“In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.” Roscoe Pound, The Development of Constitutional Guarantees of Liberty 91 (1957).
Although Pound prided himself on being in touch with current realities, he was already being be proven wrong by the facts on the ground. The possession of efficient arms by civil rights workers (including Condoleezza Rice’s father, a Methodist minister) and of groups like the Deacons for Defense was essential to the success of the Second Reconstruction. A key reason why the Second Reconstruction succeeded and the First Reconstruction failed was that the second time, the defenders of the Constitution had sufficient arms to resist attacks by the Ku Klux Klan and other state-supported terrorist organizations.
Arms possession by the civil rights advocates in the late 1950s and 1960s did not lead to lawless gang rule. It led to the restoration of the rule of law in the South, to the long-delayed enforcement of the Fourteenth and Fifteenth Amendments.
Although Pound was sometimes cited by opponents of the Standard Model of the Second Amendment, Pound’s point was not really that the Standard Model is wrong as a matter of original intent/meaning, but simply that the Second Amendment is no longer a good idea as a matter of public policy. Pound’s view that the Second Amendment could be ignored if modern persons thought it was no longer a good idea is consistent with his general view that legislation which once would have been clearly unconstitutional could be considered constitutional in modern times, based on perceptions of changed social needs. See generally Roscoe Pound, “Mechanical Jurisprudence,” 8 Colum. L. Rev. 605 (1908).
As David Bernstein has explained, Pound argued on a broad front that judges should ignore the text and original meaning of the Constitution, so as not to impede (supposedly) beneficial expansions of government power to restrict personal freedom. Pound was no friend of the Constitution.
ChrisTS says:
Whereas, it seems, Pound was prescient about South L.A.
February 2, 2010, 6:25 pmNobody At All says:
Arriving late to this discussion, I apologize if this has also been covered: Pound wasn’t simply mistaken for being Langdell; Beck confused civil law & common law. Our revolution was steeped in British constitutionalism: no single document, but a collection of enacted laws as interpreted by the judiciary. There was no Marbury v. Madison (to my knowledge) at that time in Britain, but the “law” was certainly understood as including stare decisis, and caselaw was studied for its binding & persuasive effect by both lawyers & their apprentices.
February 2, 2010, 6:34 pmme45 says:
NOBODY AT ALL:
Those people aren’t supposed to legally have guns though.
February 2, 2010, 6:35 pmDangerMouse says:
Typical lib judge, thinking they know better than the Framers. I wonder if it’s even possible for a liberal judge to be a “friend of the Constitution”? Probably not.
February 2, 2010, 6:38 pmwm13 says:
Of course, common law methodology does permit the interpretation of a rule to progress to the point where the rule entirely disappears. So it makes sense that Pound would be a big supporter of Constitutional exposition using the common law method, since that permits the actual language of the Constitution to become a nullity over time in response to changing circumstances as perceived by judges. It seems like Glenn Beck, though perhaps a little more simplistic than the average lawprof, is basically correct on Pound.
February 2, 2010, 6:44 pmepluribus says:
DangerMouse, do you think Roscoe Pound was a judge? If so, you probably should check some facts before making your next post.
February 2, 2010, 6:54 pmNobody At All says:
I’m not making a point about originalism as an interpretive theory; all these points about Pound are well and fine.
I’m saying that this argument is orthogonal to what Beck was saying. Beck asked for Langdell, and (incorrectly) got Pound for an answer. His point was about the evolution of law, and it failed to place us within the correct type of legal system. Which, for someone who espouses the framers’ legal framework, is frankly shocking.
February 2, 2010, 6:54 pmERH says:
Ahem, Prof. Kopel surely you are not arguing that it was well armed civil rights activists who secured their rights with weapons.
February 2, 2010, 6:56 pmNunzio says:
Paradoxical that the cities with the toughest gun laws have the most gun violence, although the lack of 2 parents involved in a child’s life is really the contributing factor.
Nonetheless, do people who support these gun laws think the cities with most gun violence will become more violent without these gun laws. Seems unlikely. They will probably be as violent.
February 2, 2010, 6:59 pmepluribus says:
No, he was basically incorrect. First, he didn’t know who either Pound or Langdell were. Second, he said that up until two years ago he didn’t know anything about Woodrow Wilson. But now he “hates” him. Not surprising. I mean, the man’s name is Glenn Beck. And he advanced the absurd notion that stare decisis (a system of precedent derived from the English common law) means that that the Constitution will be ignored. Typical Glenn Beck. Outrageous opinions based on outrageous ignorance.
February 2, 2010, 7:01 pmChrisTS says:
Typical liberal, thinking facts matter.
February 2, 2010, 7:10 pmFederal Farmer says:
No, but when faced with violence, an armed person has more options…and is less likely to be injured or killed.
February 2, 2010, 7:13 pmDangerMouse says:
whoops! You’re right, epluribus. For some reason, I was confused with the judge who was ordered off the case of the millenium bomber because of his rants over terrorists getting constitutional rights. My mistake.
Pound is the guy from Harvard who just taught students to hate the Constitution. Got it.
February 2, 2010, 7:21 pmArkady says:
Uh Oh.
February 2, 2010, 7:41 pmepluribus says:
No, DangerMouse, you haven’t got it yet. Keep trying, though.
February 2, 2010, 7:46 pmNobody At All says:
I was waiting for someone to catch that. After reading Orin’s post, I thought that the comment sections of Volokh.com would soon be overrun with people yelling “orthogonal!” at each other.
So, anyway, just doing my bit to contribute to the general chaos of the blogosphere.
February 2, 2010, 7:47 pmloki13 says:
Shhhhh….. please do not ruin the pure comedy gold that is DangerMouse.
February 2, 2010, 7:50 pmbyomtov says:
Ahem, Prof. Kopel surely you are not arguing that it was well armed civil rights activists who secured their rights with weapons.
Sadly, he seems to be saying just that. It’s amazing where obsession can lead.
February 2, 2010, 7:52 pmbyomtov says:
Paradoxical that the cities with the toughest gun laws have the most gun violence,
Got data?
February 2, 2010, 8:00 pmArkady says:
:)
February 2, 2010, 8:03 pmAF says:
“efficient arms so as to be enabled to resist oppression by the government”
February 2, 2010, 8:10 pmIsn’t he talking about the right of individuals to be armed as well as the military — eg, with machine guns and tanks and nukes? While absolutists may lament the fact, there is no right to possess sufficient arms to resist the might of the government and there is unlikely to be one in the foreseeable future.
ArthurKirkland says:
After reading the “trial by ordeal” threads, I am less easily amazed with respect to the consequences of certain types of thinking.
I keep thinking those threads are part of an elaborate, two-month setup for an April Fool’s spectacular.
February 2, 2010, 8:31 pmAnonLawStudent says:
I often see this retort, typically by people with no military experience.
February 2, 2010, 8:39 pmnewrouter says:
funny how reading the works of the “woodrow wilson chair” at princeton will do that
February 2, 2010, 8:46 pmKharn says:
Even tank commanders have to climb out to use the facilities, get some food, supervise fueling/repair, chat with the local cuties, etc. A deer rifle and a good vantage point are all you need. The Liberator pistol and the CIA ‘deer gun’ were intended for giving to insurgents so they could sneak up on occupiers, fire with the barrel against the target’s body and then escape with his weapons.
The STEN submachine gun was made in more than 20 covert factories in Poland during WWII, with some parts being secretly machined in factories under Nazi control. Cruffler.com has an excellent article on their production.
Resistance against tyranny and oppression is a human right, if not an obligation, and the tools to do so are covered under the 2nd Amendment.
February 2, 2010, 8:55 pmAnonsters says:
Let me associate myself with the sane part of the thread.
February 2, 2010, 9:18 pmERH says:
Which is why the Germans collasped in occupied Europe before the Americans and Soviets rolled in.
February 2, 2010, 9:31 pmBill N says:
While the focus of the discussion has been on his concern about bearing arms, I suspect his own greater concern was a fear of “extra-legal rule which would defeat the whole Bill of Rights.” Several of his seminal writings in the early 20th century were concerned with a sense of lawlessness in the Gilded Age and early Progressive Era. This lawlessness was attributed by many legal thinkers (Pound and Taft, among others) to a breakdown of the administration of law (lengthy trials and appeals, criminals getting off on “technicalities,” etc.). I would guess that over his career he saw many issues, including gun rights, through the the prism of concerns of potential descent into lawlessness.
February 2, 2010, 9:40 pmwm13 says:
As best I can make out, the criticism of Glenn Beck is that he referred to “stare decisis” when he should have said “the common law method,” and that he may have confused an early dean of HLS (Langdell) with one of his star pupils (Pound). I guarantee you, I can find worse legal howlers in the published work of Ph.D. economists and historians every day. I also guarantee you that not one lawyer in hundred could explain the difference between stare decisis and the common law method, and not one in a thousand could identify either Langdell or Pound. So I’m unable to share the outrage of Prof. Kerr or the commentators.
February 2, 2010, 9:42 pmNobody At All says:
Give yourself some credit: you can make out better than this.
The criticism of Glenn Beck is that he apparently believes caselaw is a liberal plot. This isn’t a semantic distinction, it is one that fundamentally divides the two major legal systems of the west.
He also refers to “original intention” instead of “original meaning,” but I’m sure that he’s well-versed in originalism as an interpretive methodology, so we’ll let that one slide.
February 2, 2010, 9:51 pmkuhnkat says:
epluribus,
would you please tell me where stare decisis has been implemented in the american legal system in the Constitution, Bill of Rights, Legislated…???
It is promoted to maintain a more consistent legal system. It appears that for activist Judges it holds little ability to maintain this stability.
February 2, 2010, 10:12 pmNobody At All says:
Off the top of my head? The Judiciary Act of 1789. Run a search for “common law.”
February 2, 2010, 10:24 pmTocqueville says:
“[David Kopel] has found the enemy of American Constitutionalism and that enemy is Roscoe Pound. No, seriously. Roscoe Pound.”
No matter how he tries to spin it after the fact, Orin was completely off base on this one. The sooner her eats crow, the better.
February 2, 2010, 10:53 pmkuhnkat says:
Nobody At All Says,
I checked the url and searched as you suggested. I didn’t see anything in the context of the common law occurrences that I could see as implying anything about precedent.
I also searched for precedence, precedent, previous…
I finally read the first couple of sentences of each section and scanned the rest and again found nothing I could interpret.
I am not an expert and have not stayed in ANY motels lately, so, when I say I could find nothing in it which would apply to stare decisis, take it with a full salt shaker.
February 2, 2010, 11:01 pmfrankcross says:
wm13, you can make an assertion, but I can assert you know nothing of what you are talking about. The confusion of Pound with Langdell is a major howler. And I “guarantee” you cannot find worse factual howlers in the work of Ph.D economists. It’s easy to assert things in a conclusory fashion. I don’t think you can back up your position with evidence and reasoning. Can you prove me wrong?
As for the not one lawyer in one thousand guarantee, I’m also pretty confident that is wrong. Instead of made up assertions, how about a little evidence?
February 2, 2010, 11:12 pmNobody At All says:
Kunhkat:
In practice, stare decisis is about treating like cases alike. I cannot think of how common law could work – even in theory – without this principle. There are presumably a variety of resources that explicate the principle; I’ll leave finding the best to your discretion.
Tocqueville:
February 2, 2010, 11:48 pmThe weird thing was that Beck didn’t intend to discuss Roscoe Pound, so whatever Pound’s views on constitutional interpretation, they are beside the point. It was a mix-up. Beck wanted to make caselaw an ideological issue, notwithstanding the violence this does to the our legal system as contemplated by the founders. So let’s be honest, and call a spade a spade, and politely request that this silliness yield.
Federal Farmer says:
In the event of an insurgency by a large civilian population with small arms, the government doesn’t stand a chance. Quantity has a quality all its own.
Bombers, Jets, tanks are useless in an urban area unless you want to level it.
February 2, 2010, 11:59 pmOrin Kerr says:
No matter how he tries to spin it after the fact, Orin was completely off base on this one. The sooner he eats crow, the better.
I don’t think I was off-base at all, actually.
February 3, 2010, 12:03 amkuhnkat says:
Nobody At All,
“In practice, stare decisis is about treating like cases alike.”
Yes, I would agree that it is about a later case being handled like the precedent, or previous similar case that HAS BEEN DECIDED CORRECTLY. (who decides if it was decided correctly??)
The idea is flawed in that Judges DO make decisions that are not supported in Law. When they do, a subsequent Judge must be able to reverse, overturn, or ignore the precedent.
I believe the argument against this is that you would have chaos with Judges ignoring and over ruling each other all the time. In practice, most Judges would NOT and Congress has the ability to Impeach Judges who do become problems!! I believe there are similar remedies for the lower levels.
February 3, 2010, 12:48 amJohn Skookum says:
Pound’s view that the Second Amendment could be ignored if modern persons thought it was no longer a good idea is consistent with his general view that legislation which once would have been clearly unconstitutional could be considered constitutional in modern times, based on perceptions of changed social needs.
People like this deserve no more than to be lynched by a mob, but I would settle for their being hounded out of public life after a dose of tar and feathers. They are the enemies of everything I hold dear.
February 3, 2010, 12:52 amJohn Skookum says:
Bomber pilots and tank drivers are not an infinite resource. Inside every fearsome machine of war is a soft pink center that has to eat, sleep and piss once in a while.
I would also note that the loyalty of an American military force ordered to turn its guns on its fellow citizens cannot be blithely assumed by those giving the orders.
February 3, 2010, 12:55 amRicardo says:
The people of the Gaza Strip are pretty heavily armed, not just with ordinary firearms but also with mortars, rockets and other high-powered explosives. How did they do against the Israeli Army in the most recent war?
February 3, 2010, 1:20 amLarryA says:
The ones with the weapons quite often protected those who did the protesting. Search for “Deacons for Defense and Justice.” It doesn’t take a lot of force to stand up to bullies.
In 2006 there were sixteen U.S. cities between 50,000 and 70,000 population, about the same size as Washington, D.C. Concealed carry was prohibited in two, D.C. and Madison, Wisconsin. Possession of firearms was sharply restricted in two, D.C. and Baltimore, Maryland.
Baltimore had the highest rate of violent crime, D.C. was second, and Madison was fourth. Of the ten cities with the lowest violent crime rates, all were right to carry and none had ownership restrictions beyond the federal ones.
Numbers also count. Attacking 80,000,000 gun owners with 500,000 warfighters would be odds of 160:1, a suicide mission.
True, the Germans didn’t collapse in
occupiedformerly disarmed Europe before the Americans and Soviets rolled in. OTOH they never even attempted to invade well-armed Switzerland.The Founding Fathers knew what they were doing.
February 3, 2010, 1:33 amNobody At All says:
First, excellent use of all-CAPS and exclamation marks.
Second, binding stare decisis requires a court to follow an incorrectly decided case. A circuit court binds a district court, the Supreme Court binds a circuit court.
Third, a court may overrule itself; this is – as you point out – problematic. Some guideposts can be found – e.g. typically, stare decisis adheres more firmly in a statutory case than a constitutional case because other branches of government may overrule an incorrect statutory ruling – but clearly, the question of when a court may overrule an incorrect ruling is something that common law courts have confronted since time immemorial.
All of which is to say: calm down. Let’s feel free to point out when Glenn Beck fails to identify the general legal structure that our country has adopted, and not fear that “caselaw” and “precedent” are liberal plots.
February 3, 2010, 1:35 amLarryA says:
Whatever you think of the Second Amendment, note that a person who believes as Pound does would be just as ready to overturn any other part of the Constitution he disagreed with. As in, “The law should be whatever I think it should be.”
February 3, 2010, 1:43 amJames N. Gibson says:
Put another way, you can certainly put down a rebellion in a city by nuking the place. The only problem is you can’t do much with the place afterwards. And heaven help you if the city you nuked was the place where your tanks were being built.
February 3, 2010, 2:35 amThomas Jackson says:
Beck was correct in his observations regarding the judicial systems disregard of past case law when it suited the agendas of the politically motivated. Its really disappointing to have the uninformed vomit forth the concept that stare decisis has been utilized in the past fifty years by the Supreme Court.
Caselaw is simply as Beck points out one method the Left uses to ignore the intend of the farmers of the Constitution. Worse it is demonstrated by the ignorance of the American people regarding their own Constitution and their inability to understand how and why the government should work in a certain fashion. Caselaw provides nothing of merit because one has to study the constitution not the last case regarding a law. Those who ague that Beck is wrong are an example of why our justice system is such a joke today, a living system where anything goes.
Pound was just a very typical example of a jurist who could justify ignoring the 2nds amendment, just as we now have jurists who would destroy the first and 10th amendments.
February 3, 2010, 5:01 amepluribus says:
Thomas Jackson, you have managed to compress an amazing amnount of misinformation into a single post. It would appear that you don’t understand the Constitution or the rule of stare decisis. It would also explain your admiration for Beck, who regularly compresses an amazing amount of misinformation into a single show. I am amazed at how many people confuse entertainers like Beck with serious commentators.
February 3, 2010, 6:18 amKharn says:
ERH:
The Warsaw Ghetto Uprising is a good example of what those that want to fight can do with scant resources, until their entire city is burned to the ground. The French and Dutch resistance movements were hampered because of their lack of arms and the Nazi’s tactic of collective punishment.
Now consider a nation like the US, where there are 200+ million firearms, that is a much different ball game than Europe.
February 3, 2010, 7:43 amPintler says:
Should those numbers be multiplied by ten?
February 3, 2010, 8:32 amPintler says:
Guerrilla armies don’t win wars: Saigon was captured by conventional NVA forces, Napoleon’s armies were chased out of the Iberian peninsula by a British/Portuguese army, and so on.
Guerrilla forces do keep the conventional opponent from winning. The Israeli army can temporarily control any place in Gaza, the German army could temporarily control any place in Yugoslavia, and the US army could temporarily control any place in SVN. That’s not the same thing as winning.
February 3, 2010, 8:56 amegd says:
Beck does have a point…somewhat.
If a decision goes against the Constitution (lets use Roe v. Wade for a particularly inflammatory example), and the decision is enforced, then the Constitution has been overruled by the Supreme Court.
Stare decisis ensures that the bad case law is enshrined in American jurisprudence. We can’t overturn Roe because it’s settled law.
The problem with this argument is twofold.
First, it ignores the role of the Supreme Court, established in Marbury v. Madison, to interpret laws and how they conform to the Constitution. Ultimately, Marbury rests on the position that the Constitution means whatever the Supreme Court says it means. If the First Amendment has it’s own Darby moment and is read to be a truism which doesn’t affect Federal power, then the First Amendment is without force.
Second, it ignores the practical value of stare decisis. Stare decisis provides lower courts with instructions as to how to rule. If we eliminate stare decisis than a Constitutional challenge can be raised to any law in any court, and that court can apply its own interpretation of the Constitution to the law. This would throw the judicial system into chaos, and result in a lot of summary reversals by higher courts, eventually resulting in a de facto vertical stare decisis. Stare decisis also provides consistency and continuity in judicial opinions, making it possible to live in our society without worrying that the law will drastically change next term.
Beck is basically (and clumsily) advocating Justice Thomas’ approach, every Constitutional issue raised must be viewed without relying on stare decisis. There’s a rational basis for Thomas’ view, but I don’t think it’s workable.
The alternative to Thomas is the approach by most of the rest of the justices throughout history, adhere to stare decisis when you like the result and disregard it when you don’t (and be called a ‘judicial activist’).
February 3, 2010, 9:22 amMark Field says:
Things I never knew until I read this thread:
1. Glenn Beck is a better legal scholar than Orin Kerr.
2. Stare decisis is a liberal plot against the Constitution.
3. Causation runs only one way when it comes to gun control laws.
I’m guessing the contributors to this thread must also be the participants in this poll.
February 3, 2010, 10:03 amFederal Farmer says:
The first two read like argument by oversimplification. However, your third has merit.
I’ve long argued with both sides of the gun control debate regarding causative effects of gun laws (be they restrictive or permissive). Crime is affected much more strongly by other factors such as enforcement and incarceration rates.
That said, the affects either way on crime rates are besides the point. The point is, when faced with violence, are you better or having the option to use deadly force or not? There is evidence that using firearms (even if that only means brandishing) defensively results in a better outcome than any other form of resistence or capitulation. Plus, logic dictates that outcome as well.
February 3, 2010, 10:14 amERH says:
But if you’re really a heartless tyrannical government you’ll do just that.
February 3, 2010, 10:18 amERH says:
But in the end sadly they lost, and they would have lost no matter how many rifles and sten guns they had because if your enemy has superior weaponry and is willing to use it, you’re out of luck.
February 3, 2010, 10:19 amFederal Farmer says:
Yes, and raise even more insurgents. Meanwhile, government officials better start living in bunkers.
February 3, 2010, 10:22 amDon Miller says:
While we have greatly limited peoples ability to purchase machine guns, there are a significant number of privately owned machine guns in the US.
As far as Tanks and other armored vehicles, I am right now sitting about 10 miles away from a military surplus dealer that has a tank, several apc’s and a couple armored cars for sale, right now.
The cannon on the tank is treated a “destructive device” by the BATF and requires special permits to sell and own. But those are available. Each shell that the cannon fires is treated as an additional “destructive device” with the same paperwork requirements.
Artillery, like howitzers and mortars, is available as well. Blackpowder muzzle loading cannons are available with no restrictions on their sale. Check out the Cannon Superstore
Private ownership of Tanks, Artillery, and machineguns is rare, not because can’t be done, but because it is expensive.
February 3, 2010, 10:25 amPubliusFL says:
A heartless tyrannical government with a sizable, loyal, reliable military. Starting off with an armed, vigilant populace makes getting there a lot more difficult.
February 3, 2010, 10:36 amJames Craig Ziegler says:
Kent State?
February 3, 2010, 10:38 amwm13 says:
I don’t think anyone said that. The argument is that Glenn Beck’s statements are an unsophisticated expression of a perfectly defensible argument which a sophisticated legal scholar could endorse. That is, Glenn Beck stands on the same footing as Dahlia Lithwick or Al Sharpton (people perhaps more ideologically congenial to Mark Field), as a popularizer and simplifier of legitimate arguments. I personally think Prof. Kerr wastes his time responding to unsophisticated arguments made in the popular media, though it is of course his time to waste if he chooses.
February 3, 2010, 10:42 amNobody At All says:
First, let’s get Justice Thomas right (btw, this is something that Orin, but not Glenn Beck, has mentioned before):
Second, let’s not pretend that Glenn Beck said more than he did. It is admirable to find the best position that can be argued; but when the issue is that Glenn Beck fails to identify the two basic legal system of the west, and strives make caselaw an ideological issue (while – incredibly – speaking of his fealty to the founders!), it is time to draw the line. I suspect that Justice Thomas, having little patience for such shenanigans, would concur.
February 3, 2010, 10:42 amFace the Facts says:
Don’t make me laugh. Kent State was a smattering of well-deserved rifle fire directed at rock and bottle throwing snots by outnumbered and inexperienced young national guardsmen.
If they’d moved through the campus razing buildings and triple-tapping every student in sight, then it would be an example of what you’re calling it.
February 3, 2010, 11:01 amNobody At All says:
Good lord.
February 3, 2010, 11:10 amMCM says:
Almost every (or maybe every single one, I can’t remember) state legislature voted to adopt the then-extant British common law, in the aftermath of the revolution. The US has always used a common law methodology. “Activist judges” have been part of our legal tradition for over nine hundred years. The adoption of the Constitution exists within that context.
February 3, 2010, 11:11 amGordo says:
As David Bernstein has explained, Pound argued on a broad front that judges should ignore the text and original meaning of the Constitution
You mean, like the idea that an amendment written to guarantee the expressive rights of individuals could be morphed into the same right for multi-billion dollar corporations? Just like the founders intended?
February 3, 2010, 11:31 amMark Field says:
Gosh, you nailed my ideological sympathies. How’d you do that?
No, Beck does not stand on any such footing. Putting aside his factual error, the notion that the common law method of jurisprudence is somehow (a) liberal or (b) unintended by the Founders or (c) unconstitutional is laughable.
Cherry-picking perhaps: “Caselaw is simply as Beck points out one method the Left uses to ignore the intend of the farmers of the Constitution.” But I didn’t oversimplify it.
Maybe not precisely that, but pretty close:
“No matter how he tries to spin it after the fact, Orin was completely off base on this one. The sooner he eats crow, the better.”
February 3, 2010, 11:46 amwm13 says:
True, but the Framers were also heavily influenced by a Coke-inspired, Whig ideology which claimed to be restoring the ancient constitution and did not acknowledge, much less valorize, the evolutionary knowledge of common law jurisprudence.
(Obviously, just as all lawyers know who Langdell and Pound were and are laughing at Glenn Beck on that point, everyone here is familiar with Coke’s constitutional theories.)
February 3, 2010, 11:56 amgeokstr says:
Or, maybe even, that a single clause, like “To regulate Commerce”, can be twisted into absolute power over everything that can be remotely tied to business, or capitalism, or selling, or buying, or making, or growing, or transporting, or insuring, or eating, or pretty much everything else Karl M. himself would have wanted control over? Just like the founders intended?
Because all us intelligent intellectual types just know they were really slavish devotees of huge leviathan-like governments, right?
I love it how the left suddenly discovers that the DWEM “founders” even existed, let alone had anything substantive to say, only in those rare circumtances that it might be in their favor to do so. Otherwise it’s Katy bar the door when it comes to novel discoveries of long-forgotten emanations from wispy penumbras.
February 3, 2010, 11:58 ambyomtov says:
In 2006 there were sixteen U.S. cities between 50,000 and 70,000 population, about the same size as Washington, D.C. Concealed carry was prohibited in two, D.C. and Madison, Wisconsin. Possession of firearms was sharply restricted in two, D.C. and Baltimore, Maryland.
Baltimore had the highest rate of violent crime, D.C. was second, and Madison was fourth. Of the ten cities with the lowest violent crime rates, all were right to carry and none had ownership restrictions beyond the federal ones.
I’m having a hard time making sense of your “data.” Why a narrow range of cities? And what is that range? Madison has a population between 200 and 250K, not between 50 and 70K, or 500 and 700K if that’s what you meant. It has a very low violent crime rate, about five murders a year up through 2006.
And what about the other types of regulations? And how about a source, while we’re at it.
In fact, the highest violent crime rates in the country are in the South, which is not noted for the strictness of its gun control laws.
February 3, 2010, 12:00 pmNobody At All says:
I’m not sure how one somehow knows about Coke’s influence on american revolutionary constitutional law, without understanding how americans argued from British common law. The argument was that Britain was violating their rights, as explicated by the common law. So, you get it exactly backwards. Good job.
But nobody is holding Glenn Beck to this standard; I wouldn’t fault him for not knowing Coke or american revoluationary constitutionalism.
What he’s faulted for here is talking about how to restore a ’65 Mustang, when he apparently doesn’t know if we drive on the right side of the road, or the left, or whether said Mustang has 4 wheels, or is a tricycle. Basic stuff.
February 3, 2010, 12:16 pmegd says:
The question is, do new decisions in the law make previous decisions “unconstitutional?”
Citizens United effectively overruled Austin. Does this mean that Austin was an unconstitutional decision? Beck would argue, yes, Austin was an example of overreaching, unconstitutional action by the Supreme Court. Their decision was adverse to the 1st Amendment, as later determined by the court in Citizens United.
But stare decisis, if applied strictly, would require that Citizens United (or Lawrence v. Texas, Brown v. Board, or a number of other important cases) be upheld.
Under that theory, stare decisis would be unconstitutional because it would mean that the Constitution is not the Supreme Law of the Land.
The problem is, as I pointed out earlier, that Beck doesn’t think this through (to respond to Nobody At All, I think that Thomas does have a good understanding of this conflict).
So yes, (a) and (b) are laughable. Stare decisis was a well understood element of the common law at the time of the founding. It’s not unintended and it’s not a liberal plot (although it can be used as a liberal device, see any questions about stare decisis during Republican Supreme Court appointment hearings). But there is some basis to argue that it is unconstitutional.
We require our judges to be hypocrites and political stooges. But it has worked for the last couple hundred years.
February 3, 2010, 12:39 pmERH says:
I would point you to Grozny. Flattening it didn’t spawn more insurgents it broke the majority’s will to fight.
February 3, 2010, 12:57 pmRailroad Gin says:
Well, they are still living in the Gaza Strip so apparently not too shabby.
This thread is pure silliness. Glenn Beck’s ongoing meme is that modern liberalism is fundamentally at odds with the founding principles of this country. Its basically a simplified version on Jonah Goldberg’s “Liberal Fascism” which itself is a simplified version of what other scholars have been saying for years. Beck being Beck, he constantly messes up details which make him easy fodder for criticism by the intelligensia. The more interesting question is whether the basic thesis is correct. Let Keith Olberman worry about Beck. This site should have more important things to worry about. The basic point that Pound was 1) hostile to the Constitution and 2) an influential thinker on our legal system seems basically sound to me.
February 3, 2010, 1:31 pmNobody At All says:
If, after viewing that clip, you think that Beck had *anything* to say about 1) the views of Roscoe Pound or 2) the influence of Roscoe Pound on our legal system, then he’s got a bridge to sell you. (Edit) The issue is that he cannot distinguish common from civil law, or locate the United State of America within the correct paradigm. Not exactly a “detail.”
February 3, 2010, 1:37 pmMCM says:
For now. Check back in 15-20 years. “All this has happened before, and it will all happen again.”
February 3, 2010, 1:40 pmChrisTS says:
But by that time we will all be so suspicious of every post that the April Fools extravaganza will be orthogonal to its purpose.
February 3, 2010, 1:40 pmChrisTS says:
P.S. I have always thought that ‘orthogonal’ when used by philosophers means “Yes, it is relevant in a way to my project, but not in a way I choose to further recognize.”
February 3, 2010, 1:42 pmFederal Farmer says:
So what are my neighbors going to think when they obliterate half my block to take out my house in Chicago? Those weapons can’t be used to fight the kind of warfare you’d have to engage in in order to suppress an insurgency in the midst of average America. Americans won’t stand still for that. You’d have to clamp down on civil liberties so much that even more folks will get agitated. The mere presence of an armed populace makes the whole thing moot. That is the beauty of it.
February 3, 2010, 1:46 pmVehical Driver says:
It doesn’t matter. The Israeli military is supplied and funded by Israel. The Israeli military could attack the people of the Gaza strip, without destroying its own infrastructure.
If the U.S. government where to fight any large scale battle against its own citizens, it would be killing the very citizens it depends on for survival.
February 3, 2010, 1:58 pmChrisTS says:
How did we get from Roscoe Pound (or Langdell,or stare decisis, for that matter) to a dispute as to whether armed citizens are likely to overwhelm an armed government?
This thread has turned into something like dialogue from Dr. Strangelove.
February 3, 2010, 2:07 pmluagha says:
I will mention that the Germans had to recall substantial troops from the front as well as committing elite SS battalions (an average of 2000 troops daily) in order to put down the uprising. Most military historians I have read consider that amount of troops and armor and effort militarily significant to the course of the war, shortening its likely duration by something like six months.
Not useless by any stretch of the imagination. One may lose a valuable pawn but that pawn still helps win the game.
February 3, 2010, 2:14 pmERH says:
Honestly they won’t care because at this point you’re not living in America anymore and all the vast majority of people will be concerned with is staying alive.
February 3, 2010, 2:40 pmERH says:
Sheesh under that lock we should be fighting the Germans again any day now.
February 3, 2010, 2:41 pmLarryA says:
Oops. “500,000 and 700,000″
Dark early is not the best time to call on memory.
February 3, 2010, 2:47 pmFederal Farmer says:
My point is that if we “stick to our guns” literally and figuratively we will never get there. The best war is the one you avoid fighting.
February 3, 2010, 2:47 pmERH says:
Wow funny how the brain works. I was working on my bike lock, that should be logic.
February 3, 2010, 2:59 pmSay What? says:
Oops. “500,000 and 700,000″
But, as was pointed out Madison’s population is neither between 50 and 70K or 500 and 700K. It is 228,000. The Madison metro area is 561,000, but if you are counting metro areas DC is much larger (5.3 million) and has gun laws that range from very liberal to very conservative (no matter how you define those terms).
BTW, how do you explain New York City, Honolulu or the fact that the crime rates in Chicago and most of the major cities in Texas (the gun-tot’nest state of them all) are about the same?
February 3, 2010, 3:11 pmMCM says:
Actually that’s a great counter-example because it shows how not oppressing people, especially defeated enemies, generally works out in your favor. Look what the Russians did to the Chechens after World War II, when they deported EVERY Chechen from Grozny. Look at the centuries of Russian military action in Chechnya (and notice how it’s “centuries”). Yeah, that worked out great.
If we had tried deporting every German from Berlin, then yes, we WOULD still be fighting them any day now. Of course, maybe our “not quite as brutal” counter-insurgency techniques are more likely to be successful.
February 3, 2010, 3:18 pmFederal Farmer says:
Comparing Chicago crime rates to other cities is problematical given the difference in how they are reported. Don’t Snitch!
Also, you can’t compare Chicago-Metro area because most of Illinois does not collect crime statistics consistent with FBI standards.
February 3, 2010, 3:27 pmERH says:
I’ll give you that point but the SU oppressed the East Germans for 50 years.
February 3, 2010, 3:53 pmPintler says:
Gun laws and crime rates are uncorrelated.
n.b. – one wants to be careful comparing crime rates; there are significant deviations from uniform reporting. Murder rates are likely to be the most uniformly reported.
February 3, 2010, 3:59 pmFederal Farmer says:
To be truthful, I haven’t researched what, if any, RKBA they had in the DDR.
February 3, 2010, 4:02 pmSay What? says:
Also, you can’t compare Chicago-Metro area because most of Illinois does not collect crime statistics consistent with FBI standards.
Illinois does not collect rape statistics consistent with FBI standards, so the overall crime rate is slightly inconsistent. It is easy to compare all the other individual statistics and see that they are similar.
February 3, 2010, 4:27 pmbyomtov says:
BTW, the Madison metro area, population 562,000, had 2.5 cases of murder/non-negligent manslaughter per 100,000 in 2008. This is a very low number, even lower than Boston’s 2.6.
February 3, 2010, 5:13 pmMatthew Carberry says:
Pintler is correct.
The argument that pro-gun freedom persons like myself need to make is that, if hyper-restrictive to lawful gun ownership and gun carry cities like Chicago have about the same crime rate as fairly non-restrictive in both departments cities like Houston, than what is the point of restricting a fundamental right?
The fact remains that multiple CDC and DOJ comprehensive studies over decades have failed to show a positive correlation between any gun control law and crime rates.
Lawful gun ownership, as secured by existing Federal law, and lawful gun carry simply doesn’t harm public safety or increase crime at all. Nor does restricting lawful ownership beyond existing Federal regulations, or banning / heavily restricting lawful carry, increase public safety or decrease crime rates.
There may be “solutions” to crime and violence but there is no statistical, nor even any particularly logical, evidence that gun control is one of them.
February 3, 2010, 5:21 pmGordo says:
And I find it amusing when alleged conservatives who want to go back to the “original intent” of the founders conveniently forget about this shibboleth when they think it will open the floodgates for corporate money to buttress candidates and issues that they find congenial.
February 3, 2010, 5:51 pmLarryA says:
My apologies. No more posts from laptops at 1:30 AM.
I was dragged into a panel just after Heller and this was part of my research. The opposition point was that “cities like D.C. need handgun bans to control crime.” Since we were discussing the capital I looked at all U.S. cities of similar size, 500,000 to 700,000. (D.C. being 572K). There were 14, according to the 2000 Census figures, including Milwaukee, Wisconsin, not Madison.
Of the fourteen cities in 2006 D.C. prohibited handguns, Baltimore had restricted licensing of handguns, and Wisconsin had no concealed carry.
According to FBI 2006 crime stats Baltimore had a murder rate of 42.4/100,000. Then it was D.C. at 29.5, Memphis TN at 22.6, Milwaukee at 17.3, Charlotte NC at 15.3, Nashville TN at 14.7, Boston MA at 12.7, Oklahoma City OK at 10.9, Denver CO at 9.2, Fort Worth TX at 9.2, Seattle WA at 5.3, Austin TX at 3.0, Portland OR at 3.8, and El Paso TX at 2.3.
Not being a global warming scientist, I have an Excel spreadsheet if anyone wants a copy.
February 3, 2010, 6:30 pmjack burton says:
And if the person doing maintenance on the airplane which was going to do the nuking also had a grandma who lived in the city what are the odds that the plane will ever see the city, let alone landing safely anywhere?
February 3, 2010, 7:42 pmjack burton says:
Yeah… kinda like the idea that the Fourth Amendment written to guarantee the rights of individuals to be free from unreasonable searches and seizures could be morphed into the same right for multi-billion dollar corporations? Just like the founders intended?
The Feds should just be able to rummage thru any level of any corporation with access to any bit of info or material in the company with no concern for such silly things as “warrants” or “reasonable cause.” It’s not like they are people or anything.
February 3, 2010, 7:56 pmTurk Turon says:
The STEN submachine gun was made in more than 20 covert factories in Poland during WWII, with some parts being secretly machined in factories under Nazi control. Cruffler.com has an excellent article on their production.
The STEN MG was also made in Denmark under Nazi occupation, although Denmark was nominally “neutral”. Over 500 STENs were made in Danish underground workshops during WWII.
February 3, 2010, 9:26 pmkuhnkat says:
All those who believe in Stare Decisis please answer a couple of questions for me.
What is the 9th Circuits record of overturns??
Why does it continue to be the most overturned court??
Why does not Stare Decisis prevent this high rate of overturn??
February 3, 2010, 10:37 pmGene Hoffman says:
For those who are trying to claim that Mr. Kopel is not well thought out, you really actually haven’t read the history.
First, the Deacons for Defense were a very real, and very effective movement that provided armed security for SNC, SCLC, and CORE as well as Dr. King himself. Wikipedia summarizes the scholarly work here: http://en.wikipedia.org/wiki/Deacons_for_Defense . The original source material is Hill, Lance. The Deacons for Defense: Armed Resistance and the Civil Rights Movement. http://www.amazon.com/exec/obidos/ASIN/0807857025/thevolocons0d-20/
Not mentioned, but entirely relevant is the 1946 use of arms to secure voting rights in McMinn County, Tennessee: http://en.wikipedia.org/wiki/Battle_of_Athens_%281946%29
The right to arms has secured individuals against local tyranny in the US during the last 60 years.
-Gene
February 4, 2010, 2:12 amMCM says:
Yeah, how’d they do with that?
February 4, 2010, 9:26 amPintler says:
As well as the Secret Service did for JFK et al. Defending against assassins is a tougher gig than defending against a lynch mob, which is in turn harder than defending against a mugger.
February 4, 2010, 10:59 amGerbilsbite says:
Sorry, are you really trying to claim that gun ownership among private citizens is what restored the rule of law to the south in the 50s-60s? Because that would be an asinine premise. The strong central government saved black southerners: private arms ownership is what got them dragged from their homes and hanged. Even for blatant revisionism you’re reaching. Not every good thing to happen in American history can be traced to the good guys packing iron, Dave.
February 4, 2010, 2:16 pmPintler says:
To be devil’s advocate: A couple dozen klukker friends and I have been tippling and decide to go lynch someone. If he is unarmed, we can have our way with him at essentially zero risk to ourselves. Maybe one of us will get a black eye or something, but we’re going to win the fight, and none of us are going to the hospital.
Give our victim a 30-30 and the equation changes. Sure, we’ll all get our guns too, and we’ll still win, but there is a non trivial chance one or two of us will get a chance to martyr ourselves for the Klan. Our victim has nothing to lose by fighting, after all, so we can’t hope to use numbers to intimidate. IMHE, facing that personal risk of dying, tonight, just might have a nontrivial effect on the number of folks willing to help with the lynching.
It’s the same reason armed victim/armed rapist is worse for the rapist than if neither are armed.
I’m not claiming that, but if I was black in the Jim Crow south, I’d think that keeping a box of 30-30 cartridges around was a good idea, just in case.
February 4, 2010, 3:56 pmLarryA says:
If you don’t want to do the reading, there’s a movie.
Tell that to Medgar Evers.
Time after time the local and federal government decided to act after blacks made it clear they could resist. Lynching could easily be kept quiet. Cops dead in Klan robes made national news.
I remember a B&W photo of MLK on a balcony with a black man carrying a lever-action rifle standing guard behind him, but I haven’t been able to find it online.
February 5, 2010, 2:16 amGene Hoffman says:
What exactly do you think caused a former Southern Democrat who was then President to make the politically unpopular decision to send the US DOJ in to crack down on the racist local governments? Do you think that Johnson was in favor of the second reconstruction?
-Gene
February 6, 2010, 1:13 amm Steiling says:
Hello there, are u A mate lately purchased a old smaller motorbike, not even positive what make it is! My other friends are now mocking him and stating that its a scooter, not a motorbike! I want to clear this up but what realy is the difference between a motorbike an a scooter? Can you assist?
February 13, 2010, 8:05 amDave Kopel’s Second Amendment Newsletter | The American Jingoist says:
[...] The Volokh Conspiracy February 2, 2010 http://volokh.com/2010/02/02/roscoe-pound-on-the-second-amendment/ [...]
March 4, 2010, 1:52 pm