On Thursday, Dec. 17, Justice Ginsburg spoke at a luncheon of the Harvard Club of Washington, D.C. I was not present at the luncheon, but I have heard, third-hand, that she spoke on the value of dissenting opinions. She said that sometimes a dissent can become the majority of a “future, wiser court.” As an example, she pointed to the dissent in District of Columbia v. Heller.
If any VC readers attended the luncheon, any details or clarifications would be welcome.
redc1c4 says:
“future, wiser court” must mean one able to ignore plain english.....
and people wonder why there’s been such a massive ongoing bump in sales of guns, ammo, and accessories. Molon Labe, granny.
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December 20, 2009, 1:08 pmDjDiverDan says:
To Justice Ginsberg, a “future, wiser Court” is one willing to proclaim “We know better than those idiots that wrote and adopted the Constitution.”
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December 20, 2009, 1:19 pmOff Kilter says:
A scary thought: She was planting an idea in the public consciousness that works against overruling Slaughterhouse...
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December 20, 2009, 1:22 pmDangerMouse says:
Gee, if she does that there’ll be “back alley” gun sales, and “back alley” home defense, and “back alley” self-defense. Because we know the court hates “back alley” stuff.
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December 20, 2009, 1:30 pmJohnO says:
What about people who’ve ordered their lives around the individual right to bear arms, in reliance on Heller? What about how the public views the legitimacy of the Supreme Court?
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December 20, 2009, 1:39 pmMarshall Plan says:
If that’s the case, thank God that Justices Scalia and Thomas write so many dissents.
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December 20, 2009, 1:44 pmMartinned says:
As opposed to those wise justices currently on the court who ignored the part about a militia being necessary to the security of a free state?
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December 20, 2009, 1:47 pmSoronel Haetir says:
I’d prefer they not ignore that bit but it leads to results scary to government like Miller so it’s not going to happen. I would love it if courts were to honestly implement Miller.
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December 20, 2009, 1:51 pmDangerMouse says:
Maybe she was really referring to Roe? Someone in the audience should’ve asked her that. “Yo, Judge-lady: where’s the right to murder your baby in dis here Cons-tit-tution thingy?”
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December 20, 2009, 1:51 pmjimM47 says:
Seems like we can guess what her vote in McDonald will be, then.
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December 20, 2009, 1:54 pmtarheel says:
How is this surprising? Every dissent ever written was written with the hope that it would someday become the majority view. Rehnquist planted nuggets in dissents for 20 years before the Court shifted his way. I daresay Scalia and Thomas have given speeches expressing the view/hope that Roe will be overturned when the Court comes to its senses.
Let me know when the man bites the dog.
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December 20, 2009, 1:54 pmAndrew says:
I agree with tarheel. No need for a big fuss here. Now, if Justice Ginsburg were to start euthanizing the Heller majority, then that would be real news (particularly if she does so using her right to keep and bear arms).
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December 20, 2009, 2:14 pmAssistant Village Idiot says:
tarheel, point taken, but the citing of a specific decision at least suggests that the man is looking at dog recipes.
In our noble efforts to reduce discussions to the abstract and logical, we overlook the sad fact that individuals seldom make their decisions on that basis, including Supreme Court justices. We make our decisions, then go looking for rationalizations to prove to others — as well as ourselves — that we have been neutral, logical, and evenhanded.
Some of us do this better than others, but none of us do it flawlessly. Second Amendment rights supporters will of course immediately suspect that Justice Ginsburg has made her decision on Heller decades before it was filed and merely seeks for supporting evidence. Perhaps so, but evidence for such things can be subtle to tease out.
Fortunately, however, online discussions seldom require such subtlety to discern motive. Martinned, for example, overlooks the important piece of the Heller decision in which even the dissenting justices recognised an individual right to bear arms. We can anticipate him reaching an unchanged conclusion regardless of the evidence put before him.
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December 20, 2009, 2:22 pmDG says:
Whats disappointing is that justices don’t make decisions on the merits of a case or what the constitution says — they just go with their own political opinion. Both sides of the court seem to do this more and more as time goes on.
I’d much prefer a principled anti-gun decision from Thomas or a principled pro-life decision from Ginsburg (even though I am pro-choice and pro-gun) than the current politicized gymnastics and pretzel-bending.
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December 20, 2009, 2:25 pmDave N. says:
I remember my law school Con. Law class, and that Plessy v. Ferguson supported the concept of “separate but equal”. The NAACP Legal Defense Fund realized that somehow Plessy had to be overruled, but that an obvious frontal assault might not work.
As a result, theuir strategy was, over the course of several decades, to undermine Plessy through a series of other cases that challenged segregation in other contexts (the last being Sweatt v. Painter, which found Texas’ policy of having separate law schools based on race to be unconstitutional).
In any event, by the time Brown v. Board of Education was decided, the pillars supporting Plessy had been substantially undermined in the intervening 48 years through a deliberate litigation strategy.
The Plessy to Brown process has the salutory effect of cases not being overruled seemingly by whim or caprice, based on little more than a change in Court membership.
To me, it is not the merits of the new versus old rule, but rather having consistency in the law. The Supreme Court should not overrule prior cases (whether it be Crawford v. Washington overruling Ohio v. Roberts or Lawrence v. Texas overruling Bowers v. Hardwick) without good reason — and one justice merely replacing another is not only NOT a good reason, it is a very BAD reason.
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December 20, 2009, 2:26 pmNate says:
Great news. Heller is a travesty. What a poorly reasoned decision with such poor use and distortion of history. Let’s all hope.
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December 20, 2009, 2:45 pmAndrew says:
“[O]ne justice merely replacing another is not only NOT a good reason, it is a very BAD reason.”
No justices have ever written an opinion saying that they’re overturning a precedent “because we’re in charge now and those old losers are dead.” If a justice sincerely believes that the Constitution says something, then the justice should vote accordingly to overturn a precedent, ESPECIALLY if the justice believes that the precedent was decided without seriously and fully considering what the Constitution says. Being gradually incremental may make the Court look better, but honesty is more important than window-dressing, IMHO. And if a precedent that is being overturned was not arrived at in a gradual incremental way, why should its reversal be gradual and incremental?
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December 20, 2009, 2:52 pmOrin Kerr says:
Off Kilter writes:
I don’t think a lunch speech at a restaurant for a college alumni group on the general topic of dissents — a topic she has talked about before — is the place to plant an idea in the public consciousness. Plus, I don’t think the public consciousness includes a view on overruling the Slaughterhouse cases.
If the report is accurate, though, it raises the possibility that the remaining dissenters in Heller may stick to their Heller dissent and conclude that the the right recognized in Heller doesn’t doesn’t apply to the states because Heller is wrong. In that case, the case presumably boils down to Kennedy and Sotomayor.
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December 20, 2009, 2:56 pmBlue says:
It’s the immortal truth of Con Law: conservative decisions are provisional while liberal decisions are eternal.
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December 20, 2009, 2:58 pmJRL says:
Exactly. Just as every dissent author thinks himself “wiser” than the majority in any given case. This is a newsworthy as “Bin Laden determined to attack inside the U.S.”
You don’t say?
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December 20, 2009, 3:03 pmAnderson says:
The Supreme Court should not overrule prior cases (whether it be Crawford v. Washington overruling Ohio v. Roberts or Lawrence v. Texas overruling Bowers v. Hardwick) without good reason
Lawrence at least was one of those instances. The majority’s reasoning in Bowers was laughably poor.
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December 20, 2009, 3:06 pmMichaelnotMike says:
Maybe she is expecting more Latina women to join the court?
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December 20, 2009, 3:19 pmConstantin says:
This is very much true.
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December 20, 2009, 3:25 pmBrett Bellmore says:
Granted. It’s just difficult to believe she sincerely believes the Constitution supports her position. As opposed to sincerely believing that her position is right enough that the Constitution shouldn’t stand against it.
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December 20, 2009, 3:35 pmSunTzu's Nephew says:
Right next to the ones that fail to understand that the militia mentioned is all citizens?
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December 20, 2009, 3:46 pmDjDiverDan says:
You thought the reasoning in Lawrence was better? I’m no fan of anti-sodomy laws, and frankly, from a purely philosophical point of view, I like the result in Lawrence (I’d like it even better if any of the Justices were willing to take its reasoning to its logical conclusion, and strike down a whole raft of silly morality laws like those prohibiting prostitution, polygamy and polyandry, and like those in Texas and Georgia outlawing the sale of sex toys, but that ain’t gonna happen), but the majority reasoning of Lawrence amounted to nothing more than “We think the Constitution is maleable enough to adopt our own more enlightened and politically correct view of sexual morality, so we’re going to adopt it as the law.”
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December 20, 2009, 3:49 pmJHTRazor says:
Interpreted as, “Once we get some more liberals on the court, we will reverse the court’s ruling.”
While I believe the Heller ruling was correct, I don’t like the fact that the Supreme Court is now more about politics than it is about law or the constitution.
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December 20, 2009, 4:01 pmGlen says:
This proves once again that Justice Ginsburg sees the Supreme Court as just another co-equal political branch of government, and her role as just another advocate for partisan interest-group politics.
It’s a sad development.
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December 20, 2009, 4:05 pmG-Veg says:
“Lawrence at least was one of those instances. The majority’s reasoning in Bowers was laughably poor.”
Bowers was defective but Lawrence was pointless. As a practical matter, few states had sodomy laws on the books at all by the time Lawrence was decided.
What, pray tell, was the overarching benefit to the Court’s action in Lawrence? Why did they even grant it Cert?
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December 20, 2009, 4:36 pmTim says:
Now there’s some cynicism that I can agree with. :)
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December 20, 2009, 4:37 pmMartinned says:
On the contrary, the individual right part of Heller I am fine with. I’m not sure that I understand what a collective right is. And since SunTzu’s Nephew asked, I’m also fine with the RKBA being a right of all citizens. (Or at least all adult non-felons, etc.) My question simply concerns the idea that the 2nd amendment protects a right to keep and bear arms for self-defense. That last bit seems more than a bit detached from the clear text of the amendment. If one has to make self-defense a constitutional right, instead of “merely” a common law right, I’d find it more natural to put it in the 9th amendment.
(BTW, let’s not rehash the whole argument. My comment merely replied to redc1c4, who seemed to think that the dissent in Heller ignored the constitution’s “plain english” more than the majority did. Of course, whether the constitution is actually written in anything resembling “plain english” or, if not, whether we would want it to be, is a discussion for another day.)
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December 20, 2009, 4:39 pmChris Travers says:
Heller should be rendered largely irrelevant. The court erred in it, in interpreting past precedents, and in so doing, IMO, reduced gun ownership rights further than they had been in the past.
Now, the dissent’s position in Heller was worse.....
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December 20, 2009, 4:45 pmMark Field says:
The Founders certainly did not believe this. The very first Militia Act limited the militia to “each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted)...”
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December 20, 2009, 5:01 pmBC says:
So? The Founders authorized Congress to determine who is in the militia. In 1792 Congress’ view was considerably more constrained than it is today; see 10 U.S.C. 311.
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December 20, 2009, 5:13 pmAlan says:
Let’s call it the Stevens-Dworkin ratchet.
As for Bowers, I think that case was actually very well-reasoned. And I don’t understand how anyone can think that Lawrence was anything other than an intellectual trainwreck.
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December 20, 2009, 5:20 pmJ. Aldridge says:
Unfortunately there is no evidence the court ever becomes “wiser” as time passes.
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December 20, 2009, 5:25 pmAndrew says:
Agreed. The Second Amendment is pretty clear. The group whose right is protected (the “people”) is obviously bigger than the group recognized in the Amendment’s preamble (the “militia”). Ginsburg wouldn’t have written it that way, so she dislikes applying it that way.
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December 20, 2009, 5:29 pmSuperSkeptic says:
DJDiverDan, thank you for your comment, once again.
Unfortunately, there isn’t one justice on the Court* who doesn’t treat the court blatantly like a co-equal political branch. Like many of the things Hamilton assured us that turned out to be false, the idea of the Court as independent (and essential to the protection of individual rights), is (and has been for a loooong time) bunk. See The Federalist no. 78. http://www.constitution.org/fed/federa78.htm
As much as I dislike Ginsburg, no double-standards now.
*One could argue that Thomas honestly tries in a principled way not to ...
Martinned, you are so wrong and so right. The majority in Heller did not “ignore[] the part about a militia being necessary to the security of a free state[,]” they surely took the text into account; but they dismissed it (what Scalia referred to as “the prefatory clause”) because it was simply the motivating purpose for the individual right, not a single limitation of the availability of the right or a “condition” precedent to the exercise of the right. However, you are correct in that as for a general right to self-defense, it may make more sense to “find it ... in the 9th amendment.” But you are being too coy, because you know and I know that the 9th amendment is a dead-letter (in a political sense for the Court). So, to act as if the right that was necessary to find in the Constitution (the right to self-defense) should have been found in the 9th betrays your professed support for the right. The majority knew that too, which is why they found it in the 2nd, as we all know. See my point about the conservative justices and politics above.
At the end of the day, the Amendment that was intended to allow us to defend ourselves against governments (internal and external), now allows us to do so and defend against our criminal neighbors. It’s a win-win — unless, of course, like Ginsburg, you do not support either right...
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December 20, 2009, 5:30 pmKazinski says:
Martinned,
If you want to get an idea of what was meant by “a well regulated militia being necessary to the security of a free state” take a drive down the Rhine to Switzerland some weekend and take a look around.
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December 20, 2009, 5:33 pmChris Travers says:
10 USC 311 seems to be further limited by a more recent treaty.
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December 20, 2009, 5:36 pmMark N. says:
But doesn’t this come at the expense of further eroding any support for textualist or originalist treatments of the Constitution, when even Thomas and Scalia sign on to interpretations clearly based in neither the text nor the original understanding? I can surely be on board with the idea that the 2nd Amendment protects an individual right to bear arms, but I find it hard to believe that one could honestly, from the text and original meaning of the Amendment, conclude that it was intended to protect a right to use firearms in self-defense against criminal assault or burglary. The text of the amendment is clearly not directed against common crime, and neither is any of the material written by the founding fathers about it.
Such a right might of course still be desirable, and might even exist, but wherever it comes from, it isn’t the text or the original meaning of the 2nd amendment. If we’re going to be open to squinting and finding it there anyway, what principled difference keeps us from squinting and finding, say, a right to privacy elsewhere?
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December 20, 2009, 5:42 pmJustice Ginsburg: Supreme Court may eventually overrule Heller | Liberal Whoppers says:
[...] post: Justice Ginsburg: Supreme Court may eventually overrule Heller Share this [...]
Martinned says:
I’ve been there many times, and I can safely say it looks nothing like the US. (Fewer minarets, for one.)
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December 20, 2009, 6:04 pmCurious passerby says:
Ginsburg is a pitiful excuse for a justice. What’s the point of having a constitution if “smarter” justices can do whatever they think is smarter?
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December 20, 2009, 6:19 pmMark Field says:
That was precisely my point. The Constitution does not define who is in the militia, Congress does. The comment to which I responded suggested otherwise (though, in fairness, it didn’t expressly say so).
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December 20, 2009, 6:30 pmtherut says:
I pity the Justice. She had no concept of freedom and liberty. She shames the court and herself.
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December 20, 2009, 6:40 pmMick says:
She also thinks abortion is OK because it is useful as population control of “certain groups”.
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December 20, 2009, 6:41 pmTim says:
That’s actually not true. The phrase “well regulated militia” does not mean the same thing as the “organized militia” of the states or the national government. If there is an underlying purpose for the “well regulated militia,” it is surely an organization over which Congress has no authority at all. Furthermore, you will find no enumerated power in Article I that suggests that the militia is under the control of Congress unless it is activated into military service.
See Professor Nelson Lund’s work on this issue for clarification.
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December 20, 2009, 6:52 pmJohnny Mac says:
By that logic, since few states do not recognize an individual right to bear arms, Heller and McDonald are pointless. Unless of course you live in DC or Chicago or Boston, in which case it might well be of some (small) benefit...
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December 20, 2009, 6:59 pmSuperSkeptic says:
Mark N,
I agree that it does. But sadly it seems as if we are beyond that in our beloved republic. From Scalia and Thomas’s standpoint (more Scalia), there’s no reason to tie one hand behind your back while the other side pummels you with both hands. At this point, it’s all real-politik. This is why Ginsburg can talk the way she does, but why Scalia still tries to play the game. Its tough to play by the rules of the game — and still win — when everybody else is breaking them. The recent Scalia-Breyer debate on C-SPAN is apropos. (I suspect Scalia is not as worried about his “infidelities” (as Professor Barnett calls them) because he realizes that there is no way the justices could ever truly and completely divorce themselves from text (not that they haven’t come darn close — right up to that line). This is the “we are all originalists” part of the saying: “we are all originalists, we are all non-originalists.”)
I don’t think there is as big a distinction between self-defense from the criminal aggrandizements of the government and self-defense from the criminal aggrandizements of one’s neighbors. Both are criminal aggressions which require self-defense. I therefore think it is far more historically plausible to find it in the 2nd than you do. I don’t think the 2nd text needs to be “directed against” something in paticular (like “common crime” for example) any more than the freedom of speech needs to be “directed against” any one particular suppressive concern. The right need not be dependent upon the concern du jour. If the right is there, the right is there. This is the whole rationale underlying the dismissal of the argument that the prefatory clause is a condition precedent to the exercise of the right.
As for your point about privacy, I think privacy and self-defense could both quite plausibly be found in the 9th. Again, this would require intellectual honesty and independence, which the court lacks. But, yes, I also lament the lack of principled interpretation. It’s hard to see a way out of our current conundrum...
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December 20, 2009, 7:22 pmLarryA says:
Maybe Justice Ginsburg just doesn’t like the idea that the People can overrule the Supreme Court.
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December 20, 2009, 7:25 pmMark Field says:
This is all just blather. Congress in fact did define who was in the militia when it passed the Militia Act of 1792 (linked above).
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December 20, 2009, 7:28 pmrjs says:
I think it might be fairer to say that few states enforced their anti-sodomy laws. According to Lawrence, 13 states had anti-sodomy laws at the time of its decision. Lawrence stated, however, that there was “a pattern of nonenforcement.”
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December 20, 2009, 7:36 pmMark N. says:
I agree with that, but it seems Heller did need to find the right directed against something in particular. In answering why the 2nd amendment must necessarily protect handguns (as opposed to only protecting rifles, say), the Court relied almost entirely on an argument that handguns are useful for self-defense in the home against criminal home invasions. If the 2nd amendment just defends the RKBA, not the RKBA-for-defense-against-home-invasions, then that argument at least doesn’t work, and we need another one. (Not saying there isn’t another one, just that the one in Heller isn’t it.)
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December 20, 2009, 7:38 pmJ. Aldridge says:
Who are the militia? Robots? Why is there a 2A? Not because individual people should keep arms at home but because no one trusted a standing professionally trained army. Since there was no armies maintained within the states the people were left to the only option of maintaining armed militias for their self-defense.
The original constitution was rejected by many because of lack of protection against a standing army. With the 2A those objections were removed.
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December 20, 2009, 7:41 pmTweets that mention The Volokh Conspiracy » Blog Archive » Justice Ginsburg: Supreme Court may eventually overrule Heller -- Topsy.com says:
[...] This post was mentioned on Twitter by Rae MacGhillielaidir, Todd Inman and Eugene Volokh, Eugene Volokh. Eugene Volokh said: Justice Ginsburg: Supreme Court may eventually overrule Heller: On Thursday, Dec. 17, Justice Ginsburg spoke at.. http://bit.ly/8jXjUf [...]
Steve2 says:
Bowers was poorly reasoned because of an error in the opinion’s foundation: it framed things wrong by misidentifying the right at question.
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December 20, 2009, 8:04 pmSuperSkeptic says:
Ahh, but what you seek is an impossibility (politically). A pure textual amendment reading would be absolutist — just like the pure textual interpretation of the First. But we see how the 1st is riddled with exceptions. What you describe is a built-in exception of the same kind. It is the Brandenburg or Chaplinksy equivalent that had to be braided into the decision. You don’t think that they would have allowed us individually to carry rocket launchers or drive our own tanks? The court “need[ed] to find the right directed against something in particular[]” only to create some plausible, workable limitation.
But now you see why “its just line-drawing.” Hence why Ginsburg can sleep at night. For why is her line not proper or the best? Why should Nino’s be? And we’re right back at real-politik. Cunundrum indeed.
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December 20, 2009, 8:06 pmSuperSkeptic says:
Also, that whole question of what to protect against came up as an anciallary matter in defining what “arms” means.
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December 20, 2009, 8:21 pmRyan Waxx says:
I don’t want to hear even ONE liberal demand respect for any precedent after this, EVER.
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December 20, 2009, 8:23 pmGordon Langston says:
States themselves have certainly been forging ahead in quite the opposite direction that Ginsburg would have chosen. Shall issue CCW is now the law in 39 of the 50 states from a starting point of only 9 states in 1986. Has she chosen also not to notice?
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December 20, 2009, 8:32 pmG-Veg says:
To my mind, at issue in Lawrence should have been the practical significance of the “states as laboratories” model of jurisprudence. At the core of Bowers was the idea that traditional mores, as expressed through the Democratic process, should direct SCOTUS thinking on purely social questions. Lawrence strikes as the core of this idea by completely ignoring the social shift in the intervening years. The very fact that the 13 states retaining sodomy laws had become, by far, a minority suggests that the Court overstated the stakes and overreached in Lawrence.
Applying this principle to Heller is comparing apples and oranges.
Heller addresses a right specifically enumerated in the Constitution whereas Lawrence comes from the bastard thread of the “penumbra.” In Heller, the Court is dealing with interpreting the Constitution itself whereas, in Lawrence, it continued to meddle in social engineering — all the more tragic in that the states had established the clear direction of the political will by shedding sodomy laws during the years between Bowers and Lawrence.
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December 20, 2009, 8:32 pmAndrew says:
Whether the militia are robots or not, they are less numerous than “the people.”
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December 20, 2009, 8:35 pmjw says:
Here’s, a pretty fair explanation about the prefatory phrase in the Second Amendment.
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December 20, 2009, 8:44 pmTim says:
Congress’ choice to define who was a member of the organized militia has no bearing on the individual right of the people to keep and bear arms, or even who the “well-regulated” militia is, for that matter.
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December 20, 2009, 8:46 pmStormy Dragon says:
What distinguishes a ‘purely social question’ from other legal issues?
AKA, the Ninth Ammendment.
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December 20, 2009, 8:49 pmG-Veg says:
Stormy Dragon,
Difficult question... I am tempted to adopt that “you know it when you see it” mantra but I think the SCOTUS provides some hints.
Abortion is certainly one of them.
Compare, for example, Roe and Casey. We are clearly NOT talking about a fundamental right here. Why? Loving has never been softened. I am suggesting that rights grounded in the Constitution itself are less changeable, more durable. Thus, those rights “found” outside of the text are either social or political questions and that the Court asserts its will in these areas at its peril. When the Court is out of step with the political branches or, worse still, with the Majority, the decisions are, as was the case with Roe, questionable forays into “purely social questions.” I am suggesting that the Court’s unwillingness to hear such cases as those which allege gerrymandering along political lines represents a thorough understanding of this principle.
Lawrence is a poor decision, not because the outcome is “bad” as it relates to the actual parties but because it is an invalid exercise of “activism.”
“Activism” is, as far as I can see, valid only when it is grounded in the text or recognizes the thrust of the political discourse through the democratic process.
Applying this reasoning, Lawrence could have been valid if it had been written a decade or so before precisely because there were a larger minority of states enforcing sodomy laws. Lawrence is invalid precisely because it broke a cardinal rule of jurisprudence — that there be an actual controversy to resolve.
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December 20, 2009, 9:00 pmSuperSkeptic says:
Red-headed step-child?
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December 20, 2009, 9:02 pmG-Veg says:
SuperSkeptic,
No, “bastard.”
A “red-headed step-child” exists independent of the “parent.” A “bastard” is created out of whole cloth.
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December 20, 2009, 9:05 pmMark Field says:
Ok, this is getting downright silly. Let’s back up and start over.
The suggestion was made that there needs to be recognition of the right to self defense. I agree that there does; as far as I can tell, everyone in this thread agrees also.
martinned made the legitimate point that the militia clause is a poor textual basis for the right of self defense. The response was that the militia included “everybody”. This is just plain false. No one believes that the militia includes children, yet they should have the right to self defense. Similarly, nobody believes that children have the RKBA, yet they do have the right to self defense.
In addition, as I’ve pointed out, Congress has, from day 1, exercised the power to define who is in the militia and continues to exercise that power today. This makes the militia clause a poor text for the right of self defense — Congress shouldn’t be allowed to define who’s in and who’s out when it comes to that right. Self defense belongs to a much larger group than “the militia”.
Fine distinctions between organized and unorganized militias are blinding you to the obvious point that the original suggestion of locating the right to self defense in the militia clause is simply a bad argument. Let’s just all agree on that and move on to the actual goal.
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December 20, 2009, 9:15 pmShelbyC says:
It’s not rocket science. Based on the text, the folks who wrote in believed that protecting the people’s right to keep and bear arms would advance the interests of the militia. If an amendment said, “because farmers need plows, congress shall not infringe on the people’s right to buy, sell, or possess plows” the only people who would believe that that right was limited to farmers would be people who really wanted to believe that.
Which is in both the 19 and 21st centuries SCOTUS found that the second amendment linited Congress’s power to infringe on the right to “bear[] arms for a lawful purpose”
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December 20, 2009, 9:16 pmDavid E. Young says:
The mother of all ideological divides was only further enhanced by the 5/4 split in the Heller decision. Justice Ginsburg thinks the case was wrongly decided. Every participant at the GMU Heller Symposium in November of 2008 who supported Washington DC in the case thought the same. Supporters of gun control strongly question the historical soundness of the majority opinion but implicitly accept that in the dissent.
Justice Scalia’s opinion was roundly criticized by Professor Jack Rakove, the primary author of a professional historians’ amicus brief supporting Washington DC in the case. Justice Stephens’ Heller dissent relied upon the main arguments found in that amicus brief. After all, the arguments in the dissent received the imprimatur of fifteen professional historians, all academics holding Ph.D.s who specialize in various aspects of period American history, and several of whom have won prestigious awards. Surely, one can assume that the dissent, thus supported, was well founded historically.
The fact is that the historians’ brief is founded on an astounding number of documented historically false statements, it diverts away from the Second Amendment’s actual bill of rights developmental history and intent, and it conflates those factors with the history and intent of an entirely separate militia powers amendment that the historians conveniently fail to mention the existence of. In effect, it twists American history to fit a narrative of the historians’ beliefs. As a result, it is the Heller dissent that is lacking in historical soundness.
Examination and documentation of errors in the historians’ Heller amicus brief are located in a 24 part series entitled Root Causes of Never-Ending Second Amendment Dispute at On Second Opinion Blog [Part 1 is at the bottom of the page].
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December 20, 2009, 9:18 pmMartinned says:
The only way to (partially) fix that is to write the bill of rights longer. Quite apart from what kinds of rights should be recongised, newer lists of rights tend to be more detailed so as to avoid some of this judicial realpolitik.
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December 20, 2009, 9:19 pmStormy Dragon says:
I think this is looking at the issue entirely backwards. Rights aren’t grounded in the constitution at all; powers are. The question is not ‘where in the constitution is the right to X granted?’ but ‘where in the constitution is the power to interfere with X granted?’.
Specifically in Lawrence, where in the State Constitution of Texas is the legislature granted a power which, in order to be exercised, necessitates imprisoning people for homosexual sodomy?
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December 20, 2009, 9:21 pmMartinned says:
Isn’t it great how originalism works to reduce the freedom of judges to vote their politics?
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December 20, 2009, 9:22 pmG-Veg says:
Stormy Dragon,
With respect, I think you have it backwards because you are ignoring the Tenth.
The BOR lists SPECIFIC rights secured against FEDERAL intrusion. The rest are reserved unto the People as represented through the states. It is not that the Federal courts get to determine what rights, beyond the United States Constitution, are protected.
This is the fundamental flaw in the entire penumbra line — that the Court is creating a federal enforcement of “privacy” where no such duty to protect that right exists in the US Constitution. Applying a more modern approach, the Federal “floor” IS that which is created by the BOR. Where states have privacy rights enumerated in their constitutions — and many do — the Federal Court must be, largely, silent.
Again, this is not to say that the SCOTUS can never intervene, but it does so at its own peril and it usually creates a mess of it. Roe is utterly unsettled and Scalia suggested in Lawrence that Lawrence would also be unsettled for a long time to come.
Heller is utterly unlike this because it is specifically enumerated and the Court is empowered under the Constitution to state what the Second means.
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December 20, 2009, 9:28 pmHercules says:
Did Justice Ginsburg even bother to read Heller?
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December 20, 2009, 9:32 pmChris Travers says:
Stormy Dragon:
Wouldn’t that be specifcally a matter for the state supreme court?
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December 20, 2009, 9:33 pmStormy Dragon says:
My interpretation of the Ninth is that the burden is that if the government is challenged, the burden ought to be on the government to show that the action is needed to exercise one of the powers granted elsewhere (e.g. article 1, section 8 or article 2, section 2). Ammendments 1–8, then, are those rights which are further protected such that they cannot be violated even then.
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December 20, 2009, 9:39 pmOren says:
This works well enough against the Federal Government, but the States are not so constrained. Hence Lawrence falling back on the substantive liberty protected by the 14A.
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December 20, 2009, 9:42 pmG-Veg says:
Stormy Dragon,
If I understand you correctly, you divorce the Ninth and the Tenth. Why?
They seem to me to be one of a piece — that the Tenth is the natural progression of the reasoning in the Ninth.
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December 20, 2009, 9:44 pmStormy Dragon says:
Probably, excepting that the Texas State Constitution weirdly declares that its courts aren’t the final arbiter of its own criminal laws in Article 5, Section 3.
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December 20, 2009, 9:51 pmSuperSkeptic says:
Interesting. Would you support Jefferson’s idea of periodic constitutional conventions, say 20 years apart?
If you answer yes to the above question, do you think this problem would be largely ameliorated (since the political underpinnings will all be in living memory)?
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December 20, 2009, 9:52 pmOren says:
Well, at least Alito is consistent (2A relevance in the last sentence).
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December 20, 2009, 10:06 pmTwirip says:
The right to bear arms exists for many reasons, as do arms themselves. The people of the Founding generation needed and used arms for much more than just the Revolution. The stated reason in the Second Amendment need not be considered an exhaustive list of all possible reasons.
Regardless of whether the right exists to secure a free state, for self defense, or just because “guns are cool”, the right exists and shall not be infringed.
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December 20, 2009, 10:25 pmTwirip says:
No. The right to self defense is not some separate right which would need to be added. It is already covered by the Second Amdt.
What, would you suggest we end up writing some 34th Amdt stating that “Self Defense being a right of all people, the right to keep and bear arms shall not be infringed”?
I suppose it would follow the new amendment making it clear that our email may not be viewed by the state without reasonable cause.
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December 20, 2009, 10:43 pmTwirip says:
This is a lame line of argument. Look for the part of the State Constitution of Texas which grants it the power to imprison people. There is nothing there to the effect of “this power is void in the case of homosexual sodomy”. States can make laws. That’s what makes them states. And they can punish people who violate those laws.
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December 20, 2009, 10:47 pmTwirip says:
What is “weird” about that? It sounds like the sort of provision which should be more widely adapted.
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December 20, 2009, 10:51 pmJim N. says:
Yeah, can’t help you out. My application to the Harvard Club was not accepted. Something about not going to Harvard....
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December 20, 2009, 11:30 pmJames N. Gibson says:
After all that has been said here, one important question was never even approached. What dissent was it Ginsburg would use to repeal Heller: the Steven’s or the Breyer.
Steven’s dissent is based on the Brady campaign third “Hard-Hitting” posted on the Brady website. It basically contends that four two hundred years we got the entire first ten amendments to the Constitution wrong. Instead of having nine individual right amendments and one “Collective” as the gun control movement has held for over 40 years, the new revelation is that all ten amendments are collective in nature and now have to be reinterpreted in that way. Thus, as Brady put it, you don’t have an individual right to elect your congressman to office, its a collective right you can only engage in as part of an approved collective.
Steven’s took this further by declaring that any petition has no merit if it isn’t from a group or collective. Of course Habeus Corpus just happens to be the individual’s right to petition the court for the reason they are being held. And if the individual’s petition is just that, by Steven’s analysis, it can be ignored immediately, while a rich person’s petition (signed by numerous friends) is given credence. And for those who choose not to believe this, also don’t believe that Article 1, section nine says “the privilege of Habeus Corpus”, not the right. Under the Steven’s dissent Habeus Corpus will in-fact become a privilege again.
As for the Breyer, his argument is that the amendment was solely directed at maintaining a militia (which Breyer knows only as a National Guard) and that the cities had the right to (and did) ban the keeping of loaded guns within the cities and the firing of them within. What Breyer then did to blow his argument out of the water was to then mention Hicks as his source for the fact that a trained musket-man could, when using paper cartridges, only achieve a load rate of four shots a minute. His argument being that because rifles took longer to load and that people were some how prohibited to have paper cartridges, that it constituted a de-facto ban on arms.
Breyer’s argument falls apart when one notes that the 1792 militia act requires all men in the country to own a musket and have a certain number of paper cartridges at the ready within there homes. Thus even if the gun was left unloaded it could be loaded in a short period of time. Then there is the fact that these bans were in New England, were the Washington letters clearly show that the people in those colonies had never seen rifles (they owned only smoothbore weapons, AKA Muskets). And Hicks makes no mention of the load speed for a smoothbore pistol, which is shorter then the speed for loading a longer musket. And any man who served in the militia cavalry had to own his own pistols and any man who volunteered to serve in the cavalry under a Federal law of 1812 was given a pair of pistols following completion of his service.
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December 20, 2009, 11:42 pmRoger the Shrubber says:
I wonder if a “future, wiser court” could make Al Gore president?
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December 20, 2009, 11:45 pmDavid E. Young says:
The well regulated militia clause of the Second Amendment is routinely misinterpreted. It did not originate as a reason for the right. The original two-clause predecessor from the Virginia Ratifying Convention’s proposed bill of rights included two equal declaratory clauses:
George Mason, who is responsible for this language taken from his model for the U.S. Bill of Rights, did something similar with freedom of the press. He combined Virginia Declaration of Rights langauge with that of Pennsylvania:
Freedom of the press is a name applied to a protected concept, while the people’s right of writing and publishing their sentiments describes essential elements of that protected concept. Similarly, a well regulated militia is a name applied to a protected concept, while the people’s right to keep and bear arms describes essential elements of that protected concept.
It is undoubtedly difficult, especially for those in the legal profession, to accept that “a well regulated militia” did not mean “a government regulated militia.” “Well regulated” simply meant “effective” or “proficient” when joined with the term “militia.” This definition fits any context in which well regulated militia appears in period texts.
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December 20, 2009, 11:45 pmGene Hoffman says:
The most amusing thing about Ginsburg’s position is that she forgets Article V. If some later court decides to nullify Heller, I’m pretty comfortable that the math and public opinion will allow 2/3 of the states to propose and 3/4 to adopt Amendment 28 that does away with the silly prefatory puffery and makes it clear that “the right of the people to keep and bear arms for self defense and the defense of liberty shall not be infringed.” 75% of the population may not agree with Judge Kazinski that the right to arms can only be lost once in a Republic, but the people’s representation by state does.
–Gene
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December 20, 2009, 11:55 pmJames N. Gibson says:
Hey, young man, admit it. You support the idea that there was only a small “highly trained” militia as put forth by the gun control movement. The 1792 act required all males from age 18 to 45 to be enrolled, not a select force. The term organized was not used at that time, it was uniform militia.
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December 20, 2009, 11:57 pmM-K says:
It really seems that some of you have not actually read Heller, or Parker, which makes the case more effectively:
The Right to Keep and Bear Arms existed before the Constitution, under British, Colonial, and Natural law. That right was unconnected to the militia and certainly included self-defense, hunting, target shooting, collecting, and all other traditionally lawful uses of firearms and other weapons. It was also incontestably an individual right.
In order to ensure that the people of the United States would always have the wherewithal to form well trained and effective (“well regulated”) militias, the Constitution guarantees this pre-existing right against infringement. This would effectively prevent the Federal Government from undermining the militia, and the presence of the militia would make standing armies unnecessary or less likely.
So yes, the Second Amendment certainly is (in part) about personal self defense–as well as defense against tyranny.
I’ve just finished reading David E. Young’s excellent FOUNDERS’ VIEW OF THE RIGHT TO BEAR ARMS, and it documents beyond serious doubt that the militia of that era encompassed nearly all able-bodied white men, and that during the Revolution the term “well regulated militia” took on the connotation of voluntary, non-governmental, ad hoc forces brought together to throw off tyranny. (Put _that_ in your Second Amendment and see how it tastes!)
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December 21, 2009, 12:03 amChris Travers says:
“Wiser” means “Agrees with me more.”
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December 21, 2009, 12:07 amDon Meaker says:
Self Defense is a right that existed prior to the Constitution. It is best implemented by a right to arms, enumerated in the Constitution.
The 14th Amendment extends those rights to citizens of the several states, even against the states.
Congress has the duty to change laws, when Executive or Judicial branches err in enforcement. Congress also has authority to remove any field from the scope of review by the Supreme Court, or any other court.
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December 21, 2009, 12:14 amSuperSkeptic says:
Good thing Mr. Adams and co. got in there with a “shall” or else Ginsburg, Breyer, and Stevens & co. would be telling us that our 2nd amendment rights only “ought not” be infringed.
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December 21, 2009, 12:21 amSuperSkeptic says:
Depends, Breyer’s balancing test aids her cause in its subjectivity, but if the votes aren’t there, maybe retain the bit of stevens’ individual right with a side of Breyer’s test.
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December 21, 2009, 12:23 amJames N. Gibson says:
Steven’s dissent is that there are no individual rights, just collective.
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December 21, 2009, 1:19 amGentlemanFromHanover says:
The dissenting opinions are excellent tools for “future, wiser courts”... in their fever to stop the truth, they made the mistake of honesty (a mistake by many who wish to compel others to live as the former desires) and admitted that the rights apply to all and that military style weapons are, by intent, protected.. they just wanted to limit the groups that they, the dissenters, would allow to have the rights that so clearly are “unalienable” for all.
I find it insulting and dangerous to allow a simple, obvious truth — that all citizens may own and carry arms without interference of any kind by any government — to be defined by the very institution that the language was designed to overthrow upon evidence of tyrannical behavior. The statement is clear, we aught organize amonst ourselves into localized militias, we aught to be ready to defend ourselves, our families and our liberties, and government has no power to curtail the accumulation of arms that would be necessary for that purpose.
I cannot understand how they can spew such insanity... perhaps because –I– do not wish to tell others what they can or cannot do until what they do causes direct harm to myself, and have no desire for fame and fortune and my name in the history books even if it means that freedom is sacrificed in the process...
Or maybe I’m overreacting and Justice Ginsberg is simply advocating for more hispanic women on the court in future years (like the wise latina Justice Sotomayor).... :)
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December 21, 2009, 1:19 amJames N. Gibson says:
First, we had “people of color” in northern militia units and when quotas of men for detachments of militia were debated in the 1790s and early 1800s southern states regularly protested that their quota was based in the entire male population including their slaves. So the militia wasn’t viewed as just white-males, unless your a southerner.
Second, the volunteer militia you are suggesting was the meaning of a well regulated militia didn’t come into official existence until 1812 and the volunteer act. All previous attempts to create an elite or volunteer militia had failed in Congress.
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December 21, 2009, 1:25 amSarcastro says:
Yup, saying you hope your dissent is one day vindicated is exatly like saying you hate stare decisis !
I’m sure Ginsberg, being ONE liberal, never follows precedent she disagrees with!
Plus her dissent was wrong, so her hoping it’s overruled is, like, double wrong!
IMPEACH!
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December 21, 2009, 2:01 amGentlemanFromHanover says:
If you refer to the statement “The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places” then I agree. This statement makes sense only if the consideration of the court cannot exceed the first few words in the sentence. Then it is technically correct only because the rest of the 2nd Amendment is the part that denies that to governments.
The historical references were generally sound...
However, it makes no sense to perform the massive legal-ese analysis of something that was crafted with specific and explicit purpose NOT to be hacked and debated with intricate legal speculation, but instead was meant to be read and understood by the common man. Fortunately our founders were intelligent enough to write the constitution in such a way that it stands up to such attacks (when they are done in an honest way, not the biased twisting and denial the contemporary pro-control-ers audaciously argue).
I’m no lawyer, but I have read the original documents, founding-era records and the concerning opinions of a SCOTUS that lately appears to have lost restraint and principled adherence to the founding documents and simple truth in many cases, and the overwhelming evidence of what was meant is what was said — We aught to be disciplined, training ourselves, and that because this is so important, governments must not be empowered to infringe upon any citizen’s right to privately obtain the arms necessary to defend ourselves and our country “from any enemy, foreign or domestic.”
We all hope that it won’t escalate to that unfortunate situation of taking up arms against our own government, but “we the people” can never take that last resort off the table. Beyond that, if the government is legitimate and respectful, it can not fear this extreme and undesirable action, because they would not force the people into it in the first place. With hope, respect for our rights will be restored with an honest decision on the upcoming Chicago case, and the subsequent challenge to gun-control in general.
For my own part, I find the pro-gun-control crowd incredibly amusing as they attempt to argue a position in spite of all facts to the contrary.
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December 21, 2009, 2:02 amSuperSkeptic says:
James N. Gibson,
I think this is a mischaracterization, an exaggeration.
Stevens’ dissent begins:
Stevens merely attempted to limit the words “the people” to the people in the “well-regulated militia” in order to limit the scope of the right to keep and bear arms. Rather than engage in the definition of “arms” as does the majority (and where the majority draws its line), he pre-empts this discussion by limiting the phrase “the people.” If you are within his definition of “the people,” i.e., in the “well-regulated militia” then you have an individual right to keep and bear arms, according to Stevens. He even construes “bear arms” to mean only in military service. His reading is clearly far more “strained” than the majority. He cites Story and Presser, but I do not think he truly understands them. His position is too coy as well, as one might expect an exhortation to re-establish the militia from one who so lauds its attributes. But it seems to certainly protect an individual right, thus circumscribed. I have re-read the opinion, and I cannot conclude as you do. Perhaps you can point me to specifically what makes you think “Steven’s dissent is that there are no individual rights, just collective.”
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December 21, 2009, 2:07 amJ. Aldridge says:
How about something a little more clearer and to the point for 2A rights activists:
Amendment 28. The right of individual citizens to own and use firearms for their personal defense or hunting shall not be infringed.
It would never had passed in 1790 because it goes far beyond the mandate of the federal constitution and dwells into the domestic concerns of the states, nor would it in 2010. You would rather use “keep and bear arms” because that can be twisted without having to actually say you don’t want your fellow man to make state or local regulated gun laws because they are stupid (and they are but that isn’t a 2A issue).
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December 21, 2009, 2:14 amOren says:
Somehow I can’t imagine Thayendanegea or Crispus Attucks being enrolled so you might want to write with a tad more precision.
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December 21, 2009, 4:10 amKharn says:
My suggestion? “The right of all individuals to keep and bear arms for personal and communal defense shall not be infringed by any branch of local, state or federal government. The current and previous issued arms of the United States armed forces are included within the scope of this right regardless of date of manufacture.”
The second sentence is to prevent any rift between military and commercial small arms development, to ensure communal defense will always be possible.
J. Aldridge:
Hunting is not essential to liberty.
“Keep and bear” is a much wider right than “own and use”. Your suggestion would allow states to ban concealed or open carry (or even the entire transportation of arms), where the courts have to go through quite strained analysis to explain why “bear arms” doesn’t include a man putting a pistol in his pocket before driving to work. To claim that such a position requires “twisting” of the words is humorous.
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December 21, 2009, 7:50 amFantasiaWHT says:
It’s probably been said already, but I’m not checking 100 comments for it.
So, is this “future, wiser court” made up entirely of female latinas?
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December 21, 2009, 7:53 amMarkJ says:
Nate,
“Great news. Heller is a travesty. What a poorly reasoned decision with such poor use and distortion of history. Let’s all hope.:
“Poorly reasoned?” “Poor use and distortion of history?”
Oh, kinda like this book that folks like you thought was the bee’s-knees not so long ago?
http://en.wikipedia.org/wiki/Arming_America:_The_Origins_of_a_National_Gun_Culture
Or have you conveniently forgotten about this already?
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December 21, 2009, 8:21 amMartinned says:
Yes, and Yes. The whole problem of orginalism vs. whatever else there is, is unique to the US. My country’s constitution, which dates back to 1815, has been revised periodically since then, most recently in 1983. There is never any dispute about the proposition that the constitution should be interpreted in accordance with the intention of parliament in writing the constitution that way, just like statutes.
(Intention vs. public meaning is less of an issue in a proportionate representation parliamentary system. The intention of parliament can be gleaned from the debates fairly easily, by looking at the speeches of the spokespersons of the majority parties.)
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December 21, 2009, 8:27 amFearsome Tycoon says:
The rationale for a right does not limit the right. If that were the case, then the First Amendment wouldn’t apply to pornography.
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December 21, 2009, 8:27 amNick Reynolds says:
Martinned,
Here’s the best explanation of the second amendment I’ve heard in a while. Maybe having a couple of comedians explain it will help your understanding of it.
http://www.youtube.com/watch?v=1GNu7ldL1LM
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December 21, 2009, 8:27 amCarl from Chicago says:
The interest generated by Heller and Second Amendment topics is rather astounding.
While perfectly believable, and while David Kopel is a very trustworthy source for information, this thread is based on hearsay ... and has generated some 115 comments in about 18 hours. Not one has questioned the truth of Ginsburg’s alleged statement (and I am not saying anyone should).
That this topic is so interesting to folks ... is amazing and heartening. Just imagine the interest that would be generated by a decision in favor of McDonald ... that would effectively bring the second amendment to all the people (where it belongs).
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December 21, 2009, 8:34 amBob Young says:
What difference does it make? We’re headed for chaos. Manmade laws will soon become academic abstractions. The “wisdom” of elites like Ginsburg have brought us to this. Thanks to the wisdom of our nation’s founders, we won’t go into it unarmed.
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December 21, 2009, 8:36 amDjDiverDan says:
G-Veg, by that standard Griswald v. Connecticutt was pointless as well; few states outlawed the sale of contraceptives, and even fewer (not even Connecticutt) enforced those laws. Indeed, if not for a purely collusive prosecution (unlike in Lawrence, where there was an actual, though half-hearted prosecution), Griswald would never have made it to the Court.
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December 21, 2009, 9:07 amMartinned says:
Penn & Teller Rule!
My problem with Heller isn’t the “right of the people” part, but the fact that Scalia enlisted the 2nd amendment to talk about self-defence, as opposed to the defence of “a free state”. The difference between the two comes up further down the line when the courts will have to talk about what kinds of limitations on what kinds of guns and what you can do with them are reasonable. (eg. You can’t own a tank, or an ICBM, or if you can, you may not take them out on the street.)
In the end, I’m not much of a fan of originalism anyway, and Heller shows exactly why. (I’ll give you a clue: lawyers aren’t very good historians, and lawyers looking to defend a particular outcome are even worse.) But the idea that either dissent departs from the “plain text” of the amendment more than the majority does is simply ridiculous.
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December 21, 2009, 9:07 amOxbay says:
Ginsburg lacks a judicial temperament.
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December 21, 2009, 9:10 amMike M. says:
Does Ginsburg realize that precedent is the only thing keeping a bushel of SCOTUS decisions from being overturned?
What we’ve got here is a Mexican standoff. The threat of overturning Heller protects Roe v Wade...and vice versa.
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December 21, 2009, 9:25 amDantes says:
“My problem with Heller isn’t the “right of the people” part, but the fact that Scalia enlisted the 2nd amendment to talk about self-defence, as opposed to the defence of “a free state”.”
Here’s why I am a big fan of orgininalism. Scalia was merely recognizing the right to self defense is the right to one’s life, the ultimate private property. To argue that defending a free state is protected by a right to bear arm, but that protecting one’s life and liberty with arms is not protected, is to split a hair that cannot be split.
Ultimately, the power to replace a government, an institution of mankind, by another government because of abuses by a particular government in place at a time in history is reserved to the people. Such protection cannot be if there is no enumerated right to bear arms. Self defense is implicit in the right, against all who would threaten one’s life, be it one man or a tyranny of 436.
The 2nd Amendment has been way overanylyzed by people like those 15 academicians, who see history through their anti-second amendment goggles. The contemporaries of the founding fathers would have looked at you as if you were mad by asserting they had no right to self defense, and could only own firearms because of a need to protect the state.
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December 21, 2009, 9:54 amDavid E. Young says:
James N. Gibson said:
K-M specified that he was discussing meaning at the time of the American Revolution. Prior to hostilities, well regulated miltia took on the meaning of effective self-embodying militia of the people (all volunteers, all at individual discretion, all self-officered, self-organized, and self-trained).
The Second Amendment is based directly on the revolutionary era state declarations of rights, eight of which were formed when their new state constitutions were established. The historians’ Heller brief fails to note that the Second Amendment’s predecessor, which they do agree came from the Virginia Ratifying Convention, was actually part of a proposed bill of rights, nor do they point out that it consisted of an exact quote of the 1776 Virginia Declaration of Rights combined with an almost verbatim quote of the Massachusetts Declaration of Rights “the people have a right to keep and to bear arms” language (from the state where the British actually disarmed the entire population in its major town of all their privately owned arms while still in colonial control).
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December 21, 2009, 10:09 amG-Veg says:
DjDiverDan,
To be quite honest, I have a real problem with the entire line of cases that begins with Griswald. Again, my problem is not with the results but with the process.
Simply stated, social change should move with the political process, not the judicial. ONLY where there is an express right should the US Constitution be brought to bear.
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December 21, 2009, 10:11 amMartinned says:
@Dantes: That’s why I would put the right to self-defence, including the right to own certain weapons for the purpose of self-defence, in the 9th amendment. It’s a common law right that is so basic and fundamental to the American legal tradition that the founding fathers never considered giving it a separate amendment. It comes up everywhere, for example as a common law defence in criminal law where it isn’t recognised by statute law, etc. However, the consequence of dealing with it as a 9th amendment/unenumerated common law right is that it can’t be dealt with as rigidly as the enumerated rights. Common law is alive, it changes slowly, very slowly, over time. (Which is how I’d prefer to interpret the US constitution anyway, but that’s a different story.)
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December 21, 2009, 10:15 amMikee says:
Martinned: when the 2nd says “a free state,” is it talking about a freely-decided-upon government entity, chosen by the people, or is it talking about individuals living in a state of freedom through their right to self defense?
In either case, does the individual right to keep and bear arms support the free state or destroy it?
Mike M.: There is no standoff here. Heller is a building block toward reinvigorating the 14th Amendment. Roe v Wade might be made moot, if government is limited in its scope and powers through subsequent court cases (a dream to some, but possible).
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December 21, 2009, 10:19 amkrs says:
tarheel makes a good point.
I wouldn’t say that every dissent is written in the hope that it will be a future majority opinion, but I would say that every dissent has as its starting point that the majority has erred somehow. And every Justice seems to have a few “least favorite” cases that s/he thinks should be overruled someday. I wouldn’t be surprised at all if a conservative Justice referred publicly to a future “wiser” court overruling Roe v. Wade or Roper v. Simmons, or any of many horribly reasoned decisions out there, though the word choice might be something other than “wiser.”
The interesting thing about this, though, (to me at least) is that Justice Ginsburg seems to be talking about McDonald. As other posts have documented, she has shown little restraint in talking about pending cases in the past.
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December 21, 2009, 10:21 amkrs says:
I’m also reminded of Prof. Paulsen’s take on stare decisis. An excerpt:
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December 21, 2009, 10:28 amKharn says:
Martinned:
There are actually no laws against tank ownership in the United States.
There are laws regarding the cannon and machine guns, both require $200 tax payments and dealing with the ATF but they will not deny your purchases as long as you follow the paperwork instructions.
Now, driving a tank on the streets could be problematic due to local prohibition against vehicles damaging the roadway (if rubber band-tracks aren’t available for your model), but wheeled ones are almost always possible to get registered & plated, or you can use a low-boy to haul your tank to whatever property will let you make giant ruts in their fields.
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December 21, 2009, 10:49 amBuddy Hinton says:
Well-regulated militias (or their modern-day equivalent) carry long guns, not handguns. If the right to bear arms is not absolute (and it is not), then its limitations should definitely have some kind of decent nexus with the preamble of the amendment itself.
I don’t care if every adult non-felon is considered to have sufficient militia-ousness for 2A purposes. The point is: the right to bear arms should extend (by right, that is) only as far as needed, so far as the type and power of arms covered, for a militia to exist. In context, this means rifles, not pistols.
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December 21, 2009, 10:50 amMelancton Smith says:
Heller did not address the collective militia aspect of the Second because that issue was not raised. Dick Heller was seeking relief to be able to defend himself and family in his home.
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December 21, 2009, 10:50 amOwen Courrèges says:
True, it wouldn’t have passed. But only because the Bill of Rights was viewed in 1790 as a constraint on the federal government, not the states. However, if you instead revised that to say that “Congress shall make no law abridging the right of the people to keep and bear arms for their personal defense or hunting,” it would not have been controversial at all. However, it would have been regarded as redundant, since a right to bear arms had already been guaranteed, and furthermore because the federal government was granted no power to regulate firearms ownership in the first instance (also the reason for the compromise embodied in the 9th and 10th Amendments).
However, ultimately the 2nd Amendment was incorporated by the 14th Amendment (at least as much as any of the other first eight amendments, which were all mentioned explicitly in the Congressional debates regarding the 14th Amendment). At the time of the 14th, there was a great concern about the southern states disarming blacks to keep them from using arms for lawful purposes, including in self defense.
And in any event, you still haven’t tackled the original objection raised by Andrew, which is the simple fact that “the people” is a much larger body than “the militia,” so restricting firearms ownership to “the militia” runs counter to the plain text of the amendment.
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December 21, 2009, 11:00 amGordo says:
Apparently the 2nd amendment is now stronger than even the 1st amendment:
http://www.slate.com/id/2239294/
Now Congress is trying to regulate the private insurance industry to protect the unhealthy habits of gun owners.
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December 21, 2009, 11:13 amMartinned says:
And how do you decide whether any of this violates anyone’s 2nd Amendment rights? If the point is to protect “a free state” against any potential tyranny in Washington, surely that $200 tax is unconstitutional? If, on the other hand, the 2nd amendment is about self defence, that tax is much less of a problem.
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December 21, 2009, 11:17 amDonald Kilmer says:
Then Ginsberg should drop the pretense that she is sitting on a court that operates as check on the legislature. If she wants to sit as a member of a super-legislature, she should have the fortitude to name that as her goal and then seek that explicit outcome.
We always forget that our system of checks and balances is not just between branches of Gov’t (and the states and national governments) — but it also has the effect of setting up a contest between a tried and true past and an uncertain (but hopefully bright) future. The Supreme Court was designed to be the backward looking branch of Gov’t that acted as a ‘conservative’ check on the more ‘liberal’ democratic branches. We lose the path of a safe retreat to ideas that have a history of success when all three branches of Gov’t adopt progressivism as an operatioal philosophy.
I am not speaking here of ‘conservative’ and ‘liberal’ in terms of policy, but as mechanisms that slow or accelerate change. [with credit to Clayton Cramer for an explanation of this concept by reference to a chemical reaction metaphor.]
I do not fear the substantive ideas of the left. They are usually, easily defeated by an appeal to rational principles. What I fear more are the procedural policies of pragmatism; and that fear is borne out of the realization that the essence of pragmatism is the absence of principle.
Once the left succeeds in undermining the procedural safeguards of our Constitution, all is lost. Gov’t policy will begin to swing wildly and rapidly between extremes as we lose the limiting power of the operational conservatism built into that charter. I wish recent events (economic bailouts, socialized medicine, legislating the weather, etc...) were not an object lesson on this topic.
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December 21, 2009, 11:22 amSuperSkeptic says:
Martinned,
I appreciate your response. A follow-up question/consideration: As we see with the politicians and our 2nd Amendment rights, there is not necessarily “progressiveness” with rights development, but there can also be “regression.” How do you think this fact would impact such fundamental rights at the periodic conventions, i.e., “capture theory” as applied to periodic conventions? Or, would we be better off keeping our fundamental rights fixed in their most radical/revolutionary form from the era of their estabishment — be it the founding, or civil war, etc.? Or is that an impossibility anyway (since we both recognize the politial limitations built-in to the Heller decision (which you also decry for their historical inaccuracy))?
Your evaluation may depend on whether and/or how heavily you are a legal positivist.
How have “fundamental rights” changed with time in your country? What sorts of alterations have they undergone? Can you think of any significant “progressions” or “regressions”?
The constitution is supposed to limit what political actors may do. My concern with periodic constitutional conventions is simply that it may be counter-productive to give the politicians more access to our Constitution. At least politically appointed judges are one step removed...
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December 21, 2009, 11:26 amCody says:
The Second Amendment has nothing to do with self defense. One has an inalienable right to defend one’s life. No government grants the right of self defense. Good grief. The Second Amendment was meant to constrain the government against seizure of arms. The British attempt at seizure of arms in Lexington and Concord was a reminder of what happens when the government is under no such constraint.
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December 21, 2009, 11:46 amDantes says:
“The Second Amendment has nothing to do with self defense.”
Self defense is something different than defending your life? Pray, tell.
“@Dantes: That’s why I would put the right to self-defence, including the right to own certain weapons for the purpose of self-defence, in the 9th amendment. ”
Shoulda, mighta, coulda. They didn’t.
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December 21, 2009, 11:55 amCody says:
I’m saying that the right to defend your life isn’t “given” to us by the Second Amendment — it is inalienable, given to us by our Creator. We don’t need to enumerate that right any more than a badger need do so to defend itself from the wolf. The Second Amendment, rather than enumerating our right to self defense, is *constraining* the government against the seizure of our arms.
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December 21, 2009, 12:05 pmJoe says:
This is important to me since recently I saw a rerun of The Nanny, where she was on jury duty, and a picture of Ruth Bader Ginsburg was on the wall in the jury room.
Seriously, she seems to have talked about an overall bland subject, and cited a dissent she joined. Precedents are not set in stone. Plessy underlines the point. I’m unsure citing Heller means she will refuse to join future majorities in this area, even solely on precedent grounds alone. This was not the case on state immunity rulings. Breyer even wrote a ruling citing state immunity precedent that the libs on the SC strongly oppose.
As to the militia act, that only takes us so far. If Congress defined “the militia” in that act to include only those between 20 and 25, does this mean only those would have the rights found in the 2A? “The people” there clearly was something of a term of art in this context, but it has to be applied reasonably.
Overall, it does help underline that a RKBA should not rest on the 2A alone. People not in the ‘militia’ have a constitutional right to use weapons in various situation.
I also see that “penumbra” is cited in this thread by the “funny words” brigade, since use of funny words used by the likes of Holmes and Cardozo mean the principle is wrong.
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December 21, 2009, 12:08 pmPhatty says:
This question demonstrates a lack of understanding with the dissenting opinions in Heller. The two dissenting opinions should really be viewed as a single dissenting opinion in which the work load has been split up between two justices. All of the dissenters joined in the Stevens dissent, and all the dissenters joined in the Breyer dissent. Simply put, the dissenters first opined (via Stevens) that the 2A protects an individual right (not a collective right) but that right only extends to militia-related activities. The dissenters next opined (via Breyer) that even if the majority’s view that the 2A protects a right unrelated to militia service is correct, the D.C. law does not violate the 2A.
If the dissenters are consist in future opinions, they will follow the same pattern and find that the 2A first doesn’t apply because the case doesn’t involve a militia, and even if the 2A did apply the applicable law doesn’t violate the 2A.
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December 21, 2009, 12:23 pmHoratius says:
I think it is time to end the role the Court has in the American system, since it apparently is nothing more than a “legislature” to enact the will of law school elites.
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December 21, 2009, 12:24 pmHoratius says:
I didn’t read Mr. Kilmer’s comments, or any others, before posting. I agree with him, and he has said it well.
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December 21, 2009, 12:30 pmMartinned says:
That’s an intriguing, and probably unsolvable problem. The original US seems to have struck a pretty good balance, but the subsequent increase in the heterogeneity of the country (or at least the part that got to vote) and increase in the number of states necessary to ratify seems to have made amendments all but impossible, except in matters of procedure (like presidential succession). In Europe, constitutions tend to be easier to amend, but their human rights chapters tend to be restrained by the ECHR. Whether it is possible to withdraw from the ECHR is an unsolved question. I think it is, since I think it should be possible to withdraw from every and any treaty somehow, but I’m not sure if that is the majority opinion among academics. Regardless, the ECHR limits the ability of national parliaments to amend their constitution to remove rights they don’t like. (The same goes for the people, as the recent example of Switzerland shows, although it remains to be seen what the effect will be of that constitutional amendment.)
The role of the judges in all this depends on where on the flexibility scale the amendment process is. The more difficult it is to amend the constitution, the more the courts will have to bridge the gaps. Also, the courts are a good place to temper enthusiasm about rights that may not quite deserve that honorific. In the US, Roe is being slowly chipped away in subsequent rulings, until a core remains that is both deserving of being considered a “right” and has the widespread support of the people. (Well, close enough.) Similarly, many of the “rights” that are recognised in European constitutions and treaties are non-justiciable, the court’s won’t let anyone sue under them. A few months ago I read a fascinating blog post on Prawfs about South-African supreme court case law concerning the right to housing under their constitution, where the court does, in some circumstances, allow a case to be brought, but in most places such rights are not really rights at all. (Especially if one ascribes to the principle of ubi ius, ibi actio.) That’s how rights “regress”.
I would argue that both these are examples of the courts performing an invaluable function. The key question is whether they are allowed to do it. This stuff only works if stare decisis is observed neither too laxly, nor to rigidly. Common law means precedent moves slowly, very slowly.
(BTW, casting this in terms of precedent being “wrong” but nonetheless followed is inappropriate. The question is what happens if there is more than one correct answer, one of which is favoured by precedent, and another one of which is favoured by the justice on policy grounds.)
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December 21, 2009, 12:30 pmSpook says:
And then the SHTF and progressive communists, including SC Justices who violate their oath to uphold it as the “Supreme Law of the Land” can start living in caves too because there are millions of Americans who WILL hunt their sorry arses down and do unthinkable things to them.
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December 21, 2009, 12:43 pmjheath says:
Tim and Mark Field,
A body of caselaw exists describing the relative militia powers of Congress and the states. According to it, almost any federal law on the militia may totally preempt state laws, even if the federal law is arguably deficient for the purpose of regulating the militia. The familiar preemption doctrine applying to commerce regulation was founded on militia law precedent.
According to the caselaw, Congress can narrowly limit militia enrollment, can ill-regulate the militia to the exclusion of state remedies, and can abolish the militia by absorbing it into the federal army.
The research is here.
href=“http://guncite.com/journals/heath.html”>http://guncite.com/journals/heath.html
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December 21, 2009, 12:53 pmSarcastro says:
I agree with Spook. What is the point of civilization if it won’t let us kill (and torture!) people we disagree with?
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December 21, 2009, 12:53 pmMick says:
Cody says:
The Second Amendment has nothing to do with self defense. One has an inalienable right to defend one’s life. No government grants the right of self defense. Good grief. The Second Amendment was meant to constrain the government against seizure of arms. The British attempt at seizure of arms in Lexington and Concord was a reminder of what happens when the government is under no such constraint.
______________________________________________________
Best reply on this board. Don’t all these lawyers know that the constitution is about NATURAL LAW, and the limitation of Government to interfere with inalienable rights? The whole constitution is about the LIMITS of Government.
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December 21, 2009, 12:57 pmOren says:
If you try this, you will find that the ATF conveniently never manage to return your permit. In fact, since no funds have ever been allocated to process these applications, you not even have anyone against which to complain.
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December 21, 2009, 12:58 pmMark Field says:
I think this case law is right given the Supremacy Clause and the power of Congress to regulate the militia. That’s one reason why I don’t see the militia clause as providing textual support for the right to self defense.
My replies to Tim now read to me as impatient and rude. Sorry; it’s just that I do value the right to self defense and want it to be firmly established. When people make bad arguments about it, I think that undercuts an important right.
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December 21, 2009, 1:10 pmDonP. says:
Is it just me?
It seems terminally ironic that all the people, Ms. Ginsburg included, in all three branches of the Federal government not to mention many states, making the decisions about my ability to protect myself and family are all protected by armed guards pretty much 24/7.
Yeah, it’s probably just me.
Never mind.
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December 21, 2009, 1:23 pmMike M. says:
Not so. IIRC, there are roughly 100,000 legally owned machine guns in private hands in the United States. Modern artillery is scarcer, simply because each explosive round must also be accounted for. The paperwork requires patience, but little else.
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December 21, 2009, 1:24 pmKirk Parker says:
Martinned,
Certainly the adopters could have written
but that’s not what they meant, so they didn’t.
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December 21, 2009, 1:35 pmKirk Parker says:
Dangermouse,
Next up: editorial cartoons of hapless citizens defending themselves with coathangers.
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December 21, 2009, 1:36 pmjheath says:
Mark Field,
Your reflection above may be the most gracious I have ever seen on a comments page. Especially since your previous comments seemed hardly more offensive than could be covered by the adjective “terse.”
Re Tim’s concern about the Second Amendment, the significance of the federal power to preempt state militia law is that it renders any version of the “collective” model untenable. A federal right cannot be conditional on states sponsorship that is subject to preemption. Since this reinforces Tim’s central point about an individual RKBA (I think), we are all correct and can all be friends. But I think you get the most cool points for the above.
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December 21, 2009, 2:07 pmKirk Parker says:
Kazinski,
The spirit of your comment is fine, but I wouldn’t recommend you as a tour guide, that’s for sure!
SuperSkeptic,
But we can all drive our own tanks, if we want to (and can afford it.)
Buddy Hinton,
Handguns are widely issued in all service branches. It boggles the mind that you do not know this.
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December 21, 2009, 2:17 pmMartinned says:
You seem to have me confused with someone who disagrees with you on this. I know this thread is getting pretty long, but at least three times now have I explained that I think the 2A protects a right of all citizens. (Except maybe for felons, minors, etc.) However, that says nothing about the purpose for which the amendment was written, which, in turn, affects how you judge certain regulations of RKBA which may go to the core of the amendment or not, depending on how you look at it. (i.e. whether you think the amendment is about self-defence against criminals, or about countervailing power.)
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December 21, 2009, 2:32 pmChris Travers says:
I read Heller as reading the combination of the second amendment AND common law doctrines as requiring a right to own handguns for self-defence. My concern though with the Heller opinion is that it strongly undermines any militia-oriented right to bear arms by defining a militia in such a way as to assume that members are armed exclusively with handguns and hunting rifles.
If a future, wiser court better interprets the second amendment to prevent the banning of M16’s and the like because they are necessary for the maintenance of a well regulated militia, however, then there would be no rational basis for allowing submachine guns to be owned but instead ban handguns used for self defence. I think therefore a right to own a gun for purposes of self defence, given general common law doctrines on self defence, and given the fact that self-defence weapons pose fewer reasons for regulation than militia-type small arms, then it must necessarily follow that a right to own guns for self defence must also exist, and even if that fails, that no regulation banning self defence weapons in such an environment could be consistent with substantive due process requirements.
IANAL though so I could be missing something.
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December 21, 2009, 2:41 pmKirk Parker says:
Martinned,
OK if you say so; I’m just not clear how to take “who ignored the part about a militia being necessary to the security of a free state” then.
My take on the militia clause is the same as Eugene’s (as linked by JW above). My only quibble with Eugene is that the “whereas”-type preamble isn’t just a historical thing, you see that sort of thing up until the present day.
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December 21, 2009, 2:53 pmBrian G. says:
Heller is a joke of a decision issued by the radical-right wing Bush court that should be overturned at the first opportunity. This country is full of right wing zealots that think they need an Uzi or a bevy of shotguns to protect themselves from some evil minority boogeyman. The days of the wild west are long over with and the government should be able to restrict guns to end needless gun violence.
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December 21, 2009, 3:22 pmDonP. says:
Thank you Mayors Daley and Bloomberg for your contribution to the discussion.
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December 21, 2009, 4:10 pmSuperSkeptic says:
Chris Travers, the only thing you are missing is factoring in the faction of the court seemingly unwilling to allow us either.
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December 21, 2009, 4:22 pmCarl from Chicago says:
Sir, I urge you to review the history of the enactment of the Fourteenth Amendment. I believe you might find your argument to be completely upside down.
That is, if you are willing to review history ...
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December 21, 2009, 4:22 pmMark Field says:
First off, thank you for the personal note.
My point is, I believe, similar to that of martinned. What I’m suggesting is that if we were to just consider the militia clause in isolation (that is, separate and apart from the RKBA clause), it would make a poor textual basis for the right of self defense even if we all agreed that it protected an individual right. The reason is that the “individual right” in question would most easily and naturally be seen as “the right to participate in the militia”.
As Chris Travers says, Heller seems to have relied both on the common law and on the 2A in its entirety to justify self defense. That makes more sense textually (well, text plus originalism, especially if “originalism” includes 1868).
IOW, I was making a pretty narrow point in response to a suggestion up above.
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December 21, 2009, 4:35 pmWill D. D. says:
A “future, wiser” Court is inevitable with Justice Sotomayor’s confirmation, is it not?
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December 21, 2009, 4:48 pmSuperSkeptic says:
MarkField,
Okay, but my point (originally against Martinned’s similar position) was that the politics of gun regulation (and the politics of the factions on the court) today make a separation of those concepts virtually impossible, even if they were severable at the founding (the militia & and the common law self defense right). By not conflating them, when the militia no longer exists as it once did, one undermines the individual right today. Both sides need a limitation to the right, (line-drawing — hardly anyone would read it as an absolute (the points made above about tanks, RPG’s etc.)), and I remain grateful that (for now) the court allowed us the right to the extent that they did, despite its imperfections as others have noted (why not rifles, etc.).
And we’ve come full circle in 24 hours...
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December 21, 2009, 4:55 pmChris Travers says:
I said a “future, wiser court” for that very reason. :-) I suppose I could have been clearer, but I thought in the context of this discussion such a remark would have been understood as it was intended.
As for others, I don’t understand why some folks think this is a right-wing issue. The guy who convinced me that the Constitution protected an individual right was a lawyer who was so far left on most issues that he was ACTUALLY a former Communist party member. Yet when I told him I thought it was only collective, he asked me what a militia was, and pointed out he thought militia members were expected to furnish their own weapons.
Civil rights, including 2nd Amendment rights, should not be partisan issues.
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December 21, 2009, 5:00 pmSuperSkeptic says:
Touché Chris Travers.
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December 21, 2009, 5:14 pmSeth says:
Interesting, how everyone here presumes that the United States is going to be around much long for there to be Constitutional change to occur within. Denial of reality approaching is such a sad psychology to witness.
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December 21, 2009, 5:42 pmKirk Parker says:
Martinned,
OK, if you say so. I am puzzled what you meant by “ignored the part about a militia being necessary to the security of a free state” then.
My take on these is the same as Eugene’s (cited above by jw) except that Eugene almost makes it sound like such introductory clauses are a thing of the past, whereas my recollection is having seen such things quite recently.
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December 21, 2009, 6:09 pmKirk Parker says:
Mark N. and Chris Travers, am I just misreading you, or are you too in Buddy’s camp among the not-realizing-the-US-military-issues-handguns folks?
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December 21, 2009, 6:41 pmMatthew Carberry says:
RE: purchasing tanks and rocket launchers
Umm, wrong.
I can do a DD transfer right now. The registry is closed for new weapons but transfers of existing registered MG’s and cannon are ongoing. Grenade launchers and such are advertised right now and sales/transfers are closing. Cannon and MG shoots are yearly events.
ATFE may be unable to actually say in court under oath whether a given device is on the registry (good job agency whose whole reason for being is to collect taxes via a registry) but they are still transferring ones for which the owner has paperwork.
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December 21, 2009, 6:47 pmChris Travers says:
Ummmm.... I think you are misreading me.
Sure the military issues hand guns, but a militia exclusively armed with handguns and hunting rifles would not be worth much, and that if machine guns could be owned at all, it would be extremely hard to argue that any rational state for insisting that hand guns be stored unloaded actually exists.
Sorry for not being clear.
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December 21, 2009, 6:55 pmEconGrad says:
So, just to make sure I understand your position, we should all be able to own M16’s without restriction and all branches of the U.S. military should destroy their Beretta sidearms and cease to purchase or issue handguns. Is that correct?
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December 21, 2009, 6:58 pmKirk Parker says:
Chris,
I’m not so sure about that–nobody thinks the best use of a militia is going head-to-head in urban combat anyway, and many of the sniper rifles carried by our troops are just accurized versions of common bolt-action rifle designs.
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December 21, 2009, 7:15 pmwolfefan says:
After 171 responses and counting, it appears safe to say that no VC readers were at the luncheon.
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December 21, 2009, 7:30 pmEconGrad says:
Actually, the registry is not closed for all new weapons. You might say it is closed for new machine guns (due to 18 USC 922(o)), but even there it’s really only closed for new machine guns for civilian ownership (with transfers of current, lawful, civilian owned machine guns still permitted). However, new machine guns made for use by law enforcement, and for use by Class 2 manufacturers (or Class 3 dealers) as sales samples or for research and development, get added to the registry every day. All other categories of NFA weapons (short barreled rifles, short barreled shotguns, suppressors (a.k.a silencers), large bore destructive devices, explosive destructive devices, “Any Other Weapon” (AOW — pen guns, cane guns, smooth bore handguns, gadget guns, disguised guns, etc.) can be and are routinely made and registered for civilian ownership. Heck, you can even file a Form 1 (Application to Make and Register) and pay $200 and make your own once the form comes back approved. Anything but machine guns are OK for new manufacture for civilian ownership (subject to compliance with State law).
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December 21, 2009, 7:32 pmGentlemanFromHanover says:
Let me chime in with (what I hope are) some helpful facts:
— Militias at the time of the founding did indeed have pistols. In fact, if you were an officer or cavalry, you were expected to have two (and possibly a cutlass as well).
— Obviously, our military today uses handguns. Typically these are the M9 (if I’m not mistaken) made by Beretta (as someone referred to earlier) and variants, but I’ve heard stories of soldiers carrying Glocks. I’ve read many online accounts, confirmed by a discussion with a NH LEO who owns a gun shop, of problems with the Beretta’s slide (it can snap due to thin metal), hence a brand with a reputation for reliability like Glock may be more desirable.
— A program I watched a bit of last night on the History channel confirms the statement about Sniper rifles being essentially the same as Hunting rifles, even to this day.
— A guy I know who served 2 tours recently in Iraq and earned a purple heart, who happened to be his unit’s armorer (he manages the guns), told me that he always used the single-shot setting in the field and that standard issue rifles were never used with more than 3 round burst (I forget if he said full auto was not available anymore, or if this was just a best practice, I can ask him if anyone cares...)
HENCE, An AR-15 would not be as much of a disadvantage in the unlikely and undesirable event of an armed rebellion. The helmet, body-armor and tanks of Waco, would be more fear inspiring to me.
and Finally...
— Yeah, the point of the militia (and the premise of the main debate of militia vs. regular) is exactly that it is guys with handguns and hunting/sporting rifles. It is not the individual, 1 on 1 matchup that matters, but the passion of those who defend their own property and families, plus the greater numbers, versus the regular forces better equipment, better training and professional/full-time status but smaller in numbers. That “farmers with muskets” status is why the British mocked the American forces, until they saw the steady and stubborn resolve of those that were jealous of their rights as free men.
I hope this is helpful.
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December 21, 2009, 7:46 pmJ. Aldridge says:
The people were the “militia” with few exceptions. Many hated the fact (drills). :-)
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December 21, 2009, 8:19 pmMark Field says:
Ok, I get this.
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December 21, 2009, 8:20 pmGentlemanFromHanover says:
In an extreme emergency, ALL are potentially militia — the exceptions would be those the town allowed exemptions (by paying a fee... typically Quakers) or infirm and physically incapable.
In the area where I live, during Lexington and Concord, a woman named Prudence Wright rallied an all-women’s militia and actually took a British messenger captive by dressing as men and hiding by the only bridge between Concord and NH (where a top British officer was known to be) and holding him up using backup rifles/muskets or any other arms they could muster.
So, ALL the people constitute the militia. There is no need to comport something that does not exist (the sub-group mentioned previously), with the only other option (all the people ARE the militia).
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December 21, 2009, 9:08 pmM-K says:
James N. Gibson–My post, to which you responded, said in part:
To which you replied:
Please note that I said nothing about blacks one way or the other. My point was that most male citizens were in the militia. Indeed, in some places and times, blacks, both free and slave, were part of the militia, as were some Indians. I’m not sure any of them were considered citizens, though.
Then you wrote:
Whereas I had written:
I was talking about the Revolutionary militias, not those of the newly establish U.S. Government. If you wish to quarrel over the facts, please read Mr. Young’s book.
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December 21, 2009, 10:19 pmJohn C. Randolph says:
..and sometimes a dissent is a senile old cow bitching about the reassertion of our human rights, long denied by left-wingers who don’t trust the people with the power to defend themselves.
Ruth Bader Ginsburg can go to hell.
–jcr
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December 21, 2009, 10:29 pmChris Travers says:
Take a close look at the battles of Cowpens and Camden for militia vs regular performance.
In Camden, the militia were routed pretty much as soon as the shooting began. Cornwallis and Tarleton pretty much had it easy for a while until Gen. Greene began his campaign. Horatio Gates’ forces were largely routed there despite outnumbering and outgunning the Brits. The lack of discipline was a big factor. 2/3rds of the Southern Continental Army (the same army that won at Saratoga) was killed or captured in that battle.
At Cowpens. Brig. Gen. Daniel Morgan was determined not to repeat Gates’ mistakes. Among other things he set up his battle plan so the militia forces would have to regroup between the regulars and the flooding river, thus preventing them from routing easily as they did in Camden. Oddly the inexperienced militia’s lack of discipline actually worked against the British at Cowpens because the militiamen who misunderstood an order to “attack” (and though instead it was an order to “retreat”) may have helped more or less doom the rest of Tarleton’s units there. 9/10ths of Tarleton’s forces were killed or captured in that battle despite the British having approx. the same numbers as Americans.
In Cowpens, the militiamen were instrumental to victory, but only in conjunction with regulars. The victory, combined with brilliant strategy by Brig. Gen. Greene were very likely reasons that the Southern Colonies were not recaptured by Cornwallis and the United States relegated to the mere area of New England.
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December 22, 2009, 12:17 amLeo Marvin says:
Trouble is, Brian G. is a right winger trolling as a lefty. Search the archives for his comments (pre early to mid 2008?) if you don’t believe it.
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December 22, 2009, 1:46 amJ. Aldridge says:
I agree 100%. Instead of the lame and weak argument of twisting the 2A to read a “right” to keep a gun for personal self-defense or hunting, gun activist would be beter off attacking any future law that restricts their use of guns for personal defense. I admit that is tough since the court allows congress to do what ever they please under the commerce clause. As a matter of law and fact, congress has no authority to confiscate or restrict the use of personal property belonging to the people. Only the people themselves can under their own form of govt.
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December 22, 2009, 2:18 amharleycowboy says:
“future, wiser court.”
Is this prespin for a marxist leaning wise minority type?
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December 22, 2009, 7:40 amjheath says:
Mark Field & Martinned and anybody else interested in a “right” to be a militiaman.
I look at the Second Amendment from the perspective of militia law, since that is what J. Ginsburg, J. Stevens, et al. claim it to be. It is worth noting that they cite no militia cases that hinge on the 2nd Amendment, because there appear to be none excepting the one that follows. When I examine the militia law, I find no right to be in the militia, with one fascinating exception: in 1863 the Pennsylvania supreme court blocked federal conscription, because the latter “interfered” with the state militia. A concurring judge ambiguously cited the 2nd Amendment, but was unclear whether he meant citizens had a right to participate in the militia (without getting drafted into the army) or whether the state had a right to employ citizen militia without losing them to the feds. Either way, the Penn. court reversed itself after nine weeks and SCOTUS settled the issue in 1918 by ruling that Congress can abolish the militia by conscripting all the members into the army.
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December 22, 2009, 9:52 amGentlemanFromHanover says:
Just to clarify, are you agreeing and adding details, or disagreeing??
I think that we’re saying the same thing — militia forces are not equal to regular, hence they aught to be as close as possible (well-regulated) so that they can be of use... 1 on 1, obviously professionals are superior, hence a militia would require much larger numbers. That is why the New England militia forces had better results than the southern — the north had vastly denser population from which to draw the militia, where the south had lots of space to gather troops as well as a more sparse population, making militia turnout less numerous... that’s why the British preferred to approach the assault in this way.
If not for the ferocious guerilla forces of regular citizens, coupled with a difficult terrein, the British would have advanced in time to cut off the north, but instead were bogged down by relentless and gloriously stubborn southern heroes, as you describe.
The point being that if you have enough guys with hunting rifles and handguns, you could stand up to a regular force. You’d lose a lot of men, more than a regular force, but it’s not impossible. Examples include the insurgents in the middle east (we overwhelm them, but they still frustrate us) and the Vietnam war (again, even with tanks, airplanes and nukes, we still got bogged down.)
Of course, nobody would ever want things to get socont.
far down that road, but as I always say — I’d rather die on my feet than live on my knees.
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December 22, 2009, 11:21 amGentlemanFromHanover says:
The 2nd Amendment need not be twisted, it says plainly “...The right of the people to keep and bear arms shall not be infringed.”
It doesn’t specify any specific intended use, only that because without that natural right, a militia could not be formed, much less discipline themselves through practice, and militias are important.
I would like to know on what pretense does someone suggest that anyone has a “right” to stop someone from owning and discreetly carrying a weapon. That there are laws is insufficent, there were many laws in late 1930’s Germany, if “it’s the law” is all that is necessary, those laws meet that criteria. So what then? How do you justify telling someone else what they can or cannot do? I’d love to hear someone present that case and then defend it against scrutiny... so far, every gun hater has run away or turned to petty insults rather than defend their position.
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December 22, 2009, 11:40 amMark Field says:
Interesting. Thanks jheath.
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December 22, 2009, 1:35 pmKharn says:
ATF’s restoration of rights process is defunded, the NFA branch is operating normally with about a 3 month turn-around time for your machine gun, cannon, silencer or short-barreled shotgun purchase. ;-)
US v Miller said the NFA was constitutional because a SBS was not an issued arm in the military, they never asked if Miller was a member of the militia. I believe the NFA’s just as unconstitutional as poll taxes, the Army has decided that pistols are no longer sufficient for FOB-bound NCOs and officers to defend themselves, all are now issued M4 carbines. If a full-auto carbine’s mandatory for people likely to never see an insurgent, why isnt a full-auto carbine suitable for self/home defense in Baltimore?
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December 22, 2009, 10:05 pmChris Travers says:
Iirc, Miller was never convicted. The ruling only upheld the indictment and, by my reading, set an evidentiary standard for determining whether or not the weapon was protected. It didn’t decline to protect SBS’s either (notwistanding incorrect summary in Heller), but simply said one must show sufficient evidence that it was connected to the militia interest. Given that the defence didn’t even show up the Supreme Court hearing, it is wrongheaded to read more into it than it said.
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December 23, 2009, 12:47 amGentlemanFromHanover says:
Martinned (see prev. comment):
Isn’t the 2nd Amendment about BOTH the right to be capable of resisting government tyranny AND being capable of resisting private tyranny (aka Self-Defense)? I think that history shows that by prohibiting goverments from any direct or indirect (by use of “infringe”, meaning any encroachment even at the edges) restrictions on citizens’ abilities to arm themselves was in and of itself considered to be a serious concern and worthy of defiance.
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December 23, 2009, 12:49 amDavid E. Young says:
Mark Field said:
This is separating the text from its historical usage. The well regulated militia language of the Second Amendment came from George Mason, who, prior to combining it with the people’s right to keep and bear arms in the 1788 Virginia Ratifying Convention proposed Bill of Rights, used it in the 1776 Virginia Declaration of Rights, and prior to that applied it to a self-embodying defensive association in Fairfax County, Virginia. Such associations were formed in many Virginia counties well before hostilities of the Revoution and long before any new state governments were formed.
The historical usage was to describe each man taking up his arms (those arms with which he could and did defend himself when necessary) and associating with others to defend himself in an organized fashion against an organized attacker. There is a history behind the words. Everyone at the period knew the history and understood the words. Practically no one seems to know that history today and many are guessing at what the words might mean.
“The right to participate in the militia” does not fit the historical facts as well as the right of each man to take up his arms and associate with other individuals for organized defense. The latter is an individual right, and that right is dependent upon each man possessing and knowing how to use arms for defense. The right to participate is much too easily twisted into dependence upon government authorization for such participation, which is exactly what was argued in the Heller dissent from Justice Stephens.
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December 23, 2009, 2:37 amGentlemanFromHanover says:
The right to participate in an assembly is guaranteed by the first amendment. The second can then be read with that right, when applied to assembling for practicing (like a shooting match today) their shooting and marching skills, already secured. I would not suggest the 2nd protects the right to assemble the militia, I submit that the first protects this. Stevens’ dissent is uncomfortable to read, the strain of his incorrect and demonstrably false assertions alone draws me too close to thinking that the quality of supreme court judges today (and seemingly this is nothing new) is below par...
Mason’s 1776 statements are not the first usage of “well-regulated” in the manner the statement is used in the 2nd amendment. Read the Resolution presented by Patrick Henry March 23 1775, for which he argued with the “Liberty or Death” speech.. When I consider this, in conjunction with Henry’s statements such as “the [purpose we have in mind] is that every man be armed” — one cannot in honesty believe that there is any other intent than to protect the natural right of self-defense from all who seek to hinder it.
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December 23, 2009, 9:37 pmDavid E. Young says:
GentelmanFromHanover said:
One of the earliest was Josiah Quincy, Jr. in his pamphlet, Observations on the Boston Port Bill with thoughts on Civil Society and Standing Armies. Quincy discussed all three of the points later grouped with the original progenitor of the Second Amendment’s first clause as the leading concept by George Mason in the 1776 Virginia Declaration of Rights. This three part structure, or Mason Triad, with leading Second Amendment predecessor language was copied into every subsequent period state declaration of rights. Four of those use the well regulated militia reference, the other four use “the people have a right” to bear arms style language that originated in Pennsylvania as the leading Mason Triad declaration. This early development of Second Amendment related langauge in Mason Triads is traced and documented in The Founders’ View of the Right to Bear Arms.
If this was a reference to Patrick Henry’s statment in the 1788 Virginia Ratifying Convention — “The great object is that every man be armed” [OSA 407] — that statement by Henry was not related to a bill of rights proposal like the Second Amendment predecessor, but rather to alteration of the Article 1, Section 8 militia powers. Henry and Mason both wanted an amendment that would assure the states would have authority to organize, arm, and discipline the militia if the general government failed to do so. Mason eventually formed and Henry introduced a proposed amendment that directly addressed that issue. It was not the Second Amendment predecessor in the proposed Bill of Rights but one of the twenty proposals in a list of “other” amendments from Virginia’s ratifying convention.
There is a lot of confusion about and conflation of Virginia Ratifying Convention militia powers and Second Amendment related bill of rights arguments. The professional historians’ Heller amicus brief only added to that confusion.
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December 24, 2009, 1:10 amGentlemanFromHanover says:
Indeed.. Well said sir.
I was not familiar with the previous usage, my point was only THAT it was widely used, and for some years previous.
Just to clarify, it is the sentiment of such “every man be armed” statements that I’m getting at. There are many, many such examples that support my understanding, but very little to support the opposing view.
In addition, we can examine the omitted “religiously scrupulous” text that was suggested and the reason for omission — that the government would declare all religiously scrupulous of bearing arms and then disarm the people — as further support for the literal reading of “right of the people shall not be infringed”...
However, I absolutely appreciate the additional information and will certainly look into it if for nothing more than to expand my knowledge of the history. Thank you sir.
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December 24, 2009, 3:36 amGentlemanFromHanover says:
I absolutely will be reading the book mentioned 2 or so posts back...
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December 24, 2009, 3:38 amCarl from Chicago says:
Well, if you don’t have those books already, you are quite in luck.
Both of Young’s books, The Origin of the Second Amendment and The Founders’ View of the Right to Bear Arms are on sale ($15 each) until the end of the month.
See posts here for summaries and book information:
http://onsecondopinion.blogspot.com/
Order from Amazon ... the Origin:
http://www.amazon.com/gp/offer-listing/0962366439/ref=dp_olp_new?ie=UTF8&condition=new
And the Founder’s View:
http://www.amazon.com/gp/offer-listing/0962366471/ref=dp_olp_new?ie=UTF8&condition=new
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December 24, 2009, 9:32 amDave Kopel’s Second Amendment Newsletter | The American Jingoist says:
[...] David Kopel The Volokh Conspiracy December 20, 2009 http://volokh.com/2009/12/20/justice-ginsburg-supreme-court-may-eventually-overrule-heller/ [...]
milquetoast says:
Read David Hardy’s analysis, eviscerating the dissent. If the dissent is going to be the basis of any future decisions, they are going to need to do a whole lot better.
http://www.cardozolawreview.com/index.php?option=com_content&view=article&id=137:firearmsinc20101&catid=20:firearmsinc&Itemid=25
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May 17, 2010, 10:37 pm