by the klan. The complaint was blacks were not allowed to form armed militias for their public defense as whites were allowed in places like Mississippi. When blacks could legally form black militias in SC it was then agreed in congress their right to bear arms had been restored.
December 20, 2009, 5:38 pmDavid Scott says:
Although, I personally am so far to the left that even the democrats appear to me to be “right-wing,” I consider myself to be a strict constitutionalist. It is my opinion that since its inception there has been an organized and systematic assault by the conservatives in the United States (and in the other industrialized nations) on the civil liberties written into the US Constitution. The “War on Drugs”; “War on Terror”; “War on Communism” and a host of other wars waged by the right wing are really nothing more than a War on People–an excuse to erode civil rights to the point of non-existence. I invite you to my website devoted to raising awareness on this puritan attack on freedom: http://pltcldscsn.blogspot.com/
December 20, 2009, 6:01 pmHankmeister says:
Chris, you’ve fallen right into the trap of false equivalences. Clearly nuclear weapons are entirely different class of weapons than say a Springfield Armory XD .45 ACP or even one of those eeeeeevil assualt rifles (btw, do you even know what a real assault rifle is?).
The Second Amendment guarantees the right to keep and bear arms, not nuclear armament. I was merely giving a theoretical circumstance that can be argued from a penumbral right aspect, however, in so doing it didn’t undermine the bedrock principle of individual citizens constituting the militia to which the Second Amendment was referring and those individual citizens have the unalienable right to “keep and bear arms.” Unfortunatley you are barking up a tree of your own making. Your query borders on the intellectually dishonest by making a false equivalence between “assault rifles” and “man portable nuclear munitions” (sic)which, in the final analysis, is absolutely irrelevant to that which is clearly stated in the Second Amendment – militia = individual minutemen … arms = man portable smallarms.
I tire of those time worn canards about nuclear weapons/arms which we originalists have to bat down every few years. As to the terrorist angle, it’s no more relevant than you possibly postulating at a later date the terrorist use of .22 pistols (a weapon of assassination according to some libs) somehow should empower constitutional government to rid the law abiding American citizenry of said firearm. On its face the question is thus irrelevant anyway you want to look at it from an HONEST, HISTORICAL, AND CONSTITUTIONAL POV. Terrorists also use knives, knives are also weapons, by the “logic” you propose our nanny government should outlaw knives.
“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” Benjamin Franklin in his 1759, “An Historical Review of the Constitution and Government of Pennsylvania.”
December 20, 2009, 6:42 pmHankmeister says:
Mr. Scott, your post reveals you to be little more than a barking moonbat tossing about cheap ad hominems and misrepresenting the complexities of national issues that you, in all your vaunted nuance, refuse to exercise that same nuance in understanding the traditional conservative viewpoint. You are the proverbial bull in a china closet and I have not intention of wasting my time swimming the sewers of your blogsite.
As I’ve stated with regard to the war on terrorism at an earlier time, how is it that counter-cultural liberals can spend so much time “trying to understand” and give the benefit of the doubt to devout Islamic fundamentalist/terrorist yet do not extend the same courtesy to the men and women who, in their own imperfect way, are serving this country in a constitutional capacity to keep it safe and secure from threats abroad?
December 20, 2009, 6:50 pmChris Travers says:
Hankmeister:
I made no such argument. I asked you three questions and asked you to make an argument.
In my own opinion, stinger missiles and bazookas (the weapon, not the musical instrument) would be entirely outside the scope of the second amendment as well because of our great reliance on civil air travel and the dangers in general that any sort of SAM or assault rocket would pose to this part of our infrastructure.
At the same time, assault rifles, submachine guns, military-type shotguns, sidearms, etc. really SHOULD be protected in this case. I would thus limit the second amendment to “typical small arms used by light infantry soldiers.” That would draw a line between rockets capable of anti-aircraft functions, demolition munitions generally (typically used by specialists), etc.
I brought up one-man-portable nuclear demolition munitions because the distinction of man-portable would seem to include some low-yield nuclear weapons if not further qualified. You said, to your credit, small arms which arguably could be interpreted to exclude shoulder-launched SAM units, demolition munitions, etc. Certainly if a cannon or a bazooka is a small arm, then a backpack nuke is too. That is all I was really saying.
December 20, 2009, 7:36 pmChris Travers says:
(though I suppose bazookas– the musical instrument, not the weapon, might be also outside the scope of the second amendment yet protected under the first)
December 20, 2009, 10:09 pmCarl from Chicago says:
So the below from Heller gives you pause?
Held:
1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home.
Me too, because it is woefully incomplete. But consider that “self-defense” is among the lawful purposes for the second amendment’s protection of the RKBA. Consider the right to arms fundamental because it arises from the natural right of self-preservation (self-preservation is a law of nature … even among the so-called “altruistic” social insects). Now … compare and contrast “self-defense within the home” from other situations demanding defense … defense of self outside the home, defense of spouse or children within and outside the home, defense of neighborhood and community, defense of state and nation from tyrants foreign or domestic, and finally, the defense of justice and basic human rights worldwide (from tyrants large and small).
I don’t think one must argue whether the “core purpose” of the second amendment is self-defense within the home” or a defense from tyranny. I think that one naturally flows from the other. The inability to defend one’s self in the home erodes defense outside the home, erodes the safety of the community, and erodes the ability to a more collective defense against tyranny. So too, the inability to collectively defend against tyranny erodes the safety of the community, and erodes the safety of self and family inside the home.
I presume some of these things will be articulated better in the future. For example … remember McDonald before the 7th circuit? Easterbrook penned the unanimous decision … and stated something remarkable. He said:
Suppose a state were to decide that people cornered in
their homes must surrender rather than fight back—in
other words, that burglars should be deterred by the
criminal law rather than self help. That decision would
imply that no one is entitled to keep a handgun at home for
self-defense, because self-defense would itself be a crime,
and Heller concluded that the second amendment protects
only the interests of law-abiding citizens. … Our hypothetical
is not as farfetched as it sounds.
That statement is RIPE for redress by the Supreme Court … almost as if set up purposely by Easterbrook …
December 21, 2009, 9:11 amGordo says:
And now that the Supreme Court has indeed ruled that the 2nd amendment confers an individual right, and will soon incorporate that right against the states perhaps we can get over the paranoia about gun registration and get a meaningful raft of state laws passed that requires registration and training in the use of firearms just as a raft of state laws does the same for automobiles.
December 21, 2009, 11:19 amDan Hamilton says:
Sorry it is a revolution issue. The local government was not supporting their rights, was not enforcing the laws, etc. Yes they were protecting themselves but they were fighting a local government. The revolution doesn’t have to be against the Federal Government. The People need protection from local govenment also.
Semiautos aren’t required for self-defense. Revolvers are fine, bolt, lever, and pump actions (and maybe not all of them)are all that are required for rifles and shotguns. Military calibers are not required for self-defense. Having more then 50 rounds in any caliber is not required for self-defence.
Just think about what laws could be passed if the 2ed is ONLY about self-defense.
December 21, 2009, 1:01 pmDan Hamilton says:
Would you people stop with the straw man of nuclear weapons!
The 2ed is about the RIGHT TO REVOLUTION. Only arms usefull for revolution are protected. NBC weapons are NOT usefull for revolution. Nobody thinks they are! Terrorism is NOT part of revolution.
The Constitution assumes private warships (Letters of Marque). Private cannon were COMMON at the time of the Constitution. Everything from machine pistols to armed fighters (Jet and prop) are privatly owned in the US (NFA, $200 unconstitutional tax). So we are not talking about stuff that doesn’t exist.
So stop with the dishonest talk about NBC weapons.
December 21, 2009, 1:24 pmDavid Scott says:
I agree with Dan Hamilton.
In my opinion the most important reason for the Second Amendment is to make sure that the State and its various branches of military and law enforcement aren’t the only people with guns, because the incontestable might of the State will eventually lead to a totalitarian government.
The primary right here is not national or even self defense; it is the people’s insurance that the government will not abuse its lawmaking powers.
December 21, 2009, 2:43 pmChris Travers says:
I would think any weapon useful on the battlefield would be useful for revolution. Call me old fashioned though.
In particular, I am asking about things like SADMs which were designed to be useful for disrupting enemy communication infrastructure. If there is a right to fighter jets, why not a right to own SADM’s? They have legitimate military purpose, right?
I am asking for a reasoned argument here, not just a “I don’t want to deal with it” type of response. If one were in a revolution, I would think that any weapon which could possibly be useful in area denial (land mines and chemical weapons), demolition of infrastructure and disruption of communications (SADM’s and the like), etc. These sorts of micronukes have yields roughly comparable to the GBU-43 at their small end and don’t generally go much more than 100x that at the high end.
If you are assuming private warships and fighter craft, I am assuming you think the GBU-43 would be protected as well. If so why not a nuclear demolition munition of comparable yield?
I am not talking about strategic nukes here. I am asking about extremely low yield weapons designed by our armed forces specifically for military tasks, not MAD.
December 21, 2009, 3:12 pmDan Hamilton says:
Chris, there is a difference with NBC weapons. If you want to kill lots of civilians, they are fine. You want to just kill politians, they don’t work to well. Revolution is about changing the government, not killing civilians.
Everything but NBC (ok some chemical) is already out there as NFA weapons. But the NFA is unconstitutional, you can’t tax a right. You want to remove the tax on NFA weapons and force all 50 states to allow them, then fine.
If you can afford it or build it you can have it now if you live in the right state and are willing to pay the tax. This should be covered under the 2ed, not jut allowed by the government.
OK I give up. If you want to make a fool out of yourself talking about backpack nukes and other NBC stupidity go ahead. Any serious person will just laugh and ignore you. I should have.
December 21, 2009, 6:23 pmChris Travers says:
That is where you are gong wrt NBC warfare because you are thinking of STRATEGIC weapons. However, while I am hard pressed to think of any biological weapons that would be tactically useful (biological weapons have some inherent problems due to being generally contagious and also ineffective at producing mass casualties to the point where the only real use is against civilians), the fact is that chemical weapons could be used to a number of important effects. For example, as with land mines, they can use to blunt an assault but the effect is different. The NBC suits tend to be very hot, so you can essentially induce some exhaustion by forcing an enemy to attack you with NBC suits on.
The weapons don’t have to be used in heavily populated areas, and since most chemical weapons are heavier than air, they can be used to enhance some terrain advantages in fortified positions.
The US Army fielded backpack nukes not for killing civilians but for the purpose of taking out key supply and communications infrastructure in the event of a Soviet assault on Western Europe. A secondary goal was to slow down a Soviet assault by requiring NBC precautions along parts of the attack routes. The backpack nuke is little different from the smallest of the US Army’s nuclear artillery shells. While they were fielded, they were never used (presumably tactical constraints would make small tactical nukes delivered via bomber more helpful).
I would certainly consider the ability of EMP and the like to take out communications infrastructure to be a legitimate use of a nuclear weapon, wouldn’t you?
However, let’s take tactical nukes off the table for a moment and look at conventional alternatives.
Is ownership of a MOAB protected in your view? It has roughly the same yield as a small tactical nuke but is conventional ordinence. What about a Russian FOAB, which is a thermobaric bomb and which the Russia says they are going to use as a substitute for tactical nukes in the future. Official statements there say the explosive yield is about 44 tons, and the blast radius is about 300 yards (roughly the the same 100% kill radius of a small tactical nuke).
Would, in your view, large conventional and thermobaric munitions be protected? Or in your view, are NBC weapons just too “icky” to be protected?
December 21, 2009, 10:09 pmJ. Aldridge says:
No it isn’t. What was the #1 thing most dreaded? It was a standing army. Since there was going to be no trained armies maintained within the states they instead had to rely on themselves for public defense against insurrections, invasions, riots, Indians, etc.
December 22, 2009, 3:11 amThe true meaning of the 2A is the right of the people to be free from a standing army.
Kharn says:
And why did they fear a standing army? Because King George used his for tyranny. The Constitution says that the federal government has the power to raise and support armies, but appropriations would only be valid for two years. The 2A isnt about preventing a standing army, it is about ensuring the people have the tools and ability to rise up against an oppressive force, regardless of if it were a standing army, an illegitimate President, or the Carebears.
December 22, 2009, 10:27 amChris Travers says:
I see J. Aldridge has read Washington’s Farewell Address.
Kharn:
One way to interpret the appropriations limits on armies is to prevent long-term standing armies as our main means of defence. I actually side with J. Aldridge here as rare as such an event might be.
December 22, 2009, 11:11 am