Second-guessing the Second Amendment
That's the title of this week's Independence Day cover story in the Boulder Weekly. Among the articles which you can read on-line are a pair of pro/con essays on Second Amendment rights, including my article, "The liberal argument for gun ownership."
But we wouldn't want to short-circuit a fast growing democratic movement by judicially imposing the right via incorporation, now would we?
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Like imposing the right to speak freely? Or the right to peaceably assemble? Wouldn't want to "impose" those either?
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I'm dead set against rights being perceived as flowing to a free people via the feds on account of being expressed in the constitution. But my right to keep and bear arms is not "conferred" to me by the government, nor is it "imposed" on me by the government.
You start by referring to Udall, Bennett, Madison and Jefferson as examples of liberals who support the Second Amendment. But simply pointing this out doesn't offer much of an argument; you don't explain why the actions Udall took with respect to Amtrak, DC, and state parks were actually good ideas.
Then you argue that liberals who believe in the living constitution should favor the second amendment. When liberals make the living constitution argument with respect to arms, they mean that when the amendment was drafted, the role that arms served in society was different than now. But your reason that they should accept the amendment seems to be that others in present times still favor the amendment, as if that means that modern circumstances are the same with respect to arms. All it means is that other people currently think that it is important to allow people to defend themselves with guns. That may be true, but the *fact* that they think it does not mean that modern conditions are the same, and thus the living constitution dictates that we agree with the amendment.
Then you make the argument that liberals are about tolerance, and it is intolerant to impose "anti-self-defense morality" on others. This is particularly weak. The reasons behind gun control have nothing to do with morality. They have to do with protecting society (I know that pro-gun activists also argue that they are protecting society), and that often involves restrictions. Is disallowing the carrying of bazookas or bombs "imposing morality" on others? Obviously not.
Finally, you talk about choice, and compare the choice to own a gun to the choice to have an abortion. Yes, many liberals may agree that a woman should have a choice to defend her family from a violent intruder. The problem is that loose gun laws not only allow this choice, but also allow the choice of criminals to easily obtain guns. Again, I'm not making an argument either way on this issue, but a woman's choice to have an abortion really only affects that immediate situation, whereas gun control laws certainly do not exclusively affect the situation where a woman must defend her family against a violent intruder.
I know there are plenty of valid arguments in favor of the Second Amendment that liberals should find reasonable, but I don't think you've made any of them.
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My criticism of Sotomayor on that count applies to the other members of the federal judiciary as well - they radically misconstrue Presser. They are either incompetent, or they are liars. She shouldn't be considered for elevation, she should be impeached and removed.
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This approach basically cedes authority to the feds. If your state government won't follow its own constitution (and that is clearly the case in Illinois), it seems odd to resort to the federal constitution, and the federal government. The remedy when a state government doesn't follow its own constitution is for the people to replace the people that comprise the state government.
The Slaughterhouse cases and the doctrine of incorporation neutered the 14th to a shadow of what was intended.
But, incorporation now being settled law, why should conservatives accept that it applies only to the rights to which liberals want to apply it?
One can quite consistently say "I oppose incorporation of any rights via the 14A but, if there is incorporation, it must be done evenhandedly".
The IL Constitution explicitly subjects the RKBA to the general police power of the legislature. I would vote to remove that restricting clause if it were put to me, but that doesn't mean I deny that it has the precise effect of allowing the legislature to impose the sorts of restricting (FOID, no CCW) that they have.
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I think it just states a truism. See the Presser case - the state can require a permit to public parade with arms. This is a police power. Parade permit laws do not infringe RKBA. That the state sees fit to abuse the clause is an issue for the people to deal with, if the legislature and courts won't.
What if a majority of the people who vote don't want it changed? Does that mean a state can ignore its own constitution, and those in the minority have to just suck it up and accept it? Somehow, the idea of just ignoring the constitution seems wrong, whether its the US Constitution, or an individual state's.
Nothing amuses more than saying that the intent of the Fourteenth Amendment was to allow states and localities to deny the right to arms to freedman. Even Posner was guilty of it through Easterbrook.
Federalism in 1890 meant the sheriff serving overtime in a white peaked hat..
-Gene
I have read many of the materials you speak of, as well as a lot of other research and articles on the topic, and I respectfully disagree. Not to rehatch this debate, but it would seem that if incorporation were intended, the language would have been a lot more obvious and a lot less cryptic. Nor would the states have been as on board as they were if that were the understanding -- would a state really want five out of nine judges telling each of its local police departments exactly what it can and cannot do in specific circumstances?
Agreed. But watching two talking heads on TV, it is funny to hear the conservative one balk at the idea of the Second Amendment only applying to the federal government.
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So, if the Congress/Exec/Courts ignores the US Constitution, we run to the UN? At some point, the people are supposed to act for their own benefit, and the more local/limited that action, the better. If the Illinois government is corrupt as to denying freedom to its citizens, the first solution is to throw out the local miscreants, not appeal to the federal constitution. If the miscreants ignore their state constitution, what makes them amenable to any other?
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You ask a good "what if" question. The reality is that the feds and state governments are guilty of not following the constitution. The fact of the matter is, all that's going to happen is the people will get red in the face as the government continues to act as it (the government) wishes. See warrantless searches, detention w/o charge, and carefully limited access to means of physical violence. As to judicial integrity and protection of the BoR, the US is just a bigger (not better) grade of banana republic. The people accept it. The minority in fact DO have to just suck it up.
Does a state have to follow its own constitution? SCOTUS can step in if it violates the US Const, but is it a violation for a state to (significantly) violate its own constitution, with its own Supreme Court's permission?
I think that might be a first!
It's hard for me to see mandatory FOID cards as being outside the police power to regulate the RKBA under that amendment. Unless you have a very cramped notion of "police power", licensure and qualification ought to be part of it.
The State Supreme Court is the final arbiter of what the State Constitution means. What you have proposed is a logical impossibility.
Except that the Federal government is obligated to protect the State governments from domestic violence
Interesting tidbit: Fort Sheridan (I lived next door in HP) was built precisely because the political powers in Chicago wanted a garrison against uppity (and increasingly violent) communist upheaval. Perhaps if cboltd had his way, those insurrectionists would have reformed the IL government, although probably for the worst.
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Sure. Just like licensure and qualification are part of the police power pertinent to speech and publication; peaceable assembly; and petitioning for redress. Unless you have a cramped notion of "police power," that is.
Does your First Amendment Read:
If so, you have a serious typo and need to get your BoR replaced with a more accurate copy ASAP.
I've long believed that the IL Constitution is fatally defective in included that qualification on the RKBA, but wishing it away because that suits your already-held political views is the height of childishness. Not all documents are drafted the way we would like them, being an adult might mean admitting that and working to change it instead of pretending it away.
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No. The federal government HAS NO POLICE POWER. But the 1st amendment freedoms are still subject to the police power of the states. There are restrictions on when, where, one can speak. Permits are needed to peaceably assemble, etc. Printing press installations are subject to zoning and building code. The list of "police power" limitations on expression is extensive.
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— I've long believed that the IL Constitution is fatally defective in included that qualification on the RKBA, but wishing it away because that suits your already-held political views is the height of childishness. ... being an adult might mean admitting that and working to change it instead of pretending it away. —
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We disagree on the power of the phrase. I didn't "wish it away" or "pretend it away." I said it recites a truism. All rights are subject to the police power, including 1st amendment rights. I'm not going to enter into an argument with you over whether FOID cards are a proper exercise of police power, but in my "not an adult, childish" [your characterization of my point of view] opinion, I think they are not.
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Our difference in construction to the police power phrase in the IL constitution is similar to the difference in construction of the militia phrase in the 2nd. I never thought that the militia phrase converted "the right of the people" into "the right of the organized militia." But gun-grabbers argue exactly that outcome and effect; including the dissent in Heller.
I don't understand the meaning of "shall not be infringed" then. Either a right shall not be infringed or it is subject to infringement in some fashion. Those two options seem to me entirely disjoint.
Neither do I, but I think that's a totally different sort of case. The militia phrase is inartfully tacked onto the 2A by means of a comma resulting in two phrases with uncertain relation (c.f the copyright phrase). Thus it's unclear even to the most expert among us what the operative effect of the militia phrase is.
The IL RKBA, on the other hand, explicitly specifies the relationship between the RKBA and the State power, to wit: the former is subordinate to the latter.
Again, I wish it weren't so, but I'm always wary of someone that interprets a Constitutional document in a manner that coincidentally parallels his political preferences. It's suspect, to the say the least.
That sounds sort of the opposite of what's being discussed here, though: rather than being in favor of any sort of federal intervention against a state government for allegedly acting tyrannically, I read it as saying that the federal government is obligated to step in on the side of a state government facing an insurrection of its people, if the federal government has received an "Application of the Legislature, or of the Executive (when the Legislature cannot be convened)".
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Of course it is. My point was that the cases are similar in that the "militia" clause of the 2nd amendment states a truism (in the nature of summarizing a rationale for the right); and so does the "subject to the police power" phrase (but this one in the nature of the relationship between ALL rights and the police power). What the two cases have in common is that opposing sides obtain radically different effect in their construction of those phrases. The read of "subordination" into the relationship between "police power" and RKBA is likewise a truism. One or the other will always prevail - the question in police power is whether the exercise is legitimate. Free to organize a large gathering w/o a permit / porta-potties / bond? But what about freedom of assembly? It's subordinate to the police power.
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-- Thus it's unclear even to the most expert among us what the operative effect of the militia phrase is. --
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The function of the militia clause is clear, except to those whose intentions are dishonorable. Even you appear to agree that it doesn't convert "right of the people" into a "right of the organized militia."
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-- I'm always wary of someone that interprets a Constitutional document in a manner that coincidentally parallels his political preferences. --
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At least we have that one thing in common.
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If my take on Oren's position is correct, he is of the view that the feds have a duty to uphold a tyrannical state government, with force of violence, if the people of the state rebel against the tyrannical state (provided that the state maintains the formalities associated with "republican form of government"). His "Federal government is obligated to protect the State governments from domestic violence" is the same as your "the federal government is obligated to step in on the side of a state government."
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The Illinois constitution poses an analytical conundrum when subjected to your constructions of "infringed" and "police power."
Of course not, but it does (for instance) suggest that arms with no functional bearing on militia service (sawed off shotguns) might not be protected.
Yes, it would seem that violent overthrow of State governments is off the table.
Larry, with all due respect, you didn't even read what I wrote. Here's a really short version that might be easier to digest:
(1) I am not in favor of the FOID cards under any circumstances. When I lived in IL, I voted against it (by proxy).
(2) The IL Constitution, to my best reading, allows the licensure of the RKBA as part of the explicit police-power exception to that right.
(3) My conclusions in (1) and (2) are not contradictory since I accept the possibility that the IL Constitution allows policies that I do not myself personally support.
The conclusion in (3) is very important -- you seem to think that because I believe the Constitution of IL means X then therefore I must support X. Nothing could be further from the truth, Constitutions are flawed documents.
In fact, as I've learned, the reverse is more often than not true -- a person supports X, and so they are fixed on reading the Constitution (or whatever other document/evidence) in support of their pre-held notion. I'm an avid supporter of the RKBA, so I feel that I must take special caution when reading those provisions to avoid projecting my personal opinions onto the documents that I'm reading.
Indeed, it's fatally flawed. I read it like this:
It's tautological -- it says that the RKBA cannot be infringed except when it is infringed. It has no semantic content.
[Again, for Larry -- I wish it weren't so but that doesn't make it go away.]
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Short barrel shotguns are common weapons for military and law enforcement use, and were at the time Miller was decided. See too, "blunderbuss."
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-- I read it like this: "Subject only to infringements, the right of the individual citizen to keep and bear arms shall not be infringed." --
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And that resolves the conundrum? LOL.
How about Other than by police power,"The right of the individual citizen to keep and bear arms shall not be infringed."...So the police can infringe, but the legislature cannot???
You might want to look up the phrase Police Power before asking that question.
The police power (on numerous occasions, the Justices have opined that the better phrase might be "general powers") is the right to pass any law that is not explicitly forbidden (c.f. the US Congress that can only pass laws for the execution of their enumerated powers).
Indeed. One wonders what kind of 'right' it really is. I'm hoping incorporation calls the 'police power' limitation into question.
Of course not, but it does (for instance) suggest that arms with no functional bearing on militia service (sawed off shotguns) might not be protected.
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Actually, I can think of several good, tactically sound reasons for a militia to have access to sawed off shotguns. In the Infantry, we called it a breaching gun, a pistol-gripped Remington 870 with a 12 or 14 inch barrel, loaded with ceramic slugs for punching through door locks, with rounds 3-6 being buckshot for the exploitation of the opening. Every squad had one in their breach kit.
Also, I'd like you to think clearly about what you're arguing, since limiting militia to militarily viable firearms would necessarily make legal the very types of weapons most despised by gun-control advocates (i.e. high-capacity, rapid fire, autoloading "assault rifles", automatic LMGs and SMGs, sniper rifles, etc.) I happen to agree with this line of thought, I'm just checking to make sure you've thought it through.
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The police power limitation has been called into question, and is routinely called into question. Presser, of Presser v. Illinois, said that to require him to obtain a parade permit in order to conduct an armed parade on public property was an infringement of the 1st and 2nd amendment. The Supreme Court said that parade permits are an appropriate police power, and do not infringe the RKBA, nor the privileges and immunities of citizens as secured by the 14th, in particular the right of the people peaceably to assemble and to petition the government for a redress of grievances.
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Resolution of the "subject to the police power" and "shall not be infringed" conundrum occurs when each of those terms is properly understood as not representing an absolute. I think both phrases are in the nature of truisms, aimed to amplify the strength of the right. The shortest expression I can come up with is "The people have the right to keep and bear arms." Is it absolute? No, parade permits are okay - and some may well be denied! But if "infringed" is taken as an absolute, then parade permits are forbidden as infringing the right to bear arms.
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And too with "police power." Government tend to adopt the position that police power is boundless - if a pretense can be offered, the law will stand as protecting the public. But the police power is not absolute, it too is limited.
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Resolving any particular regulation is fact specific. I think it's obvious that a police power regulation that prohibits in-home possession of a handgun, but permits in-home possession of a shotgun fails. Chicago's regulation is an invalid exercise of police power on it's own face, without reference to the RKBA (as the right to keep arms is conceded to exist, by the state permitting keep of shotguns), because the public danger of handgun keep is not greater than the public danger of shotgun keep.
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A pure hypothetical - if the government were to accept that the people have a right to keep 500 pound bombs, it would also, under police power, be perfectly right to impose zoning, security, and other limitations on the right of private ownership.
I was of the impression that legislatures have the authority to make factual determinations (the relative danger of different firearms types) according to their better judgment. Unless that determination is facially invalid (and it's not, handguns can quite reasonably be more useful for crime) I don't see what body can legitimately question that judgment.
Without reference to the RKBA, I see no limit on what Chicago can do whatsoever. It doesn't even need to pass rational-basis review.
You know this is not how it works. I used to live in a State that allowed fireworks, that does not mean that right to keep fireworks is conceded. The legislature's failure to exercise its power to regulate some article does not give rise to a right.
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Totally unrelated to RKBA, there are instances of illegitimate exercise of police power. legal-dictionary.thefreedictionary.com/Police+Power refers to the case of Mahony v. Township of Hampton as an example. This example involves an activity that is not a right.
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— Unless that determination is facially invalid (and it's not, handguns can quite reasonably be more useful for crime) —
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My comment was phrased as "keep," and also as to possession in the home. Certainly, one can utter that "handguns kept at home are more a public hazard than shotguns kept at home," but I don't find the utterance persuasive. I particularly don't find the crime-prevention logic persuasive, in the in-home "keep" context.
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So, to recapitulate; there are limits to "police power" aside from exercise of a personal or public right, and IMO, Chicago's ban of keep handguns at home is an illegitimate exercise of police power, because it lacks consistency in light of permitting "keep" shotguns and rifles.
is totally inapplicable to IL, being a decision of the PA Supreme Court.
Neither do I, but it is the role of the legislature to be persuaded of these facts, not me.
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My point was a general one probing limitations on "police power." Handgun bans have been upheld as legitimate use of police power by the Illinois Supreme Court. Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 470 N.E.2d 266 (1984) I suspect similar restrictions would be similarly upheld by courts in some states, and rejected by courts in other states.
On a previous thread, I had the hardest time explaining to someone that a State may do anything not explicitly forbidden to it, where "State" here means the sum total of its form of government, that is, laying aside the State Constitution.
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