Based on a quick read of the oral argument transcript, a few things stood out:
1. The Privileges or Immunities arguments never really got off the ground. None of the Justices seemed in favor of that approach, at least based on the questions. (Justice Thomas, as is his custom, asked no questions.) Only about 10-12 minutes of the questioning even concerned the P or I route, and the questioning seemed mostly focused on trying to understand the nature of the claim. For my VC co-bloggers and many VC commenters who hoped today would signal the beginning of the libertarian constitutional revolution, there doesn’t seem to be much room for optimism.
2. Justice Stevens, often the liberal Justices’ primary strategist, seemed to have a plan to join on the theory of incorporation by Due Process but then to water it down as applied to the states. This revisits an old debate on the incorporation doctrine about whether incorporation applies the Bill of Rights to the states “jot for jot” or only applies the core protections of the right to the states. Given Stevens’ questioning, my guess is that the liberal Justices may try to band together and offer Kennedy a less protective version to apply to the states. I read Justice Kennedy’s questions at the bottom of page 13 and on pages 53-54 to suggest he is pretty skeptical of that approach.
3. I thought Justice Ginsburg had an interesting point in her questioning at page 9, when she suggested that an originalist approach to Privileges or Immunities would have the Court adopt a right that was pretty antiquated — specifically, it would give men a lot of rights, but deny those rights to women. Gura’s response suggested, as best I can tell, that the Court should be originalist in its identification of the right but be modern in its interpretation of them. Thus, for example, the Court should say that there is a right to contract based on the original understanding, but should reject the original understanding of this right to contract in favor of a more enlightened standard (such as one that does not discriminate by gender). To my mind, that’s one of the oddities of Gura’s originalist argument: It is 100% originalist but only 50% of the time. That is, it is originalist with some aspects of the Fourteenth Amendment, but then argues that the Court should not be originalist with other aspects, such as the preexisting Due Process cases on the books. I understand the appeal of this approach from a libertarian perspective: libertarian rulings get stare decisis protection while non-libertarian precedents don’t. But unless you believe, as does my co-blogger Randy, that the Constitution if properly construed mandates libertarianism o’er the land, it seems like a pretty result-oriented approach.
J. Aldridge says:
Does it bother anyone that whenever any of the amendments of the bill of rights was discussed during the congressional debates on the 14A that it was the result of the P&I’s of United States citizens and not under due process of law?
March 2, 2010, 3:41 pmHIV says:
I don’t think libertarians should be orginialists. How on Earth can one be an originalist and support Lawrence? Or Loving? In truth, if one wants to be an originalist in the mold of Scalia, you must support rampant majoritarian violations of rights. So libertarians may be results-oriented? So what? Liberty is better than anything else. So my fellow libertarians should stop worrying and love the Living Constitution.
March 2, 2010, 3:46 pmruuffles says:
Kennedy’s predecessor, Justice Powell, split the difference on whether juries have to be unanimous in criminal trials. Right now, only Oregon and Louisiana allow non-unanimous verdicts.
http://en.wikipedia.org/wiki/Apodaca_v._Oregon
March 2, 2010, 3:48 pmtroll_dc2 says:
Gura gives me a sense that he was surprised by some of the questions. He did do a moot court or two, didn’t he?
March 2, 2010, 4:43 pmomar bradley says:
I loved how Breyer opened up by talking to Gura about how the 2nd amendment is different because it involves human life, and how states should have a right to protect human life. And how in the 1st amendment they often decide in favor of human life.
Wow. Given his and the liberals’ abortion decisions how can he say that with a straight face?
I wish Gura had said “After reading Stenberg I’m glad to see that you’re concerned about human life all of a sudden”
And then later on he talked about his imaginary chart and James Madison??? And how certain things are high and should be protected but the lower things shouldn’t? I guess he think child porn is pretty high on his imaginary chart based on the FSC case. And this is someone on the Supreme Court? Talking about imaginary charts?
March 2, 2010, 4:48 pmTom Huff says:
I cannot speak for Alan, but I don’t read his response that way. I think he was saying that the text of the 14th Amendment Citizen Clause included both men and women, and therefore the *original* 14th Amendment protected the Privileges and Immunities of both men and women. (True, state and local governments failed to recognize the Privileges/Immunities rights of women for quite some time thereafter, but this practice was in violation of the 14th Amendment.)
I don’t think there is anything particularly unusual about this argument. I mean, I think most originalists (certainly Justice Scalia) agree that school segregation violated the equal protection clause, even though it existed at the time the EP clause was ratified. And most originalists probably also agree that the 1798 Sedition Act violated the First Amendment (which had been adopted just 7 years earlier). Sometimes a government adopts a new constitutional provision and simply fails to live up to it for a while.
March 2, 2010, 4:49 pmOff Kilter says:
HIV: “I don’t think libertarians should be orginialists. How on Earth can one be an originalist and support Lawrence? Or Loving?”
Maybe because libertarians are originalists who take the 9th amendment as part of the original document…
March 2, 2010, 5:01 pmAndrew says:
Well, I view the oral arguments today as simply an extenuation of the Court’s tragic and unlimited usurpation of power under the rubric of “substantive due process.” Justice Scalia basically now says he’s okay with it. Chief Justice Roberts, however, made this interesting remark:
Whether that remark will actually amount to anything when the opinion comes out, I know not. In Orin’s blog post above, he writes:
Again, I want to say how much I regret that not a single blogger at the Volokh Conspiracy has once even mentioned a key argument in the NRA’s brief, reiterated in several of the amicus briefs: that it is very possible to incorporate under the Privileges or Immunites Clause WITHOUT OVERTURNING SLAUGHTERHOUSE.
Anyway, I guess we’re on our way to a decision cementing for all time the bogus notion of substantive due process. This despite the fact that the whole thing is a lie.
March 2, 2010, 5:04 pmBored Lawyer says:
I have to agree with Tom Huff. Where in the 14th Amendment does it say that women are excluded?
For that matter, where in the P&I Clause in Art. IV does it exclude women?
March 2, 2010, 5:06 pmFederal Farmer says:
Extending any given right to previously disenfranchised minorities such as women or blacks does not have to be addressed in P+I or DP because it is properly done via the Equal Protection clause.
March 2, 2010, 5:08 pmMatt says:
Professor Kerr,
Could we understand Gura’s approach as identifying original principles and then utilizing the experience of the last past 142 years as data in an effort to faithfully apply those original principles? In one sense, that could be consistent with an originalist approach, no?
Isn’t that basically what Bork argued to defend the proposition that Brown is consistent with original understanding? Or does that just go too far to be considered strong-form originalism?
I wish Thomas would speak up on applying P/I, since you know he wants to go there!
March 2, 2010, 5:10 pmSuperSkeptic says:
I can understand why Steven’s (and Breyer too) can take this route (since they dislike the 2nd Amendment, obviously), but why invoke incorporation (“jot for jot”) and the spectre of unanimous jury trials (pg. 18) like it is some kind of bogeyman to be feared?
Wait wait, Justice Stevens: so if I want a 2nd Amendment, I have to be tried and convicted of crimes by a unanimous jury, too? No way!!! The Horror!!!
I guess establishing that the right will at least sometimes be enforced is the first step toward enforcing it with some kind of teeth…
March 2, 2010, 5:20 pmJ. Aldridge says:
Except Thomas agrees with Slaughterhouse that the Privileges or Immunities Clause was not intended “as a protection to the citizen of a State against the legislative power of his own State.”
I don’t think it is a given Thomas will agree to incorporate the 2A via due process, either.
March 2, 2010, 5:31 pmAndrew says:
When and where did Thomas say that? There was dicta in Slaughter-House that said this:
I’m not aware that Justice Thomas has endorsed that dicta.
March 2, 2010, 5:33 pmMatt says:
This isn’t originalism that you are espousing — maybe it is some form of textualism, but you are allowing your personal views to inform your understanding of the meaning of the words of the 14th Amendment.
March 2, 2010, 5:34 pmMatt says:
Thomas didn’t say that he agrees with the Slaughter-House Cases, but that the Court should “look to history to ascertain
March 2, 2010, 5:39 pmthe original meaning of the Clause.” Saenz v. Roe, 526 U.S. 489, 522 (1999).
HIV says:
If someone were to ask the Framers of the Ninth Amendment whether it included the right to gay sex or interracial marriage, I think they would answer with a resounding no. Unless, you could find a founding source that said the Ninth Amendment should be interpreted to evolve or expand right, gay sex and interracial marriage are not consistant with original meaning. That is why the meaning of the Constitution should change along with a changing society.
The Founders may have said they believed in liberty and equality, but in practice, they didn’t. Instead of perpetuating their blind spots, we should implement their vision.
March 2, 2010, 5:42 pmjnheath says:
Oren, re your point #3, that’s like saying that originalists are inconsistent if they admit that the 4th Am applies to computers.
March 2, 2010, 5:48 pmgeorge weiss says:
a) i think there will be incorporation too based on the argument-but i am less sure than OK about the possibility of the liberal wing (partial incorporation like the criminal jury trial right-the only partially incorporated right) coming into play…there are two ways to read AK here-one way is he was asking if there is any good authority for that b/c he didnt think there was and he wanted to confirm that-another way is that he didnt care and was asking for help writing the opinion of partial incorporation.
one doctrinal problem w/ partial incorporation in this case is that it really isn’t before the court…Chicago has a de facto ban-so whether incorporation is partial, full, or non existent-there isn’t going to be a good reason to reach the issue. if its full or partial-you must reverse-if not you affirm. But if Kennedy wants this compromise to maintain his swing vote status this may not bother him…
b) to defend the consistency of the libertarians from OK’s attack-I would say that the theory is like this
-P or I should be upheld under any theory (original or otherwise) because slaughterhouse is wrong to prevent the phrase from having ANY meaning and that’s wrong originally, textually, AND functionally. The only problem is stare decisis. if it is upheld though -since there is no other case law giving it a meaning-it should be an original meaning.
BUT THEN
-if no P or I, relying on due process incorporation, we have normally given that phrase a, non original, functionalist view and created total DP incorporation. Since both approaches are within reason-(unlike the court’s approach to P or I where the court’s approach is not reasonable) and the court has held for the functionalist view-then we should just use the functionalist view.
whether that is a good argument or not-it would be consistent.
March 2, 2010, 5:49 pmMatt says:
That’s because he didn’t.
“Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.” Saenz v. Roe, 526 US 489, 527 (1999) (Thomas, J., dissenting).
March 2, 2010, 5:49 pmBob from Ohio says:
Too bad the court will continue the anti-constitutional fiction of “incorporation”.
The expansion of judicial power increases and federalism takes another blow.
March 2, 2010, 5:57 pmJ. Aldridge says:
But that would be his conclusion since he believes the 39th Congress adopted Justice Bushrod Washington’s understanding of the P&I’s in Corfield v. Coryell.
March 2, 2010, 5:59 pmJoe - Dallas says:
I am obviously in the minority – My take on whether any of the first 10 amendments should be incorporated either selectively, jot by jot,via the due process clause or the PI clause is being too cute but virtually the only way to get around the 1833 case Barron v Baltimore which held the constitution and the bill of rights only applied to the federal government and not to the states.
My conflict with that case is that the states were a party to the signing of the constitution (or more precisely the governments of the states were parties to the constitution) and therefore inconceivable to consider that the state governments would not be bound by the very document which they had just radified.
The failure to incorporate all the amendments in their entireity leads to the absurd result that an individual may be found not guilty of murder in state court but convicted in federal court of the same offense (different statute but same crime/event) and not have a double jeopordy issue.
March 2, 2010, 6:00 pmOrin Kerr says:
Oren, re your point #3, that’s like saying that originalists are inconsistent if they admit that the 4th Am applies to computers.
That is wrong. Women existed before 1868: In fact, I believe we’ve had them almost as long as men. But whatever the right to contract meant, it did not give women equal rights as men.
More broadly, originalism as a theory does not provide an answer to whether the Fourth Amendment should apply to computers. Because computers did not exist at the time, you would need to ask whether the level of generality of the general public understanding of the rule was understood to encompass was technology dependent or indepenedent. Whether computers should be included or excluded depends on the level of generality of what you think the original understanding was of the original rule, to the extent there was one.
March 2, 2010, 6:04 pmRoland Nikles says:
So, they stick with substantive due process analysis and find that the right to bear arms is part of the “concept of ordered liberty?” That, to me, says the originalist argument has run its course. If the second amendment is not binding on the states, per Slaughterhouse Cases and 139 of constitutional decision making, then where do we find the gun ordinances at stake here prohibited? In the penumbra of due process?
Substantive due process, as Scalia admits, is not consistent with originalist doctrine. If your view is that, for example, Roe v. Wade lacks a constitutional foundation because the constitution does not mention privacy or abortion, wouldn’t you have to affirm the circuit court in McDonald because the constitution does not prohibit the states from regulating the possession of guns?
In applying substantive due process, why is the right to carry a gun so fundamental as to be implicit in the concept of ordered liberty? Breyer’s question to Gura about the effect of a legislative determination that gun control would save hundreds of lives seems to me very germane. If we got rid of the things we wouldn’t need them for self defense. Absent the 2nd Amendment being binding on the states via the 2nd Amendment, why should guns not be subject to regulation via the democratic process? If it’s not written in the constitution (the premise here if the P&I clause does not incorporate)the argument “we like guns” seems less than fundamental. The argument “we need them for self-defense” is a factual issue that is better suited for determination by the legislature than the courts.
March 2, 2010, 6:05 pmSuperSkeptic says:
Here’s another Stevens gem I thought I’d share:
(emphasis added.)
Talk about watered down – I can’t even taste the whiskey anymore.
Imagine, if you will:
First Amendment freedoms: Only in your home.
Third Amendment freedoms: Stevens approach actually might work for this one. Broken clock; twice a day.
Fourth Amendment freedoms: Only in your home.
Eighth Amendment freedoms: Only in your home.
Stevens is such a cherry-picker.
March 2, 2010, 6:11 pmSteven Den Beste says:
Having failed (in Heller) to prevail with their creative reading of the phrase “the people” in the 2nd Amendment, seems as if the liberals are now trying for a creative reading of “shall not be infringed”.
What next? A creative reading of “arms”?
March 2, 2010, 6:17 pmRoland Nikles says:
But SuperSkeptic:
Isn’t the point that the right of free speech, for example, is fundamental to the republic? With free speech you get the whole ball of wax binding on the states because it is part of the concept of ordered liberty. On the other hand, the republic gets along just fine with gun control at the state and local level. So First Amendment everywhere, subject to the recognized time, place, manner restrictions; 2nd Amendment maybe only in the home.
March 2, 2010, 6:25 pmConstitutional Doubt says:
As to point three, it appears that Gura is endorsing abstract originalism. That is, he suggests that (some) Constitutional rights were originally understood as abstract principles, as a opposed to unchanging specific rights, that could change to fit societal consensus. Thus, his argument that we should identify rights at an abstract level does not contravene originalsim, rather it endorses abstract originalism instead of static originalism. It is abstract originalism 100% of the time, and static originalism 0% of the time.
March 2, 2010, 6:28 pmNunzio says:
This case ultimately boils down to the the right of law-abiding adults to own and use for self-defense in their home a firearm with no more than 9 bullets that can be reloaded easily but not too easily.
To make this right effective, we will need some prophylactic rulings a la Miranda holding that law-abiding adults will be able to transport the weapons, though unloaded, along with necessary ammunition (no more than 2 clips) from the store where it’s purchased and to and from a shooting range where one can lawfully hone their aim, at least once a month, to make the right effective.
We will also need a few manual-of-arms rulings from the Court saying what firearms can and cannot be banned, and which ammunition can and cannot be banned.
March 2, 2010, 6:32 pmTom Huff says:
Hmmm . . . I’m afraid I don’t follow.
The text of the P or I clause protects “citizens of the United States,” not just men. Unless you believe that women in 1868 were non-citizens (an interpretation that can’t easily be squared with the Citizenship Clause), then I don’t see how the original public meaning of the P or I clause can be understood to exclude women.
(I think this is both textualism and originalism.)
March 2, 2010, 6:37 pmSuperSkeptic says:
They are the First and Second Amendments to the Constitution in the Bill of Rights, without which we would not have the Constitution. I would say that’s “fundamental to the republic” enough right there. The language of both is the same: “shall not be infringed”. You only distinguish the one from the other because … well why? Assuming the doctrine of “incorporation” and the state of the law as it is, it is your burden, Sir.
March 2, 2010, 6:49 pmMJG says:
Did anyone else think this was a really weird way for Alan Gura to end an argument that he was likely to win (even if his theory was not being accepted)?
I didn’t get the impression that the Court was looking to “water down” the second amendment; if anything Stevens’s attempts to get it to do so were unheeded. And it seems snippy to butt in to basically tell the Chief to “perhaps… look to text and history.”
I wasn’t there, however, so maybe it didn’t sound that way live.
March 2, 2010, 6:55 pmJay says:
I’m pretty sure incorporation doesn’t have any bearing with the way the ex post facto clause (which is in Article I, s. 10, not the Bill of Rights) has been interpreted with respect to prosecutions by multiple sovereigns. No one argues the EPF clause doesn’t apply to states; the current law is just that it doesn’t substantively mean what you want it to.
March 2, 2010, 7:02 pmLotsa Luck says:
Sez you…
March 2, 2010, 7:05 pmRailroad Gin says:
If the Court is going to reject P&I, I sure hope they provide a meaningful discussion of stare decisis. That is especially true if Scalia writes the opinion. He favors upholding Slaughterhouse based purely on stare decisis and not on originalism. He is also willing throw in the towel on substantive due process even though he was once its leading critic. So even for the justice that was once the lone voice in the wilderness for originalism, stare decisis now trumps originalism. It would be nice if he explains why that is so.
It’s a footnote but some defense attorney in Oregon or Louisiana might want to challenge non-unanimous juries. Reading the transcript, it seems that may be the red-headed stepchild under any theory of incorporation. Although, under Miller (the 1A one not the 2A), state law can be considered in determining what constitutes obscenity. I am surprised neither Feldman nor Stevens mentioned this, as I think it would have bolstered their position.
Its notable how Breyer tried to frame the policy argument. According to him one side says guns save a lot of lives and the other side says its not really that many. It would be more acccurate to say that the other side says that gun control actually costs lives by disarming the wrong people. Breyer is free to take whatever side he wants in the debate, but its not too much to expect that he be intellectually honest in framing the debate.
I have read Feldman’s argument three times and I find much of it inscrutable. Maybe he was simply trying to argue in the alternative, but he kept shifting between positions so much that its totally confusing. Was he saying that only the militia-centric aspect need be incorporated or that the self-defense aspect need be incorporated? Maybe he was just phoning it in and waiting to cash out his retainer. I’m sure he knew Chicago’s law was doomed.
The more I read this transcript the more I wonder why the Court even mentioned P&I when granting cert.
March 2, 2010, 7:24 pmohwilleke says:
Gura’s big privileges and immunities problem was that it wasn’t an incorporation argument, it was a natural rights argument. He wasn’t arguing that the Second Amendment ought to be incorporated to apply to the states. He was arguing that the right to bear arms was one of a large array of rights, including lots of private law economic rights that were part of the common law. Effectively, he would constitutionalize the laws of property, contracts, family law, inheritance, etc. through the privileges and immunities clause.
He also didn’t very effectively address the concerns raised by the Justices about total incorporation, the most significant of which is the mayhem that could be caused if every state in the nation were required to use grand juries to bring charges for every single felony (about half do not) as a matter of constitutional law.
March 2, 2010, 7:25 pmG.R. Mead says:
I would have taken issue with Justice Breyer’s assertion in arguing with Mr. Clement ( p. 26–27) that the “militia-related clause” is “light years different” from “the right to have a gun to shoot a burglar.” Mr. Justice Breyer could not be more wrong on the nature of the militia clauses and their function and structure — from the text itself. The proper answer to that is a straightforward and historical one based on the structure of the divided (and limited) sovereignty laid out in the Constitution.
We often talk about divided sovereignty as between the States and the Federal government — forgetting that in our system “the people” are also limited sovereigns and in two aspects: individually — wherefore they have inalienable rights, (and privileges and immunities); and collectively, wherefore they form (and if need be, dissolve) their forms of government on which they have conferred the balance of their sovereignty.
Within limits the property owner is sovereign on his territory, and his defense of the laws against burglary is not merely his personal defense but partakes directly of the militia function, as the microcosm or kernel of the individual sovereignty that when exercised collectively IS the Militia.
Lawfully shooting a burglar on one’s own property is “executing the laws of the Union” (Art. I Sec. Cl. 15) and hence a textually demonstrable militia function — even when conducted by an isolated member of that militia — hence, to perform that function, the individual citizen must have the right to arms — as militia — to preserve his function — AND his sovereignty (within its narrowed limits).
Structurally, the system we have has three legs — State sovereign, Federal sovereign and the individual sovereign. Only the militia clauses yoke all three together — a point Justice Scalia came very close to making in dispute with Mr. Feldman (at p. 41–42). Tying those two arguments together would have gone very far in bolstering the structural reason for the P&I clauses.
March 2, 2010, 7:28 pmohwilleke says:
The Justices (particularly Kennedy) didn’t have much time for the “ordered liberty” argument against incorporation, but this isn’t because the argument isn’t valid on the merits.
The “ordered liberty” idea was basically comparative in the cases where it was applied. If other democracies manage just find without certain constitutional institutions, like the grand jury, civil juries, unanimous criminal juries, etc., then it ought to be O.K. for U.S. states to do the same. Certainly, Japan and Britain manage to have ordered liberty and democratic regimes despite draconian gun control. That doesn’t mean that it is the best approach, but “ordered liberty” is fundamentally a proof of concept idea. If it is possible to have ordered liberty without the right, it shouldn’t be incorporated. The fact that ordered liberty has survived so long in the United States without regular federal court intervention to protect the right to bear arms also argues powerfully that federal protection of the right to bear arms via incorporation of the Second Amendment isn’t necessary to ordered liberty.
Even if one believes that we have a civilization that is coming crashing down and doing to hell in a handbasket at the moment, it is pretty hard to pin that problem on lack of federal protection for the right to bear arms.
If the Justices want to be honest in this case, they really need to throw out the “ordered liberty” standard entirely and replace it with a “fundamental right” standard or something more abstract, or make a procedural right v. a substantive right distinction. Maybe the “ordered liberty” test only applies to court procedural rights, while the “fundamental right” standard applies to substantive rights.
March 2, 2010, 7:38 pmA Few Thoughts on the McDonald Argument | Liberal Whoppers says:
[...] the original post: A Few Thoughts on the McDonald Argument [...]
March 2, 2010, 7:44 pmRoland Nikles says:
Lotsa Luck:
Yes, true, I sez. Speech is fundamental to a free and democratic society. On the other hand the right to carry a loaded Saturday Night Special in a crowded bar without a permit is not. The U.S. is unique in the Western world in its gun culture. We love our guns. As a result we have a huge number of deaths caused by guns. Way out of proportion to England, Canada, France, Germany, etc. Should we be able to do something about that through democratic action?
The gun culture, is just that: culture. We have a car culture, but noone (I know of) would argue that the legislature should not be able to regulate cars. A friend just returned from Maui and complained about traffic. Would it be constitutional for Hawaii to build light rail around the perimeter of Hawaii and restrict the use of cars on the Island? Maybe some of our professor friends here can shed light on this. I havent’ researched it myself. I think gun control is similar.
Why do you say the right to own a gun is so fundamental to the concept of ordered liberty that we must interpret the constitution as prohibiting regulation of guns? Why are guns so fundamental that they should be beyond the democratic process? SuperSkeptic thinks it’s self-evident because it’s the “second” amendment binding on Congress (not the states-per our hypotesis). But it’s a serious question. Why do you think?
Self-defense? This argument is necessarily undercut if the facts are that unregulated gun culture results in more deaths. That is the Breyer point and seems to me correct. We normally leave these types of determinations to the democratic process.
Militias? That is the point the minority in Heller would have bought into. You can regulate individual gun ownership as long as it doesn’t interfere with well regulated militias. What’s that? Armed Forces reserves? National guard?
I don’t think individual gun ownership to stage an armed rebellion against the government is what the framers had in mind.
What other reasons can you think of why gun regulation should be beyond the democratic process?
March 2, 2010, 7:48 pmSuperSkeptic says:
Roland Nikles, nothing here is “beyond the democratic process”. In fact, I would make the argument that the justices trying to “water down” the 2nd Amendment are in fact acting ultra vires as to the “democratic process”.
Moreover, “the regulation of guns” is by no means going to be precluded by the 2nd Amendment’s imminent incorporation. I fear you are conflating “regulation” and “prohibition” – and merely the latter is what is most likely to be prevented by the Court. We are about as close to an “absolutist” 2nd Amendment as we are to a 1st.
March 2, 2010, 7:57 pmSuperSkeptic says:
Unfortunately, you seem to have fallen for Breyer’s faux-federalism argument. Breyer is a supporter of incorporation in other contexts of clearly enumerated amendments of the bill of rights, which begs the question why you differentiate the 2nd for incorporation purposes, a question which you keep avoiding (remember, it’s your burden).
What other reasons can you think of for why it shouldn’t be likewise incorporated – other than “well i just don’t want to” and that it undermines the “democratic process”? Because neither of those are sufficient.
March 2, 2010, 8:04 pmG.R. Mead says:
Ahem.
March 2, 2010, 8:05 pmBrett Bellmore says:
You can argue that, yes. The problem for that argument is that the contrary conclusion got written into the highest law of the land. Where it stays until repealed.
March 2, 2010, 8:14 pmohwilleke says:
I don’t buy the “individual sovereignty” idea, but I do think that now is the time to look for a structural reason to motivate how the scope of the Second Amendment.
To get to a reasonable theory of the Second Amendment, I think you need a few pieces:
(1) The Second Amendment is located in a political document, in a part of that document that protects individual rights against state abuse of power,
(2) A major design principle of the U.S. Constitution was to control “factions” from gaining control to the detriment of other “factions,”
(3) There is no individual right or legal duty of law enforcement and prosecutorial officials, in Anglo-American law to prosecute every crime or guarantee the public safety of individuals (this remains good law), the only means the People have to affirmatively have criminal laws enforced is political, they can elect people who promise to do all that can to use the power of the state to prevent private violence,
(4) police departments weren’t invented until the late 1800s, the closest analogy in urban areas to a police force was often a militia (by analogy as a sort of volunteer police department, a bit like the analogy of a volunteer fire department v. a profesional one),
(5) the United States Constitution rather than recognizing a power to overthrow the government as the Declaration of Independence did, recognized a strong state interest in self-preservation and gave the federal goverment emergency powers in times of war, insurrection and public danger (e.g. suspension of the right to be indicted by a grand jury when in active military service, authorization for quartering soldiers in homes in times of war, the Republican government clause, acknowledgement of the crime of treason in Article III, authorization for states to enage in war in cases of imminent danger, prohibition on state military forces, suspension of the writ of habeas corpus during times of “rebellion”, the Congressional power to call out the militia to suppress insurrections (and to require the militia to be trained according to the discipline Congress prescribes), prohibitions on foreign influence or mixed loyalties by persons holding offices of trust and profit). The militia’s job was to put down rebellions and insurrections and more generally to maintain public order, not to participate in rebellions and insurrections.
So, what is the political purpose of the Second Amendment? It is protect individuals from private violence, at time when the government refuses to use its power to stop. It is to protect communities and activists and anyone else who has lost favor with the law enforcement and prosecutorial establishment from lynch mobs and brown shirts. It is to protect a pioneer community from an Indian raid when the government soldiers who are supposed to protect the settlement don’t show up. It is to prevent the kind of ethnic cleansing private violence that militias in Baghdad engaged in. It is a band aid solution to a particularly acute case of governmental failure through inaction both deliberate and as a result of incompetence.
In this conception, the Second Amendment is rooted in mitigating political failure and inaction by particular mid-level state actors, rather than a right to active insurrection against the state as a whole, and self-defense is at the core of the right, rather than on the periphery.
This conception also doesn’t necessarily imply an unenumerated private right to self-defense against other private persons. In this conception, the purpose of the right to bear arms is to allow you to do for yourself what the government could but has failed to do for you. You don’t have a constitutional right to self-defense; you have a constitutional right to mitigate your damages in the event of the failure of the state to protect your state granted legal rights. Just as we describe some lawsuit plaintiff’s as private attorneys’ general, the right to bear arms is about making people private law enforcement officials in limited circumstances.
March 2, 2010, 8:14 pmTammy Cravit says:
According to Wikipedia, several early drafts of the 2nd Amendment defined the militia as “composed of the body of the people”. And, it would seem (at least to me) that if the 2nd Amendment was construed to refer only to the country’s military forces, that would render it surplusage when set against Art. 1′s statements concerning the right of Congress to establish armies etc.
Reading some of the early versions of the 2nd Amendment on Wikipedia, it strikes me that we would all be much better off had the Bill of Rights incorporated one of the wordier but less ambiguous versions of the 2nd Amendment.
March 2, 2010, 8:15 pmohwilleke says:
Someone did. The U.S. Supreme Court just denied cert on the question in a case out of Oregon raising that question in 2008 or 2009.
The only unincorporated element of the Bill of Rights that would have any significant impact outside of Louisiana (in Oregon, there would simply be a change in jury instructions in the existing system) is the right to indictment by a grand jury in prosecutions for a capital or infamous crime.
The infamous crime clause hasn’t been litigated since the 1930s, because federal criminal procedure calls for indictment in every felony and in every misdemeanor punishable by hard labor or more than a year of incarceration, which has been held to be constitutionally sufficient. But, if the U.S. Supreme Court interpreted the minimum standard for infamous crimes to be considerably more serious than just any old felony, this wouldn’t have to be the logistical nightmare it would be if implemented as it is at the federal level. For example, if infamous were defined as all crimes graded by a state as one level less serious than a capital crime (i.e. one for which the death penalty was available) which would be Class 2 felonies in Colorado, a constitutional grand jury requirement (and by implication total incorporation) could be workable.
March 2, 2010, 8:27 pmdisintelligentsia says:
What is disconcerting to me is that in the lengthy dialogue with Mr. Feldman regarding regulation of the right, not once was the actual text regarding the limits of regulation used. At no point were the words “shall not be infringed” or even the word “infringed” used. Was that word cut out of the Court’s copy of the Constitution?
I’m afraid that the Court will OK “reasonable” regulation (although Roberts seemed inclined to save the issue of what regulations were reasonable to later cases). After all, so long as we’re calling the regulation of the right “reasonable” it must be reasonable and nobody can object to something that’s called “reasonable” after all. Of course a “reasonable” regulation is one which you can get a judge to agree to. Isn’t this why the amendment says that the right “shall not be infringed”?
March 2, 2010, 8:36 pmRKV says:
“You can regulate individual gun ownership as long as it doesn’t interfere with well regulated militias.”
Let’s break that down a bit…
Militia: legally defined under 10 USC 311 as all able bodied males between 17 and 45, and a few females, excepting some federal officials. Last updated in 1956. Strong connection between the legal definition of the militia dating back to the Militia Act of 1792. Nota bene: it’s a right of the people, not of the militia. The people being a superset of the militia.
Well regulated: Per Heller “the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training.” I.E. capable of performing their statutorily defined missions, including possessing the weapons necessary to perform the missions – see Article 1 Section 8 US Constitution “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” Nothing there about hunting or sports, is there? Think Switzerland – a machine gun in every citizen’s home.
Regulate individual gun ownership: so every able bodied male citizen, who are the members of the miltia, should be able to own weapons suitable to defend the country against invasion. I.E. machine guns, like the current issue M-16 or M-4 rifle or the M-9 pistol, etc.
Bottom line, right hand corner, such a regulation amounts to no regulation at all. Nor should it be. Americans are the guys who told the [hereditary] nobility to go to hell. For my part, ditto elected nobility.
March 2, 2010, 8:37 pmAnon21 says:
Yup. I think U.S. gun policies are far too permissive, and if I were re-writing the Constitution the Second Amendment would be gone in short order. But so long as it stays, we’re bound by it, and bound to make good faith efforts to construe it in the same way we construe other guarantees of individual rights.
March 2, 2010, 8:40 pmAnthony says:
Well, they may have been thinking of community gun ownership to stage an armed rebellion against the government, but I’m pretty sure armed rebellion against the government was exactly what they were thinking of. Of course, this rather logically leads to it being perfectly fine to regulate handguns (being as they are useless for the purpose) and illegal to regulate artillery, tanks, etc.
March 2, 2010, 8:46 pmHans Bader says:
Orin Kerr rightly warned earlier that the Privileges or Immunities argument was a likely loser, and some readers got mad at him for pointing it out. (although I agreed at the time).
But he was right. Don’t blame the messenger for giving you an accurate message just because it depresses you.
Due Process is the much more obvious hook, in a judiciary that places great weight on precedent, and not so much on the Constitution’s plain language.
March 2, 2010, 8:56 pmRoland Nikles says:
SuperSkeptic:
I think you misunderstand what the bill of rights is about. It protects individual rights by restricting what the majority can accomplish through majority rule (legislation). You also are forgetting that the assumption for the due process analysis is that the second amendement does not apply. If it did apply we would not have to worry about due process or the P&I clause.
Brett Bellmore notes that the righ to bear arms is written into the “highest law of the land.” Well, no. The question is whether it’s binding on states. As to states it wasn’t written into the highest law of the land. The second amendment when written, and as written, binds Congress only. The court is now being asked to imply a new limitation on state power that is not written in the constitution.
Substantive due process, as I understand it (and I’m not a consitututional scholar so if someone wants to set me straight cite me a case that says different and I will stand corrected) does not mean the 14th Amendment gets “incoroporated” like we incorporate documents in a contract. When we incoroporate a document in a contract by reference, that document becomes part of the contract. On the other hand, when the Supreme Court incorporates the first amendement through substantive due process, it is not saying that the words of the first amendment are directly binding on states: it is saying that the concept of free speech (as expressed in the first am) is so fundamental that no state may infringe on that right. The 14th Am, of course, does not reference any of the Bill of Rights. So incorporation through substantive due process is much closer to a natural rights argument (borrowing a concept) than an “incorporation by reference” concept in the contracts sense.
The distinction is important because it means that the court must always ask what is the right, why is it so important, and what does it mean? They can’t simply refer to the BOR and leave it at that. The court has to define it anew. [By contrast, the P&I argument would be just like contractul incorporation] So you never incoroporate wholesale unless the court determines that the right in question is of a fundamental eneough nature.
G.R. Meade:
Intersting letter from Jefferson. He was a revolutionary, after all. Of course, this letter is four years before the Bill of Rights, and the framers chose not to make the 2nd Amendment binding on the states, and Jefferson was a big proponent of states rights.
The idea that the purpose of the second amendment is for individuals to bear arms for an armed rebellion, in any case, is inconsistent with the notion of ordered liberty. Do we really want the Supreme Court to say that extremists of all stripes should have a constitutional right to bear arms for the purpose of overthrowing the government? If that’s a constitutional right then, I suppose legislature would not be able to pass any laws to prohibit such an insurrection!
March 2, 2010, 9:04 pmAnon21 says:
Not to mention some co-Conspirators. IMO, wishful thinking is a fairly serious failing in legal thinkers like Prof. Barnett.
March 2, 2010, 9:04 pmIncorporation & Gun Rights « Random Musings of a Deranged Mind says:
[...] in Heller v. DC apply to the states as well as the federal government. For commentary, see Volokh Conspiracy and SCOTUSBlog. (See also this series of posts @ VC; also this list of briefs in the case.) As [...]
March 2, 2010, 9:07 pmLotsa Luck says:
Roland Nikles says:
Big “if” there…
March 2, 2010, 9:13 pmLotsa Luck says:
Roland Nikles says:
I wish you anti-gun nuts would stop putting words in our mouths. Even your worst nightmare, strict scrutiny, doesn’t do that.
March 2, 2010, 9:20 pmRoland Nikles says:
Lotsa Luck:
Take a look at http://ije.oxfordjournals.org/cgi/reprint/27/2/214.pdf/ Gun related deaths in the U.S. are eightfold what they are in Europe and Canada. So there is no “if” involved in the proposition that our gun culture causes more deaths. And what do you say to the point that such factual determinations, and how to handle such problems, are appropriately left to the states and the democratic process?
In order to put limits on state power to regulate guns you have to uphold the right to a gun as some fundamental personal right. It’s not written in the constitution . . .so what do you want the Supreme Court to say? But more importantly, why?
March 2, 2010, 9:28 pmLotsa Luck says:
Buy a copy of John Lott’s “More Guns less Crime.”
March 2, 2010, 9:37 pmThen go get into a dueling cherry-picked statistics Internet shootout.
Face it, your side lost the utility argument long ago, you lost the individual right argument two years ago and you are about to lose the incorporation argument.
Mene, mene, tekel, upharsin!
Andrew says:
Further to my comment at 5:33 pm, I’d just like to point out that the Court has long rejected the dicta in Slaughter-House which suggested that perhaps the Privileges or Immunities Clause might only protect visitors from out of state, rather than protecting a state’s own citizens. For example, here is what the Court said in United States v. Cruikshank:
Indeed, when the Fourteenth Amendment says that no state may abridge the privileges or immunities “of a citizen of the United States,” it is obvious that a state’s own citizen is a citizen of the United States.
March 2, 2010, 10:01 pmEric J. says:
Handguns were at the first American Revolution and they will certainly be part of the next one. Come to think of it, World War I was started with a FN Model 1910 pistol.
Handguns are suboptimal weapons for prosecuting a war, but they seem excel at expressing a lethally serious intent to rebel.
March 2, 2010, 10:10 pmMichael Zeleny says:
I have covered the relevant historical arguments here. Briefly, available evidence suggests that greater homicide rates in the U.S. are due to deeply ingrained cultural forces, without lending any support to their principal causation by the higher rates of gun ownership.
March 2, 2010, 10:11 pmGuy says:
If the Constitution is to be interpreted as a coherent whole, one would think that the rights as protected by the Bill of Rights must be interpreted consistently with the Equal Protection Clause, similar to how there is debate about whether the 14th amendment expands the Suspension Clause to custody pursuant to state law.
Alternatively, if one takes a natural law approach, then the shape of the rights is not entirely determined by the original understanding, but whether or not they are protected by the Constitution may be.
March 2, 2010, 10:43 pmRedlands says:
Got to this late and I apologize if this has been asked already, but in light of the report that the Court spent so little time on the P & I issue and all Justices, save Thomas of course,and perhaps Kennedy, seemed dismissive of it, why then did the Court ask the Parties to address it in their briefs? Really, were they all just sitting back laughing their a$$es off as they wrote out the invitation to brief it, saying something like, “This’ll have them chasing their tails a while, won’t it guys?!”
March 2, 2010, 10:55 pm“Yeah, come oral argument we’re gonna have some fun with this. I can hardly wait to see Gura’s face when we collectively pound him into the turf!”
Anon21 says:
Orin had a decent potential explanation for this a while ago. As I recall, it dealt with cert granting strategy–trying to keep Thomas’ options open or some such.
March 2, 2010, 11:01 pmchris says:
Yet from a statistics standpoint every time a city, county, state or nation implements stronger gun control, violent crime goes up in that area.
March 2, 2010, 11:14 pmMike Rudolph says:
“I’m not saying you can’t own a gun. I’m not saying you can’t carry a gun. All I’m saying is, you can’t carry a gun in town, now what’s wrong with that?”
March 2, 2010, 11:54 pmG.R. Mead says:
It is not a reach. While we think of these in terms of “rights” the Declaration makes the point eminently clear — these “unalienable rights” of men are “endowed by their Creator” — as in “divine right”, i.e. – an attribute of sovereignty — but limited sovereignty, as are the state and the federal sovereigns. The militia as the body of “the people” are expressly charged with “executing the laws of the Union” i.e. — the maintenance of the “ordered liberty” in conjunction with the other sovereigns — which militia serves all three levels of concern to the Constitution, individual, State and Federal. Congress can control them the President can order them and the States can appoint their officers. A fairly balanced concept, actually, on the law enforcement side anyway, which takes advantage from the closeness to community. Militarily, the professionalization required of warfare made them less effective — unless they became more militarized, and less congenial as law enforcement — so the two functions are now much more separate, institutionally and operatively.
Not analogy at all. Police ARE militia, historically and functionally, and developed from it — the Bow Street Runners in Britain and the Boston Watch here — and at about the same time. (Marshalls and sheriffs serving the judicial process have a slightly different historical development as servants of judicial process — but functionally they have all converged in characteristics). In the Founders terms, they are “select militia” which were deemed potentially problematic — but not expressly disallowed. The military functions of militia (the National Guard) have just been progressively differentiated from the law enforcement functions.
Exactly — but as the citizens armed are militia, the private and public interest are one as long as they are service of the law.
March 2, 2010, 11:57 pmG.R. Mead says:
Look at total homicide rate.
As Archie Bunker told his daughter Gloria: “So little goil, wouldja feel better if they wuz pushed outa windows?”
Mexico’s intentional homicide rate is about twice ours on average — and they have fairly strict gun control. Texas’s rate is two thirds and Arizona’s is 70% that of Mexico and they have virtually no gun control at all.
Europe (unlike us) is like a test case in sociobiology — they killed off massive cohorts of most warlike members of their populations in two successive generations, and now, three generations later are less much murderous, generally speaking. Hmmmm….
March 3, 2010, 12:17 amJohn Herbison says:
Here’s hoping that SCOTUS does not make hash of the Second Amendment in the same manner that it has of the First.
The “secondary effects”
March 3, 2010, 1:01 amdoctrinefiction, if applied to the Second Amendment, could be invoked willy nilly to support almost limitless regulations.disintelligentsia says:
Sure, we have more gun deaths, but not all deaths would be avoidable or would you necessarily want to avoid them. First, over half of all gun deaths in the U.S. are from suicide. A person despondent enough to take their own life can find another means of taking your own life. Look to Japan – they have an absolute ban on private ownership of guns but their suicide rate is over twice that of ours (24.4. per 100,000 / 11.1 per 100k). France is 17.0/100k, the EU as a whole is 11.2 – again, higher than ours. Somehow, without guns, they still manage to have suicides. What about justified killing while defending oneself? Not something I would necessarily want to avoid — I would rather the rapist die then the victim being raped. In a country without the right to self-defense these deaths would not be a part of the “stats.”
All deaths, whether homicide or suicide are better viewed through the lens of a country’s culture – not the number of weapons available to the populace or how strictly they are regulated. While we do have a higher homicide rate than many other industrialized nations, it has to be put in a cultural context rather than knee-jerk blame the guns mentality. Unlike Europe, we have a “war” on drugs that drives much of the youth and gang violence – much as prohibition drove gang violence during the 20s. Likewise, if you look at South American countries, they tend to have low suicide rates because, being Catholic, there is a strong social stigma and disapproval of suicide because it is a venal sin for which the person cannot be forgiven. However, in Japan suicide has no such cultural taboo but rather can be viewed as redeeming and virtuous through the historical practice of sepuku (“hari kari”).
March 3, 2010, 2:26 amAlphecca » McDonald v Chicago: Opening Arguments says:
[...] and here [...]
March 3, 2010, 5:33 amcboldt says:
– Here’s hoping that SCOTUS does not make hash of the Second Amendment in the same manner that it has of the First. –
March 3, 2010, 8:11 amI used to hope that, then I read Heller and a few District and Circuit cases that use Heller. If SCOTUS doesn’t make hash of it directly, the lower courts will, and SCOTUS will sit on its thumbs, “cert. denied,” just as it did when the Circuits made hash out of Miller and Presser.
Nick42 says:
The oral argument rendered in LOL-speak:
http://www.politicsgunsandbeer.com/2010/03/02/my-summary-of-the-oral-arguments/
March 3, 2010, 10:46 amjrose says:
Thus, for example, the Court should say that there is a right to contract based on the original understanding, but should reject the original understanding of this right to contract in favor of a more enlightened standard (such as one that does not discriminate by gender).
Orin, if you change the second “original understanding” to “original expected application”, I think you have Balkin-style originalism, which I find persuasive.
March 3, 2010, 11:12 amPete says:
The strangest point made was by Justice Breyer. He suggested that even clear constitutional rights, as in the First Amendment, usually yield when risk to life is involved. But where is he on abortion. Life not merely at risk but certain to be forfeited, but it is out weighed by an unspecified right to privacy which then yields a right to abortion not contemplated by any of the signers of the constitution. Apparently, life in balance on the other side means nothing to Breyer as long as he is finding a political right never mentioned in the Constitution. The irony was palpable and he did not even see.
March 3, 2010, 12:27 pmAnthony says:
There is little question that using a gun during an attempted homicide dramatically increases the chance of success. Ditto for attempted suicide. Social factors seem far more relevant to how often people try to kill each other than how often they succeed. Of course, there is a plausible argument that the presence of guns reduces the frequency of attempted homicide (and other violent crimes), since it also ups the risk for the attacker.
March 3, 2010, 12:58 pmrmd says:
If you haven’t already, stop whatever you’re doing and go read that. It’s like the Spock-with-a-goatee version of a VC post.
March 3, 2010, 1:25 pmjrose says:
I’m fairly certain Breyer would argue the consideration of a risk to life applies only to a person, and a fetus is not a person.
March 3, 2010, 1:26 pmzippypinhead says:
Unlike some SCOTUS arguments, it was striking how clearly several of the black-robed ones (the Justices, not the Nazgul) telegraphed their positions. While it’s most likely there will be one majority opinion and one dissent, there is some potential for fracturing, with up to four separate opinions being authored:
1. Incorporation through the due process clause is a done deal. DP will likely get an outright majority of votes, but at minimum it will be adopted as the judgment of the Court in a plurality opinion. I assume the Vegas bookies have now shut down betting on this outcome because the odds are just too one-sidedly prohibitive.
2. Justice Thomas may concur in the judgment with a separate opinion musing about P/I incorporation, but I think he’ll be writing only for himself.
3. The interesting dispute will be between full incorporation of the Second Amendment versus partial incorporation of just the “core.” Justices Stevens, Breyer, and probably Sotomayor will try to limit the scope of incorporation to the “core,” through either a concurrence or a dissent, but they won’t carry the day. Whether their position is styled as a concurrence or a dissent will be a tactical decision, depending in part on how sweeping the majority opinion is, and how they believe they can most effectively keep alive some hope for eventual adoption of a relatively lenient standard of review.
4. Ginsberg may go for full incorporation, but with greater latitude for “reasonable regulation” as permitted by Heller. There’s an outside chance Kennedy might join (or author) such a concurrence rather than sign on to a broader majority opinion.
March 3, 2010, 2:04 pm———-
As for what is likely to become of Chicago’s ordinances in the McDonald opinion: I suspect that – except for the outright handgun ban that WILL be struck in the same way it was in Heller - some of the challenged ordinances are going to be remanded for further proceedings and full development of a factual record. Unfortunately, I dispair of a remand in this case explaining exactly what standard of review the lower courts should apply, so it’s not at all clear where things will ultimately end up. But it’s probably safe to ignore my predictions. For example, I was certain the majority in Heller would adopt the S.G.’s proposed “intermediate scrutiny” standard of review. In reality, the Nazgul, er, I mean Justices, could do almost anything. Or nothing.
Michael Zeleny says:
“To clarify the ongoing debate: Would gun control to the point of elimination save lives? Obviously. Would the United States then join other industrial nations? Even without guns, the United States would still be out of step, just as it has been for two hundred years.”
March 3, 2010, 2:37 pm—Eric H. Monkkonen, Murder in New York City, University of California Press, 2000, p. 179.
Later on, Monkkonen proposed a research program attributing the vast and enduring difference in homicide rates between the United States and Europe to a combination of four hypothesized social factors, two being political—mobility and federalism, and two being social—slavery and tolerance.
Bleh says:
Totally off topic, but I actually worked for Professor Monkkonen as a student (helped collect data for his work on Los Angeles homocide rates). He was a very interesting and kind man.
March 3, 2010, 2:49 pmPintler says:
I’m not sure of that. IIRC one of Kleck’s(??) books or papers said that the fatality rate for a single stab wound to the torso and a single handgun shot to the torso were similar (long gun wounds had a much higher fatality rate, but long gun murders are comparatively rare). Drive by shootings are certainly harder with a knife :-), but my impression is that most shootings occur at very short ranges (I recall an officer who had studied shootings in his department quote an average range of 7 feet). At those ranges, it’s not clear a handgun is appreciably more dangerous than a bowie knife.
To be sure, a scrawny mugger would prefer a gun to a bowie knife, but aren’t muggers statistically likely to be young males, who are likely to physically overmatch most of their intended victims? In fact, guns have the disadvantage of being loud – a mugger who shoots is in general going to attract unwanted attention, whereas one with a bowie knife can use it quietly.
March 3, 2010, 3:52 pmMichael Zeleny says:
Too bad that Eric Monkkonen is no longer with us. As my girlfriend struggles to make it through her first year of the UCLA History PhD program, I am trying to steer her towards his methodology.
March 3, 2010, 7:11 pmBrett Bellmore says:
The problem being, how remote a risk? The mere theoretical possibility that you might use a gun to kill somebody can hardly be sufficient; You’re about as likely to kill somebody with a car as a gun, and regulation of car ownership is far less onerous. In the case of the 1st amendment, the risk has to be rather particularized; Not, “Being able to speak might allow people to make death threats.”, but “This particular person made a plausible death threat.”
So, that reasoning might justify a restraining order against somebody who made threats, or laws against randomly firing in crowded areas, but would hardly even begin to justify most of what passes for gun regulation in this country.
Of course, like most of the justifications for gun regulation, the reference to “risk to life” is probably just pretext.
March 4, 2010, 7:35 amNetsol Blogs » Blog Archive » SCOTUS says:
[...] The next case is a follow up to Heller v. DC, the case decided in 2008, striking down DC’s total ban on the ownership and possession of handguns. The question discussed on Monday was to what extend that decision can be extended to states and municipalities. Gun control is another hot button issue, about which emotion frequently trumps reason. A decision would be expected likely in June. An interesting note about the oral argument can be found at the Volokh Conspiracy, a legal blog which is usually interesting and always entertaining. The post is here: http://volokh.com/2010/03/02/a-few-thoughts-on-the-mcdonald-argument/ [...]
March 4, 2010, 10:23 amJeffreyn1 says:
I agree with that.
I, for one, am very pleased that the NRA requested and was granted the ability to have Clement there. Without Clement, it would have been a bad day for 2nd Amendment supporters.
March 4, 2010, 1:31 pmThe WSJ reported a few months ago that Gura was not pleased about that.
I listened to Gura on NPR on Tuesday afternoon. I believe he even realized he was outgunned, so to speak, and grateful for the NRA’s support.
Mark says:
“… the Constitution if properly construed mandates libertarianism o’er the land …”
This phrase made me stop and think. Is this really what libertarians consider to be their ultimate goal? This seems enormously difficult and not what many people would want. What about a slightly more feasible goal based on federalism? A revised 14A could be limited to protecting a small set of enumerated rights at all levels of government (making interpretation “easier” for Justice Scalia). Federal power would have to be rolled back to its enumerated limits, but that has to happen anyway for libertarian utopia to be realized. Then states would be free to write constitutions of their choice, some of which could protect all natural rights to allow experimentation with libertarian societies. This seems to me like an easier sell than universal libertarianism.
March 6, 2010, 5:47 pmMark says:
(1) Not true: see National Academy 2004, CDC 2003 extensive literature reviews concluding no effect of gun ownership on violent crime or suicide and no benefits from gun control (I don’t have the citations to hand; post if you want them).
(2) Obviously untrue: consider your wheelchair-bound 90 year old mother vs three hopped-up linebackers with baseball bats (or hammers, as currently fashionable in the gun-free UK).
(3) There is no need to attack the maturity or motives of your opponents unless you have no good arguments. A bit like Justice Stevens’s “parade around the streets”.
On the last point, I think the gun controllers’ focus on people liking guns is quite revealing: it suggests that they are less concerned with actual consequences of gun ownership than with other people’s beliefs and intentions. I believe this underlies the “guns for hunting but not self-defense” argument. I could even generalize this idea to other issues, such as opposition to for-profit corporations based largely on the supposed selfish motivation of their owners, and the appeal of socialism/progressivism based on the supposed good intentions of government programs.
March 7, 2010, 12:52 pmRoland Nikles says:
Mark:
The correlation between our gun culture and enhanced homicide rates (items 1 & 2) is obviously up for debate. The point is that this debate should be left to the political process within the states. I take it you are not suggesting that judges should decide this question of how states may or may not regulate guns based on competing statistics presented in briefs?
As to item 3, there is nothing pejorative about “we like guns.” This goes to the heart of the incorporporation of unenumerated rights through substantive due process. In order to incorporate you need something more fundamental!
Per Slaugherhouse Cases the 2nd Amendment does not bind the states. The court seems to be unwilling to revisit that decision. So we are dealing with recognizing an unenumerated right in 2010 (States may not ban guns) that was not expressed in the constitution either in 1791 or in 1868. So where does it come from?
The traditional analysis for substantive due process is a given right is implied by a “concept of ordered liberty.” Scalia seems resistant to that. But how does the court get to impose this limitation of police power on the states?
The Feldman argument suggests that the right to self defense was not considered the reason for limiting the power of Congress through the second Amendment, i.e. there was no original intent that the 2nd Am. would bind the states. Obviously the framers could have said [or Slaughterhouse could have said that's what they said] that the 2nd Amendment is binding on the states. They didn’t! So why, excactly, is it so important for every citizen to be able to bear all manner of guns so that this can’t be regulated, or outright prohibted, by the States?
I assume the court will recognize a fundamental right based on the central nature of gun culture in our history because Kennedy indicated during the Feldman argument that this was the basis for his vote in Heller. What this means for the City of Chicago’s ability to have everyone check their handguns at the city limits we’ll have to see.
March 11, 2010, 5:24 pmJames H Macklin says:
As a layman who has been reading some history and some law review articles for about 50 years, It seems to me that Justice Thomas got it exactly right.
July 7, 2010, 1:05 amDred Scott v. Sanford was decided wrongly, based on cultural opinions of the SCOUS at the time {Taney]. Then compounded that in United States v. Cruikshank, 92 U. S. 542 (1876).
Will it be complicated to follow the complete path Justice Thomas wanted to follow, probably.
But the current criminal culture in our inner cities is really just a slave rebellion by those people who were denied their just rights in 1876 and kept enslaved by a government with Jim Crow and New Frontier and Great Society.
It is time that slavery and its modern day equivalent of “the welfare state” [reminds me of the hot house scene IN THE HEAT of the NIGHT] with the orchid remarks.]
The segregation today is not well intended, it is purely political for the benefit of the power structure of the big city machine, as personified by Chicago and Mayor Daley.