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Judgement Day 2010
June 28, 2010 7:33 AM   Subscribe

Today, June 28, 2010, marks the last day of the 2009-10 session of the Supreme Court of the United States. This day will mark a number of historical events, not only in terms of the cases to be handed down.

Getting the "non-law" stuff out of the way:

- Martin D. Ginsburg, Justice Ruth Bader Ginsburg's husband, died last night at the age of 78. Justice Ginsburg will not be attending today's proceedings.

- Justice John Paul Stevens takes the bench for the last time, as he is retiring this year. Stevens will likely write the Bilski opinion.

- In an interesting coincidence, Elena Kagan begins her confirmation hearings, expected to last for at least a few days.

Even without those changes, this would be a big day for the court, as it has saved four potentially major opinions for last. These are:

- McDonald v. Chicago on the incorporation of the Second Amendment, has already been handed down (opinion). Analysis is presumably to follow, but the gist is that the Second Amendment does apply to the states.

- Bilski v. Kappos, which could potentially invalidate the very concept of the "business method" patent.

- Free Enterprise Fund v. Public Company Accounting Oversight Board, a challenge to parts of Sarbanes-Oxley.

- Christian Legal Society v. Martinez, on freedom of association.

Feel free to update with links to opinions and analysis as they appear.

Here we go...
posted by valkyryn (193 comments total) 4 users marked this as a favorite

 
…something has got to give on the Second Amendment front. When freedom of speech/press/assembly has reasonable limitations, but the right to bear arms has essentially none, the system is clearly broken.
posted by one more dead town's last parade at 7:43 AM on June 28, 2010 [8 favorites]


he Court rules that an "all comers" policy, at least as it exists at the Hastings College of Law, is constitutionally reasonable, taking into account all of the surrounding circumstances. The opinion notes that the lower courts did not address the CLS's argument that hastings selectively enforces its "all comers" policy
5-4
Scotosblog liveblog
posted by Lemurrhea at 7:47 AM on June 28, 2010


Here is Ginsburg's opinion for the court in CLS v. Martinez
posted by Lemurrhea at 7:48 AM on June 28, 2010


Bilski is also here...
posted by valkyryn at 7:53 AM on June 28, 2010


McDonald v. Chicago

Bilski v. Kappos
posted by T.D. Strange at 7:55 AM on June 28, 2010


…something has got to give on the Second Amendment front. When freedom of speech/press/assembly has reasonable limitations, but the right to bear arms has essentially none, the system is clearly broken.

You only think it's broken because you're not a conservative who views free speech as dangerous and harmful to public morals but views firearms as the safeguard of public commonweal.

From their point of view, the system is working just fine.
posted by Avenger at 7:58 AM on June 28, 2010 [4 favorites]


Bilski seems interesting. They reject the Federal Court's statement that a process has to be tied to a machine (or transforms something), but they also clearly disallow algorithms from being able to be patented.

So it's a smaller step towards getting rid of shitty patents, but it does seem to be a step.

And there was no dissent. There were differences, but they all found the same result. Good!
posted by Lemurrhea at 7:59 AM on June 28, 2010 [1 favorite]


Bilski looks to be a very narrow decision: they've affirmed the lower court's ruling that the specific patent at issue is not valid due to being an abstract idea or algorithm (to do with a method for hedging investments) but have not ruled that business methods per se are ineligible for patent:
The Court is unaware of any ordinary, contemporary, common meaning of "process" that would require it to be tied to a machine or the transformation of an article.
[...]
(c) Section 101 [of the Patent Act] similarly precludes a reading of the term "process" that would categorically exclude business methods.
Need to skim the concurrences as although the Court is unanimous to outcome, they're not all agreed on the details.
posted by Electric Dragon at 7:59 AM on June 28, 2010


Not that I want to be labeled a gun nut (I don't, and don't care to, own one), but I would hardly say the right to bear arms has "essentially none" limitations.
posted by DU at 8:01 AM on June 28, 2010 [9 favorites]


The issue is an outright blanket ban - the courts have decided this isn't a reasonable limitation. There are other limitations, such as taxes, licensing, registration, waiting periods, background checks etc., that could do a reasonable job of limiting access to firearms.

I'm actually relieved that blanket bans are out of the way - you would be shocked at how many single-issue voters there are on gun rights, and how the threat of a ban or seizure of hobbyist and hunting guns fills the Republican coffers like no other issue.
posted by Slap*Happy at 8:04 AM on June 28, 2010 [1 favorite]


but the right to bear arms has essentially none

I don't think it is very accurate to describe the state of the law after this decision as a complete lack of restrictions on gun ownership. After the court struck down the DC ban,
Washington requires gun owners to get five hours of safety training, register their firearms every three years and face criminal background checks every six years.

Gun owners there are further required to submit fingerprints and allow police to perform ballistic tests. They must keep revolvers unloaded and either disassembled or secured with trigger locks unless they have reason to fear a home intruder.
Maybe those restrictions are insufficient but it's not like they're selling them at the 7-11 or something.
posted by enn at 8:05 AM on June 28, 2010 [11 favorites]


I'm interesting in hearing more detail on the patent case. Would this impact software patents at all?
posted by empath at 8:07 AM on June 28, 2010


Knee jerk critics of Justice Thomas's intelligence ought to take a look at his concurrence in McDonald linked in the FPP. He rightly points out that the Privileges and Immunities clause of the 14th Amendment was interpreted away in an explicitly racist set of cases, ending with Cruikshank, designed to tamp down the post-Reconstruction power African-Americans in the South.

Much of the stupidity of the jurisprudence in the 20th Century has been caused by trying to force "Privileges and Immunities" claims through the "Equal Protection" and "Due Process" provisions of the 14th Amendment. For people who read their jurisprudence off their preferred policies, there's good reason to reconsider originalism in light of the 14th Amendment's Privileges & Immunities clause. Progressives take note: a resurgence of "Privileges and Immunities" jurisprudence would be a great boon.
posted by anotherpanacea at 8:08 AM on June 28, 2010 [4 favorites]


Although I haven't read McDonald, the Heller case made it clear that reasonable restrictions on firearms would be permitted. So far, only D.C.'s and Chicago's blanket bans on handguns have been ruled unconstitutional by the Court.

Also, a . for Prof. Ginsburg. I went to Georgetown Law, and I'll never forget what he had posted on his office door: an invitation addressed to Justice and Mrs. Ginsburg.
posted by thewittyname at 8:08 AM on June 28, 2010 [16 favorites]


I don't think it is very accurate to describe the state of the law after this decision as a complete lack of restrictions on gun ownership.

It wasn't well articulated above, but I'm mainly referring to the fact that reasonable restrictions get tossed out. A ban on handguns is not a ban on all guns, and is not unreasonable, since handguns have essentially only one purpose (shooting people) and are more likely to kill their owner than anyone attacking said owner.

The closest corollary I can think of is to invalidate laws banning incitement of violence because an an opinion that violence should occur is just an opinion, man.
posted by one more dead town's last parade at 8:12 AM on June 28, 2010 [1 favorite]


Would this impact software patents at all?

Absolutely. It depends on how aggressive the Court was in their ruling. Still trying to figure that out though... Again, analysis to follow.
posted by valkyryn at 8:19 AM on June 28, 2010


Here's Free Enterprise Fund.
posted by valkyryn at 8:20 AM on June 28, 2010


Looks like the ruling in Bilski is pretty narrow. It seems that the issue of software patentability is still up for debate.
posted by valkyryn at 8:22 AM on June 28, 2010 [1 favorite]


RBG was present, by the way. Not to be too critical, but this was posted after all four decisions were announced. It may have been best to wait a short while and link to the decisions themselves.
posted by allen.spaulding at 8:30 AM on June 28, 2010 [2 favorites]


...something has got to give on the Second Amendment front. When freedom of speech/press/assembly has reasonable limitations, but the right to bear arms has essentially none, the system is clearly broken.

When you need to fill out a 4473 and do a NICS call (like handguns and longarms) to buy a pen and submit fingerprints, passport type photos and a six page Form 4 to operate a weblog (like all Title II weapons) I'll see your point. The assertion that there are "no limitations" on firearms yet there are on speech and press is patently absurd.

Also, if you think that 2A supporters are not also 1A supporters, I suspect you don't know any. Neither of those Amendments is worth a damn without the other.

I suppose you never heard of the case Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue (http://supreme.justia.com/us/460/575/) which struck down a state tax on newsprint and ink used by newspapers on 1A grounds back in 1983. SCOTUS decided that the tax was an unreasonable and selective limitation on the 1A rights of newspaper printer since it did not impact small printers or magazines. Would you feel that it's okay for the City of Chicago to selectively decide what literature, newspapers and magazines are allowed in the city? Would you accept them filtering internet connections to any material they deemed "dangerous"? If those are unreasonable, how is a blanket ban on LEGAL handgun ownership reasonable?
posted by RevGreg at 8:35 AM on June 28, 2010 [5 favorites]


It wasn't well articulated above, but I'm mainly referring to the fact that reasonable restrictions get tossed out.

Your definition of "reasonable" and mine may not always agree. Perhaps we can agree to have differences in these definitions ironed out by a panel of judges, who are appointed by the duly elected head of our state, and approved by another panel of duly elected persons from across the country.

But what would we call this court of judges, who reign supreme in interpreting the laws...
posted by Etrigan at 8:39 AM on June 28, 2010 [3 favorites]


As of today, there have been exactly two authoritative Supreme Court cases interpreting the 2nd Amendment. How many Supreme Court cases have there been interpreting the free speech clause of the 1st Amendment? Certainly scores, if not hundreds -- and other courts have had many decades to build their own case law influenced by SCOTUS's. I think we're going to have to wait for more 2nd Amendment case law to develop before we declare that the right to bear arms is wildly out of step with the right to free speech.
posted by Jaltcoh at 8:55 AM on June 28, 2010


Would you accept them filtering internet connections to any material they deemed "dangerous"? If those are unreasonable, how is a blanket ban on LEGAL handgun ownership reasonable?

If you can't see that speech is never, by itself, imminently dangerous to life and limb, but handguns are designed to be exactly such a danger, then I can't help you.
posted by one more dead town's last parade at 8:56 AM on June 28, 2010 [4 favorites]


If those are unreasonable, how is a blanket ban on LEGAL handgun ownership reasonable?

Pen and paper don't kill people. Handguns do. Unless you're talking about keeping them locked up at the firing range, no, there's really no need for the average citizen to own them. Especially considering the statistics on self-injury and such.

Americans really need to get over this infantile domineering/aggressive thing. We're kind of tired of it.
posted by dirtynumbangelboy at 8:57 AM on June 28, 2010 [2 favorites]


RevGreg: "Neither of those Amendments is worth a damn without the other."

So true, just ask our colleagues across the pond. Oh wait, you can't, because their lack of guns means they aren't allowed to exercise their free speech rights.
posted by mullingitover at 8:59 AM on June 28, 2010 [1 favorite]


A ban on handguns is not a ban on all guns, and is not unreasonable, since handguns have essentially only one purpose (shooting people)

So the 2nd amendment wasn't about shooting people, just animals and targets?
posted by smackfu at 9:02 AM on June 28, 2010 [2 favorites]


Marty Ginsburg was one of the most beloved professors at Georgetown Law. He will be missed.

.
posted by Navelgazer at 9:05 AM on June 28, 2010 [2 favorites]


A ban on handguns is not a ban on all guns, and is not unreasonable, since handguns have essentially only one purpose (shooting people) and are more likely to kill their owner than anyone attacking said owner.

Heller held that the 2nd Amendment protects the right to own guns for self-defense. Handguns are better for self-defense than either rifles or shotguns. (That's why police carry them.) Therefore, a blanket restriction on handguns is a blanket restriction on the items best suited to the 2nd Amendment's SCOTUS-interpreted purpose. DC and Chicago were only stalling, and in DC's case it cost us voting rights.
posted by anotherpanacea at 9:06 AM on June 28, 2010 [3 favorites]


If you can't see that speech is never, by itself, imminently dangerous to life and limb ... then I can't help you.

Wait a minute ...

How about telling a blind person it's safe to walk over in that direction, when it's really the end of a cliff?

How about fine-print language in a contract that says "You agree to sell yourself into slavery for life"?

And do I even need to point out the classic example of falsely yelling "fire" in a crowded, confined place, causing a stampede? How about yelling "terrorist" on a plane?
posted by Jaltcoh at 9:09 AM on June 28, 2010 [4 favorites]


since handguns have essentially only one purpose (shooting people) and are more likely to kill their owner than anyone attacking said owner

Given prior interpretation of that whole Militia thing (wrong or right), guns for shooting people is the whole point of the Second amendment. It's not like it says a well regulated paintball team being necessary to the security of a free State or a well regulated bunch of hunters being necessary for puttin' vittles on the table.

I agree that the current gun culture and regulation is an issue, but that's a good reason to create a new constitutional amendment clarifying or eliminating gun rights, not a good reason to throw out the whole Constitution.

When freedom of speech/press/assembly has reasonable limitations, but the right to bear arms has essentially none, the system is clearly broken.

Whooo! Briefcase nukes for everyone! It's gonna be the politest society ever.

The Onion can often be both timeless and timely.
posted by BrotherCaine at 9:09 AM on June 28, 2010


smackfu: "So the 2nd amendment wasn't about shooting people, just animals and targets?"

I'm confused about how 'arms,' which in terms of armies and militias usually includes a vast away of heavy weapons, got whittled down to just handheld guns. What kind of self-respecting well-regulated militia in this century would go without tanks and some hellfire-equipped drones?
posted by mullingitover at 9:10 AM on June 28, 2010 [1 favorite]


Americans really need to get over this infantile domineering/aggressive thing. We're kind of tired of it.

I can understand your "this is what the U.S. should be like" prescriptions in terms of foreign policy. That affects you. When it comes to our domestic policies and constitutional rights? How about shutting the fuck up.
posted by clarknova at 9:17 AM on June 28, 2010 [5 favorites]


I am not a constitutional scholar, but from what I've read on the Second Amendment, it does seem to me that it creates an individual, rather than a collective, right. If that is indeed the case, then amending the US Constitution would be the only way to change that "fact." The moral and ethical and public health debates on gun ownership are still worthwhile, but the implementation of any outcomes of those debates will be hampered by Constitutional constraints.
posted by Falconetti at 9:21 AM on June 28, 2010 [1 favorite]


Bilski was a punt.

Not really surprising, in hindsight.
posted by ChurchHatesTucker at 9:25 AM on June 28, 2010


When it comes to our domestic policies and constitutional rights? How about shutting the fuck up.

I think pretty much anyone has the right to comment on US domestic policy here. I want to be able to talk about the internal policies of countries in the rest of the world on metafilter, so non-Americans should be able to discuss American domestic policy.
posted by Falconetti at 9:25 AM on June 28, 2010 [6 favorites]


So true, just ask our colleagues across the pond. Oh wait, you can't, because their lack of guns means they aren't allowed to exercise their free speech rights.

How many countries do you wish me to cite where that is true? One has to be pretty selective to build the strawman you just proposed. What we do know is that countries which seek to repress the right to speech have always disarmed the populace first, why take chances?

If you can't see that speech is never, by itself, imminently dangerous to life and limb, but handguns are designed to be exactly such a danger, then I can't help you.

Correct. Speech itself is not imminently dangerous, it takes an individual acting upon that speech for it to become dangerous to life and limb. Oddly, a handgun also is not imminently dangerous, it too requires the actions of an individual to become dangerous to life and limb. If you cannot see a firearm as an inanimate object and the will of it's user as the causal action, then I can't help you. If you manage to ban firearms, do we then blame knives, rocks, stones, clubs, fists, etc. until we run out of inanimate objects to blame for violence they themselves are incapable of creating?
posted by RevGreg at 9:27 AM on June 28, 2010 [5 favorites]


RevGreg wrote Also, if you think that 2A supporters are not also 1A supporters, I suspect you don't know any.

I know dozens, and in my experience most of the real 2A fanatics rather hate, loathe, and despise the 1st Amendment, as well as most of the others.

Take, for example, the Texas Republican Party Platform of 2010, which calls for a complete ban on all pornography (direct 1A violation), a shutdown of any and all sexually oriented businesses [1] (indirect 1A violation), demands that the myth of separation of church and state be instantly repudiated (direct 1A violation, though they are non-specific as to which sect should become our state religion), demands that all Guantanamo detainees be held for the rest of their lives without charges or trials (direct 5A violation), and demands that birthright citizenship be ended immediately (direct 14A violation).

Every 2A fanatic I know thinks Guantanamo is the best thing ever and is outraged at the very thought of giving the people there trials. Many tell me that the lawyers working for those people are traitors and should be executed as such. These views are not fringe, and indeed are quite common among the right.

In general it is my experience that the 2A fanatics are generally opposed to any and all civil rights beyond gun ownership.

Neither of those Amendments is worth a damn without the other.

Speaking as a guy who owns and likes guns: that statement is demonstrably false.

Japan has freedom of the press, it also has a complete, no nonsense, 100% ban on civilian ownership of any and all firearms. Most Japanese police don't even have guns. Yet they have freedom of religion, press, assembly, etc. Something you claim is impossible without civilian firearms.

England bans most firearms, but has freedom of religion [2], freedom of the press, freedom of assembly, etc.

In fact, most Western Democracies have either bans or significant limitations on firearms, and they all have the freedoms listed in the 1st Amendment.

More significantly, most of those nations actually enforce their rules which prohibit the government from grabbing random people and putting them in cages, forever, without charges, trials, or anything but the say so of a single person. Where are your 2A fanatics when it comes to enforcing 5A rights? Are they protesting Guantanamo?

[1] A rather broad term that encompasses strip clubs, sex toy shops, and anything in between.

[2] Despite having an official state religion no less.
posted by sotonohito at 9:27 AM on June 28, 2010 [14 favorites]


Every 2A fanatic I know thinks Guantanamo is the best thing ever and is outraged at the very thought of giving the people there trials.

Not everywhere is Texas.
posted by enn at 9:30 AM on June 28, 2010 [2 favorites]


I agree with Falconetti, but it'd be nice if foreigners didn't assume a majority of Americans have control over a decision made two centuries ago; also more brain, less asshole would be nice all around (myself included).
posted by BrotherCaine at 9:32 AM on June 28, 2010


Speech itself is not imminently dangerous, it takes an individual acting upon that speech for it to become dangerous to life and limb. Oddly, a handgun also is not imminently dangerous, it too requires the actions of an individual to become dangerous to life and limb.

The difference is that it takes multiple people in the case of speech, but a single person in the case of a firearm.

There are plenty of Americans who love the fantasy of being judge, jury, and executioner. That there is a significant number of them doesn't make them any less wrong.
posted by one more dead town's last parade at 9:32 AM on June 28, 2010


It's also my birthday.
posted by Merik at 9:34 AM on June 28, 2010 [3 favorites]


I'm a rights fanatic, and as long as the second amendment is in there, I'm supporting it with all the rest.

I'm confused about how 'arms,' which in terms of armies and militias usually includes a vast away of heavy weapons, got whittled down to just handheld guns. What kind of self-respecting well-regulated militia in this century would go without tanks and some hellfire-equipped drones?

I think this is one of those textualist things, where they looked at the history of what arms people took home in the time period versus leaving in an armory (man portable firearms versus cannons), and extrapolate the rights from there. But my knowledge of military history is too weak to be sure.
posted by BrotherCaine at 9:38 AM on June 28, 2010 [1 favorite]


Heller held that the 2nd Amendment protects the right to own guns for self-defense. Handguns are better for self-defense than either rifles or shotguns. (That's why police carry them.) Therefore, a blanket restriction on handguns is a blanket restriction on the items best suited to the 2nd Amendment's SCOTUS-interpreted purpose.

Police do not carry handguns because they are "better for self-defense". Most police never draw their sidearm and few who draw them fire them. Lugging around a longarm would be a pain in the butt and also tends to project a far more aggressive stance which is counterproductive to community relations. The blanket restriction on handguns was seen as unconstitutional since handguns are in "common usage". The SCOTUS in Heller tried to make a distinction between firearms which are "in common usage" (rifles, shotguns, handguns) and others which are "unusal" (machineguns, submachineguns) which may also be the basis of another case in the future as the "unusual" weapons can be seen as only being "unusual" and "not in common ownership" because of laws which restricted their purchase and transfer.
posted by RevGreg at 9:41 AM on June 28, 2010


Kagan Hearings: Republicans intend to make an issue of the Supreme Court nominee's gay rights track record. The only wildcard is which GOP senator will come right out and ask her if she's a lesbian.
posted by homunculus at 9:41 AM on June 28, 2010 [1 favorite]


I can understand your "this is what the U.S. should be like" prescriptions in terms of foreign policy. That affects you. When it comes to our domestic policies and constitutional rights? How about shutting the fuck up.

Given that both your foreign and domestic policy stem from the same source? No, I won't shut the fuck up. Given that Americans on MetaFilter feel absolutely free to comment on the domestic policies and constitutional rights of everywhere else in the world? No, I won't shut the fuck up.

Given that your imperious directive comes from exactly the same source as this infantile aggression/gun-boner that Americans have? No, I will absolutely not shut the fuck up, but thank you for proving my point.

American exceptionalism is beyond tiresome. It doesn't exist; the rest of the western world things does things differently than you (guns, drugs, gays, healthcare) with vastly better outcomes for societies in all of those places. You are not special snowflakes, and to be really blunt: we're right and you're wrong. And until your country stops changing domestic policies of other sovereign nations, no, I will not shut the fuck up.
posted by dirtynumbangelboy at 9:42 AM on June 28, 2010 [7 favorites]


BTW, let's hope that the Bilski case helps stem the tide of disastrous patents which have made doing e-business like walking through a minefield. I likely won't get to read that for a day until McDonald is digested...would love if somebody gave it a go a reported back!
posted by RevGreg at 9:44 AM on June 28, 2010


I like the following from the FEF v PCAOB:

The officers of such an agency—safely encased within a Matryoshka doll of tenure protections—would be immune from Presidential oversight, even as they exercised power in the people’s name.
posted by BrotherCaine at 9:45 AM on June 28, 2010


The difference is that it takes multiple people in the case of speech, but a single person in the case of a firearm.

In the case of Tim McVeigh, who was acting out the white nationalist fantasies of The Turner Diaries, it only took one. No guns involved there; only free speech and fertilizer.

Yes his brother procured the chemicals but you can't count support infrastructure without invalidating your own argument.
posted by clarknova at 9:46 AM on June 28, 2010 [1 favorite]


At least as far as software patents go, Bilski is going to change pretty much nothing. The Court didn't articulate any new rules. Great for me, considering that's 80% of my job. Questionable benefit to the software industry as a whole.

Here's Patently-O's take.

tl;dr:

-In general, the opinion offers no clarity or aid for those tasked with determining whether a particular innovation falls within Section 101.

-Business Methods: Section 101 does not categorically exclude business methods from patentability.

-Software: Although the court expressly refused to rule on the patentability of software, it appears that software will largely remain patentable.
posted by naju at 9:49 AM on June 28, 2010


Unless you're talking about keeping them locked up at the firing range, no, there's really no need for the average citizen to own them.

This was not legal in Chicago.
posted by Jahaza at 9:51 AM on June 28, 2010 [2 favorites]


No guns involved there; only free speech and fertilizer.

Both of which have uses other than injuring or killing.
posted by one more dead town's last parade at 9:53 AM on June 28, 2010


Given that your imperious directive comes from exactly the same source as this infantile aggression/gun-boner that Americans have?

This kind of raving generalization makes me wish Canada had limitations on free speech in direct proportion to the limitations you desire for our domestic firearms.
posted by clarknova at 9:58 AM on June 28, 2010 [3 favorites]


Um, dirtynumbangelboy, I agree with your point, but am feeling a little attacked by all the "you people-ing." A whole lot of people down here in the US disagree with our government's policies on guns, drugs, gays, and healthcare.
posted by desuetude at 10:04 AM on June 28, 2010


No, what you mean is you don't like what I'm saying so SHUT UP I'M AMERICAN AND WE'RE DIFFERENT USA USA USA.

It's just all so tiresome and predictable, really. Wanting you lot to join the rest of the world is about making life safer, healthier, and better for your country. Which then makes things safer for the rest of us, because once you guys dial down the aggression, the whole world will be a better place.
posted by dirtynumbangelboy at 10:05 AM on June 28, 2010


posted by dirtynumbangelboy your imperious directive comes from exactly the same source as this infantile aggression/gun-boner that Americans have

Hey, Canada is also a gun-lovin', gun-totin', gun-crazy country!
posted by mattdidthat at 10:06 AM on June 28, 2010 [1 favorite]


Hunting, not handguns, for the most part. Kind of a difference there. But, bah, facts.
posted by dirtynumbangelboy at 10:07 AM on June 28, 2010


Wanting you lot to join the rest of the world is about making life safer, healthier, and better for your country.

* -- "the rest of the world," of course, being only those places that dirtynumbangelboy approves of, and the other places, well, that's probably America's fault anyway, because they're all so exceptionalist and aggressive and stereotyping assholes there.
posted by Etrigan at 10:11 AM on June 28, 2010 [1 favorite]


Aw, how cute.
posted by dirtynumbangelboy at 10:12 AM on June 28, 2010


The blanket restriction on handguns was seen as unconstitutional since handguns are in "common usage."

Right: in common usage for self-defense. And the reason police don't primarily carry longarms is because they are awkward when used in close-quarters, i.e. self-defense. Reread Heller, or just look at McDonald:
Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. See also id., (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id.; see also id., (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” of self-defense). (“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.”
Everything starts and ends with that self-defense claim, not commonality: automatic weapons will be barred because they're more useful for offense than defense, and tazers and others less-lethal methods like pepper spray could be found to be 2A protected because of their self-defense value as well. Frankly, I wonder what will happen to restrictions on knives and blade lengths under Heller/McDonald.
posted by anotherpanacea at 10:13 AM on June 28, 2010 [1 favorite]


Pen and paper don't kill people. Handguns do.

dnab, you really shouldn't say things like that given my woeful inability to resist a challenge. Off to the workshop to make death-dealing devices from paper and pens.

Just to get the ground rules clear, if I use some device to accelerate a pen to lethal velocities, is that me killing with a pen, or is any device that flings a supersonic projectile a gun to you?
posted by ROU_Xenophobe at 10:13 AM on June 28, 2010


I'm not a fan of the Second Amendment, but that might just be because I heard gunfire outside of my house last night for the second time in a month, and because two people were shot and killed (in broad daylight) a few blocks away last week.

More guns won't prevent stray bullets from entering my window, and probably wouldn't have helped the two gentlemen who were attacked unprovoked.

So, yeah. I'm biased. The Second Amendment is currently by far the greatest threat to my own personal freedom and liberty.
posted by schmod at 10:19 AM on June 28, 2010


posted by dirtynumbangelboy Hunting, not handguns, for the most part. Kind of a difference there. But, bah, facts.

Yep, facts--that Canadians also have a high rate of gun ownership--tend to shoot gigantic holes through the ridiculous, overwrought, sweeping generalizations you're so fond of making.
posted by mattdidthat at 10:19 AM on June 28, 2010 [5 favorites]


Also, to attempt to pull this thread away from a 2nd Amendment discussion, it's worth nothing that Justice Ginsburg was indeed present at the court today to deliver her decision on the CLS case.
posted by schmod at 10:23 AM on June 28, 2010


Oh matt, really this is very cute. How about you look at per capita rates of people shot (on purpose or by accident) in Canada vs USA. Violent gun-related crime, too.

Ah well, I'll leave y'all to your fetishistic gun-worship. It's a nice day outside and the cops are all gone.
posted by dirtynumbangelboy at 10:25 AM on June 28, 2010


I think it's really, really important, when discussing Canadian/American gun ownership rates, to compare also the kinds of guns. Handgun ownership is higher in the US, because (to a very large extent) handgun ownership is illegal in Canada. (marksmanship-competition guns and quasimilitary (i.e. police) usage are the primary exceptions.) dnab's being a stereotypical asshole-Canadian here, but underneath the righteous indignation he does have a point.

To make a slightly inflammatory statement, where exactly is the defensive value in a handgun? I've never figured out how those devices could be used defensively. Is the threat of harm really a successful deterrent?
posted by Fraxas at 10:30 AM on June 28, 2010


Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.

I'm ambivalent about the ruling, but isn't this the same sort of judicial activism that the "strict constructionists" decried in Roe v Wade?
posted by dirigibleman at 10:30 AM on June 28, 2010


What we do know is that countries which seek to repress the right to speech have always disarmed the populace first, why take chances?

Not necessarily... for example most of the Middle East has small arms swimming everywhere and liberal democracy is pretty thin on the ground over there. But then, a bunch of people with rifles isn't really able to deal with a modern combined-arms army which is something that gets elided in these Second-Amendment discussions – the amendment simply isn't interpreted in a way that, in practice, would allow it to serve as the basis of some Jeffersonian ideal of continual revolutions of the citizenry. Technology has advanced, and the right to bear (small) arms does not work as the foundation of the right to speech in any meaningful sense whatsoever. Especially in the US, a popular uprising of dudes with AR-15s would get carved to bits against most major police forces, let alone the actual military, and everyone knows it. The populace is disarmed. (I am not personally completely happy with this state of affairs; I'm not a bunker-hiding nutjob but a lot of the progression of government policy over the last 20-30 years can be understood as coming from an establishment that has no reason to fear the reactions of its subjects.) They'll let you have your guns and your feelings of empowerment, why not, you aren't going to do anything with it.
posted by furiousthought at 10:30 AM on June 28, 2010 [4 favorites]


In general it is my experience that the 2A fanatics are generally opposed to any and all civil rights beyond gun ownership.

Which is why, someday, we're going to have to kill those people before they kill us. Don't trust authority to save you, authority will be the first thing they seize. Your capacity for violence in self-defense is the most fundamental right.
posted by 0xdeadc0de at 10:34 AM on June 28, 2010 [2 favorites]


No, what you mean is you don't like what I'm saying so SHUT UP I'M AMERICAN AND WE'RE DIFFERENT USA USA USA.

Again, the same raving generalization. I agree with you about the toxicity of the doctrine American Exceptionalism (which is just another incarnation of Manifest destiny or imperialism). I agree with you about the need to make my, and all countries safer and healthier for thier citizens.

But what you're doing is stereotyping. I want gun ownership easy and legal so that my seventy year old mother out on her rural farm can protect herself from (the statistically unlikely but nevertheless real) threat of home invasion. I don't want anyone to take her gun away. Your translating my strong opinion into some bubba caricature is just as tiresome for me as it is for you, for the opposite reason.

Utimatley it's not your fucking place to tell me what my rights and freedoms should be. I could make generalizations about Canadian character and advocate for changes to your law and culture, but I don't. It's your business, not mine. Your presumption that you know what's wrong with us down here, and that we should be fixing it by becoming more like you, is the perfect mirror of the American Exceptionalism you imagine I subscribe to.

Now knock off your pop-psycholgizing before I accuse you of projection.
posted by clarknova at 10:37 AM on June 28, 2010 [6 favorites]


Ah well, I'll leave y'all to your fetishistic gun-worship.

*goes to my workplace's Communal Gun Shrine, applies face paint, prays to Kali the Goddess of Death before firing off a few celebratory rounds into the drywall*
posted by naju at 10:38 AM on June 28, 2010


posted by dirtynumbangelboy Ah well, I'll leave y'all to your fetishistic gun-worship.

You talkin' to me? You talkin' to me?
posted by mattdidthat at 10:42 AM on June 28, 2010


But then, a bunch of people with rifles isn't really able to deal with a modern combined-arms army

Apparently you haven't heard about this place called "Iraq". "Afghanistan" neither.

This is precisely what the insurgencies in both countries are doing: using small arms to bring a modern army effectively to its knees by imposing a cost which is too high in blood and treasure to be politically palatable.

Sure, we routinely gun them down like dogs, but they're still there, and we're trying to get out as fast as we possibly can.
posted by valkyryn at 10:42 AM on June 28, 2010 [2 favorites]


I'm ambivalent about the ruling, but isn't this the same sort of judicial activism that the "strict constructionists" decried in Roe v Wade?

No, not really. There, Blackmun introduced an entirely new right--privacy--out of whole cloth, finding it implied by the Constitution in its "penumbra". You can make an argument that this is/isn't a valid thing to do, but there is no argument that this right exists as part of the text of the Constitution proper. None. Even less when applied in the context of abortion.

The Second Amendment, on the other hand, explicitly protects the right to bear arms. It's in there. We can have a discussion about what that means, but the text of the Constitution itself mentions it. The Supreme Court deciding just how far a certain Constitutional right goes is an entirely different conceptual matter than announcing that a previously undiscovered right protects an entirely novel area of activity.
posted by valkyryn at 10:47 AM on June 28, 2010 [1 favorite]


Just to return again to Thomas's concurrence in McDonald: isn't it interesting that the strongest gun restrictions are in cities with high concentrations of African-Americans, while rural whites see few gun restrictions? The fact that Cruikshank established that there is no harm in denying an African-American his Second Amendment rights (because he doesn't have them, 14th Amendment notwithstanding) really does set the stage for an interesting critical race theory re-assessment of gun laws and gun crimes.

For instance, how much more often would an African-American charged with a drug crime see a concomitant gun charge (possibly with sentence enhancements) than a white person charged with the same drug crime, based solely on his jurisdiction?
posted by anotherpanacea at 10:47 AM on June 28, 2010 [1 favorite]


>>But then, a bunch of people with rifles isn't really able to deal with a modern combined-arms army

Apparently you haven't heard about this place called "Iraq". "Afghanistan" neither.

This is precisely what the insurgencies in both countries are doing: using small arms to bring a modern army effectively to its knees by imposing a cost which is too high in blood and treasure to be politically palatable.

Sure, we routinely gun them down like dogs, but they're still there, and we're trying to get out as fast as we possibly can.


Not to detract from your valid point, but the distinguishing of those cases is that the occupying forces have a 'politically palatable' problem on both sides. If they wanted to, they could raze both countries to the ground, not even using nukes, and the small arms of the insurgents wouldn't do much. It's a combination of the guns and the moral high ground that is bringing the armies to their knees.

Not that I think it's a bad thing that the government is unwilling to slaughter civilians. But when we're discussing armed revolution as the only way to preserve the state from the enemy, that unwillingness might not be on the table.
posted by Lemurrhea at 10:50 AM on June 28, 2010 [1 favorite]


No, what you mean is you don't like what I'm saying so SHUT UP I'M AMERICAN AND WE'RE DIFFERENT USA USA USA.

I disagree with the reason but not the request.
posted by norm at 10:55 AM on June 28, 2010 [1 favorite]


I'm ambivalent about the ruling, but isn't this the same sort of judicial activism that the "strict constructionists" decried in Roe v Wade?

It's only judicial activism if strict constitutionalists disagree with it. Citizens United v FEC on the other hand, was just good conservative clarification.
posted by clarknova at 10:55 AM on June 28, 2010 [1 favorite]


For instance, how much more often would an African-American charged with a drug crime see a concomitant gun charge (possibly with sentence enhancements) than a white person charged with the same drug crime, based solely on his jurisdiction?

Actually, I don't think that'd be a very interesting statistic, as most of the concurrent gun charges have to do with either 1) possessing a firearm while a felon, or 2) using a firearm in the commission of a felony.

Neither of these is going to be affected in the slightest by the relative strictness of local gun ordinances.
posted by valkyryn at 10:57 AM on June 28, 2010


It's only judicial activism if strict constitutionalists disagree with it

I believe, but am not certain, that Bush v. Gore was the first Equal Protection argument that Scalia ever voted in favor of.
posted by norm at 11:00 AM on June 28, 2010


ALL YOU FURRINERS BITCHING ABOUT AMERICANS BEING OVERLY DOMINEERING AND AGGRESSIVE CAN SUCK IT.
posted by Pants McCracky at 11:01 AM on June 28, 2010 [1 favorite]


Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.

I'm ambivalent about the ruling, but isn't this the same sort of judicial activism that the "strict constructionists" decried in Roe v Wade?


No. Valkyryn has already said something similar to what I'll say.

Frankly, it just seems like you're using the phrases "judicial activism" and "strict constructionists" as handy weapons in a political debate without meaning much by them. (By the way, there are no "strict constructionists" on the Supreme Court; as Scalia has explained, if you were to strictly construe the First Amendment's reference to "free speech," you'd reach the absurd conclusion that it doesn't apply to a written text.)

As valkyryn said, the Second Amendment is a specific provision. It must be interpreted to mean something. And it clearly states that a "right" exists. That's not to say the interpretive issues are easy, but they're clearly issues.

In contrast, in Roe v. Wade, what provision was the Court interpreting? What relevant right does the Constitution announce? When I read the Roe opinion in law school, I was shocked at the poor reasoning with which the opinion listed a string of barely related constitutional provisions, cited a few off-point cases, and then declared that abortion rights followed from these sources. In fact, I hesitate to even call it "reasoning." Frankly, it was a raw power grab, thinly veiled with citations.

What I've just said is totally aside from my political views or policy preferences. This is all fairly uncontroversial (though something of an open secret) even among liberal law professors. Incidentally, I would prefer to live in a country with a Constitution that had no right to bear arms and that did have a right to get an abortion. But that's not what our Constitution says. Well, it says that now, in that the Court's interpretations become part of the Constitution. That's fine with me in the case of Roe, and I wouldn't want to see it overturned now (we're way past the point of trying to keep the legal issue free of politics), but the decision wasn't legally justified in any conventional, non-radical sense in 1973.
posted by Jaltcoh at 11:03 AM on June 28, 2010 [6 favorites]


I believe, but am not certain, that Bush v. Gore was the first Equal Protection argument that Scalia ever voted in favor of.

Needs must. It's a living document, after all.
posted by clarknova at 11:06 AM on June 28, 2010


Actually, I don't think that'd be a very interesting statistic, as most of the concurrent gun charges have to do with either 1) possessing a firearm while a felon, or 2) using a firearm in the commission of a felony.

Right, fair enough. The sentencing enhancements issue is separate. I guess the relevant statistic might be: how much more often are African-Americans convicted of simple possession of an illegal handgun than whites? I'm thinking here of car stops in New York, where all passengers can be convicted for possession of the any weapons found in the car, or cases where other charges are dropped and the only charge left is the illegal weapon. In majority-white Kentucky, that weapon is much more likely to be legally registered than it is in majority-black DC.
posted by anotherpanacea at 11:16 AM on June 28, 2010


What we do know is that countries which seek to repress the right to speech have always disarmed the populace first, why take chances?

furiousthought makes the point about ME swimming in guns and there being little in the way of political liberty. But the old chestnut of "first take away the guns then take away the constitution" trotted out by the NRA, is dumb from the other side as well. We've had the constitution violated repeatedly in this country and all the guns did nothing to prevent it. GWB made a mockery of this little chestnut. One can calmly conclude that guns do absolutely NOTHING to prevent the constitution from being violated, rights being taken away (hello, prop 8 in CA!), or any number of other myths promulgated by the gun lobby. It's a crock of shit.

How to treat guns in a society is a practical problem - not a matter of principle. The right always tries to make it a matter of principle, because that way they don't have to answer to the real world consequences of widespread gun ownership, and it's easy to endlessly argue principles. But it's easy to debunk this "matter of principle" - it's not. The second amendment presumably doesn't restrict itself to guns as specific mechanical devices - otherwise we'd be stuck with muskets of that era, and no gun lobbyist - for obvious reasons - would like that. Clearly, what was meant by arms was weapons in general (I believe the interpretation which says it was formulated in a time when regular armies were not a permanent part of the landscape and the geopolitical situation made a population based militia a viable option). But if we mean "arms" in general, then why NOT suitcase nuclear bombs indeed? Obviously, because no matter the principle, in practice it would be a disaster. So we agree it is PRACTICE that matters? OK, then in practice gun ownership has been a disaster, and time to drop the nonsense about principle. Let's address it as a practical matter. That's what should guide our policy - what is the net effect of widespread gun ownership in society - and go from there.
posted by VikingSword at 11:23 AM on June 28, 2010 [1 favorite]


To make a slightly inflammatory statement, where exactly is the defensive value in a handgun? I've never figured out how those devices could be used defensively. Is the threat of harm really a successful deterrent?

Often it is. In his survey on defensive gun use, Kleck found that 75 percent of those who'd used a gun in self-defense brandished the gun (which suggests that 25% merely mentioned it), yet only 23 percent fired it, and only 16 percent fired at their attacker. Clearly, most people on both sides of the confrontation were more than happy to withdraw rather than press the issue.

That said, if you're under immediate threat of death or serious bodily harm, the defensive value in a handgun is that a dead or severely wounded person is much less capable of hurting you. It's not pretty, but in that kind of a situation, pretty much nothing is.
posted by vorfeed at 11:25 AM on June 28, 2010 [1 favorite]


OK, then in practice gun ownership has been a disaster, and time to drop the nonsense about principle. Let's address it as a practical matter.

Constitutional discussions aren't easily shoehorned into pragmatics this way. The text says what it says. The Second Amendment says "the right of the People to keep and bear arms shall not be infringed." It doesn't say "the right of the People to keep and bear arms shall not be infringed unless it turns out to be problematic." True, pragmatics aren't irrelevant to constitutional issues, but they chiefly operate to aid in selecting the most practical from among the options permitted by constitutional principles.

Okay, so guns are a problem. Fine. But they're also protected by the Constitution to some extent. You want to change that, you can, but the Constitution is a principled document which makes it difficult to interfere with the rights it creates, which is actually a good thing, cause it'd be really practical to suspend, say, the freedom of speech.

And note that nothing in this decision said that the right to bear arms is absolute. Felons will still not be able to own guns, and states can still require you to register them. But the option of "No guns, period" isn't permitted by the Constitution. If you want to change the Second Amendment, you need either a principled argument, or a practical matter so weighty that you can convince two-thirds of the state legislatures to adopt a constitutional amendment.

This is how it's supposed to work.
posted by valkyryn at 11:34 AM on June 28, 2010 [3 favorites]


It doesn't say "the right of the People to keep and bear arms shall not be infringed unless it turns out to be problematic."

Arms. Not just guns. Guns are arms. But so are suitcase nuclear bombs so:

But the option of "No guns, period" isn't permitted by the Constitution.

there should be no blanket ban on suitcase nuclear bombs? Or is your out that:

And note that nothing in this decision said that the right to bear arms is absolute.

and that therefore we can ban an entire class of arms? Because if that's your out, my next move is to affirm the right of all people to have guns that are wood carvings (or soap, per Woody Allen), but none other. Anyone who wants a mechanical gun will then be in the same room as the guy who wants a suitcase nuclear bomb. Problem solved. Oh, and we can address "function" as arms as well - after all, the wooden gun can be a weapon ("arms") as well, since you can always clobber someone over the head with it.

We can play these games all day long. Laws are passed not based on some nebulous matters of principle, but for their practical effects on society - that's what underpins their entire reason for being. So too with guns.
posted by VikingSword at 11:44 AM on June 28, 2010


Fraxas: To make a slightly inflammatory statement, where exactly is the defensive value in a handgun? I've never figured out how those devices could be used defensively. Is the threat of harm really a successful deterrent?

If you're asking about the practical advantage of a handgun over a shotgun or rifle, then the pistol has a lot going for it size-wise. Pick up a yardstick and imagine that you'd never want to point one end of it at anything you value. Moving around indoors with something like that is incredibly awkward. Even outdoors it is still unwieldy and conspicuous. Less of a problem with handguns.

People treat guns like a totem which will protect them from danger and stop trouble (though the myth might improve deterrence too). Even with training and attempting to avoid doing harm to themselves and innocent bystanders, someone wielding a gun defensively has to ask when and if they're going to point or fire a gun at people who get too close and do this under stress. I don't think that's at all easy.

vorfeed: According to that table, in the total polled incidents 75% brandished it (implying that 25% had a gun but did not pull it?) and 53% referred to the gun verbally (multiple selections were valid in that top table).
posted by Mercaptan at 11:52 AM on June 28, 2010


My claim was off, but not by much. Prior to Bush v. Gore, Thomas, Rehnquist, and Scalia had invoked-- collectively-- Equal Protection on two votes for non-Affirmative Action cases (they'd considered EP to bar AA on previous occasions a total of 19 votes).

source.
posted by norm at 11:57 AM on June 28, 2010


OK, then in practice gun ownership has been a disaster, and time to drop the nonsense about principle. Let's address it as a practical matter. That's what should guide our policy - what is the net effect of widespread gun ownership in society - and go from there.

Fine. As a practical matter, how are we going to get rid of roughly 300 million guns, of which 100 million are handguns, when the American people are a) Constitutionally permitted to own them and b) largely opposed to gun bans?

If gun ownership has been "a disaster" -- and I'd strongly question that, given that barely 0.03% of our guns harm anyone each year (300 million guns, just over 30K fatalities and 70K injuries) -- then we need a non-disastrous gun policy... yet judging by the Drug War, a War On Guns would be an even greater disaster. It would remove oversight into the gun trade, drive guns into the black market, create yet more distrust of the police and government, and further enrich the prison-industrial complex at great cost to the people.

In short: banning guns in America is not a "practical matter". If you want to do something about shootings, then do something that works: divert law enforcement money to community policing, increase funding for social safety nets and mental health treatment, and/or legalize drugs to undercut organized crime.

Sorry, but blaming guns for American violence has absolutely nothing to do with practicality, and everything to do with "nonsense about principle". The vast, vast, vast majority of American gun owners have never harmed anyone with their guns, and never will. That is a big part of the "real world consequence of widespread gun ownership" in America, and if "laws are passed not based on some nebulous matters of principle, but for their practical effects on society", then it seems obvious that turning 80 million citizens into criminals to try to prevent 100K casualties per year is neither reasonable nor practical.
posted by vorfeed at 11:59 AM on June 28, 2010 [8 favorites]


Because if that's your out, my next move is to affirm the right of all people to have guns that are wood carvings (or soap, per Woody Allen), but none other. Anyone who wants a mechanical gun will then be in the same room as the guy who wants a suitcase nuclear bomb. Problem solved. Oh, and we can address "function" as arms as well - after all, the wooden gun can be a weapon ("arms") as well, since you can always clobber someone over the head with it.

Your argument is predicated on the assumption that there is no difference between pointy sticks, firearms, and nuclear weapons, an assumption I don't feel any particular obligation to take seriously.
posted by valkyryn at 12:25 PM on June 28, 2010 [1 favorite]


So is anybody going to address VikingSword's substantive point that the constitution in fact does not specifically confer a right to own or use guns, but rather, a more general right to bear arms, raising the question of why certain categories of arms can constitutionally be subject to blanket bans (hand grenades, suitcase nukes, anthrax spores) while others aren't?

It's a legitimate and very difficult question for those towing the principles-based line (and I'd mention I'm not personally an advocate of any firearms bans, just fastidious when it comes to questions of legal reasoning).
posted by saulgoodman at 12:37 PM on June 28, 2010


Your argument is predicated on the assumption that there is no difference between pointy sticks, firearms, and nuclear weapons, an assumption I don't feel any particular obligation to take seriously.

And why should you, considering that you'd be unable to make any credible argument? After all, we are discussing matter of law and how they govern society. I read it, and you read it and we bring our interpretations to it. You cite: "the right of the People to keep and bear arms shall not be infringed" - and I think it is outrageously disingenuous of you to claim that inherent in that statement is absolute clarity which will easily allow us to decide what arms are and therefore to decide the "difference between pointy sticks, firearms, and nuclear weapons".

Sorry, but all these need to be clarified. And I'm quite happily confident that we'll tie it all in knots in no time at all, trying to decide:

1)Why arms is supposed to be limited to guns
2)And if guns, why not limited to that which the authors of that amendment were familiar with, rather than what has evolved to today (and which we may reasonably claim they might have decided differently had they known what it would evolve to technologically)
3)And if guns of today, why not guns of tomorrow, which if they were to keep shrinking might shrink the suitcase to a largish gun - thus again obliterating your distinctions and focus on "guns", and the neat challenge of your defining guns.

And if we as a society are going to have the absolute right to determine what "guns" means in practice, I see no reason why we can't agree to the wooden ones, and ban all others if we so shall choose. But if not, then you are obligated to address all the points I enumerated - at which juncture it will become a swamp of interpretation and I'll not cede one inch. So good luck - but you don't have an argument.
posted by VikingSword at 12:38 PM on June 28, 2010 [1 favorite]


Your argument is predicated on the assumption that there is no difference between pointy sticks, firearms, and nuclear weapons, an assumption I don't feel any particular obligation to take seriously.

No, his argument is predicated on the fact the constitutions specifically protects the right to bear arms. Presumably, if the authors had meant to be more particular, they could have been, because guns certainly weren't the only category of arms available even in their day (cannons, swords, knives, etc., existed and were in common use at the time, even among militias, yet the constitution didn't limit the right to bear arms to any particular class of weapon in common usage).
posted by saulgoodman at 12:40 PM on June 28, 2010


vorfeed, you are taking on a strawman. It is my personal belief that gun ownership is problematic - but it is not my political position that we should ban them, if you read my statements carefully, nowhere do I advocate that we should do so. My argument is simply to disembowel the ridiculous "principle". My claim is that it is all praxis. And therefore, as I said - let's decide on practical grounds. What that should be, I have an opinion about (ban them), but not insistence - if it can be demonstrated that some type of compromise is best for the overall well-being of society, I'm happy to go along. Bottom line: what I'm asking is that this issue not be decided on dubious grounds of principle, but on pragmatic considerations. I don't see the 2nd amendment as having any practical import here.
posted by VikingSword at 12:44 PM on June 28, 2010


given that barely 0.03% of our guns harm anyone each year

Oil and petroleum products spill at roughly 0.001% of the volume used & transported in the US. Events with severe consequeces, even with low probablilities are still are high risk.
posted by Anonymous 5$ Sockpuppet at 12:51 PM on June 28, 2010


Second Amendment cases and discussions are always an abrupt reminder to me that, in a lot of cases, people with a liberal bent aren't actually any more respectful of or thoughtful about the Constitution and government than nutso conservatives are, despite the fact that my positions on most issues could reasonably be described as liberal.

If people who hate guns can ignore or conveniently interpret the Second Amendment to produce their preferred policy results, people who hate gays or blacks or lib'rals can do the same any you have no legal high ground from which to look down on them. Whether you loathe or love guns, it strikes me as tendentious at best to argue that the 2A doesn't protect an individual right to own them in the United States. That may be a good thing. It may be a godawful terrible thing. But to argue it isn't a thing because you don't like the result is disingenuous.

It's one of the reasons I can't really describe myself as liberal despite agreeing with self-professed liberals on the great majority of issues.
posted by Justinian at 12:54 PM on June 28, 2010 [1 favorite]


I swear--I really don't even agree with gun bans. As a kid, I won hams and turkeys galore at Youngstown volunteer fire department turkey shoots. And yet, I too find the principles-based argument for the second amendment really a ridiculous and dishonest cop-out.

Can you explain why I shouldn't, considering the points argued above by VikingSword?

And remember, I'm interested in reasons, not feelings.
posted by saulgoodman at 1:06 PM on June 28, 2010


Okay, I think I see where you're going, and apologize for taking your deliberate straw man seriously. Missed that one.

Note that I'm not particularly tied to guns as such--don't own any, ambivalent about whether not I want to--and am entirely willing to expand this to a more general level.

Still, I think that reducing the whole thing to praxis is improper. Principle does, as I argued above, set the range of permissible constitutional options. Let me set forth a couple which seem to govern Supreme Court jurisprudence:

- If the language of the Constitution suggests that it's trying to carve out a civil right, any interpretation of the Constitution which trivializes that right is probably doing it wrong.

- Once the Constitution carves out a civil right, any government infringements of that right--and there will and should be infringements--are disfavored and subjected to intense scrutiny.

So here, it says that the right to bear arms shall not be infringed. What does that mean? Well, most generally, it means that people can own weapons, yes? That's simply the most obvious and literal way of reading it. We can have a debate about what work the reference to militia does in the admittedly convoluted sentence, but at minimum, the Second Amendment appears to be about people owning weapons. Agreed?

If so, working from the first principle above, limiting that right to "weapons" of trivial use and effect, that would seem to eliminate any real value to the right described in the Second Amendment. As guns are--and were when the Constitution was written, for those who care about such things*--the main and most effective devices for significant and effective personal armaments, saying that you can sharpen sticks but can't own guns under any circumstances would seem to empty the Second Amendment of any real value. So, I would argue, an outright, absolute gun ban is not permitted by the Second Amendment.

Yet no right is or can be absolute. So we draw theoretical distinctions which shape that right. A gun can kill a decent number of people in a short amount of time, sure. But explosives can kill thousands of people in seconds. Nuclear devices? Millions. Does the Second Amendment require that we permit such devices? Not necessarily. Limiting the right to own weapons to semi-automatic firearms seems to be a reasonable--and pragmatic--compromise which both limits the populace's access to weapons of significant power while leaving the right with real teeth.

There's my principled argument. As I hope you can see, it isn't fixated on guns as such, though it happens to turn on them given our current technological state.

But also note that the overall well-being of society isn't a criteria here. That isn't what the Court was asked to decide, nor is it really relevant to the constitutional question. If the country decides that, you know what, we'd really be better off if we outlawed guns, there is a way that decision can be implemented, and it's called a "Constitutional Amendment." Not sure I'd oppose it, to be honest. But that's what it requires.

*Not sure I do, to be honest. Just throwin' it out there.
posted by valkyryn at 1:12 PM on June 28, 2010 [1 favorite]


Because there are no absolute rights, for one. Virtually all of the rights enumerated in the Constitution have been, at one time or another, parsed and limited, because there's always some cretin who will take an "absolute right" too far.

So the legislatures and the courts have sought to balance the public good of individual self-defense via legalized guns with the public good of collective self-defense via criminalized guns. And so we're back to whether the courts feel the legislatures have gone too far toward the latter.
posted by Etrigan at 1:13 PM on June 28, 2010


Let me throw a little in about how restrictions on explosives and nuclear devices could survive judicial scrutiny. Admittedly, the Court hasn't announced its balancing test, but if we analogize from First Amendment jurisprudence, we need to ask what the government's compelling interest is here.

So what's the government's interest in restricting access to weapons? Well, to keep people from dying, obviously. But it would seem that the government's interest to keep people from blowing up buildings or entire cities would be a bit more compelling than to keep people from killing each other individually, just on pure numbers. So the government will be justified in placing more restrictive controls on access to more destructive weapons than less destructive ones, even to the point of banning them outright.

On the other side, it's not obvious that the government has an interest in preventing law-abiding citizens from defending themselves with justified deadly force. If a guy comes at you with a knife, you can shoot him. You just can. And arguing that taking away the most effective means of doing that leaves the Second Amendment intact somehow is kind of a non-starter, i.e. a weapon which is pretty good at exerting deadly force on one person at a time is going to be a lot harder to ban outright.

Either way, just because the government can't ban something doesn't mean they can't regulate the shit out of it.
posted by valkyryn at 1:24 PM on June 28, 2010


So it's a judgment call informed by normative standards and extra-textual interpretations of the law as writting.

Or as it's more pejoratively known when we don't agree with the decision, judicial activism.

Note that, the second amendment actually makes a whole lot more sense and is a lot more self-consistent and consistent with the law as it's been practiced since its adoption amendment if you just, you know, actually leave the militia part in your reading of the text, rather than creating the "self-defense" justification, because at the time the amendment was adopted, all states still had armed militias which were called upon to join forces and serve as the national army in the event of need because we didn't even have a standing army.

In which case, the language about the right of state militias to bear arms out of the necessity to "defend liberty" makes a whole lot more sense and doesn't require any new rationales not already explicitly provided in the actual text of the second amendment.

I'm not making an originalist argument here, I'm just debating whether or not the courts have effectively invented a new right over the years, by refusing to acknowledge the 800 pound gorilla in the room, which is that the constitution never explicitly held out a right to bear arms outside the context of "a well regulated Militia."

How we got a right for individuals to bear arms out of an amendment specifically conferring the right to bear arms not to individuals but to well-armed militias is a mystery I'm still waiting for someone to solve to my satisfaction. To me, it looks like a corrupted data file or something.
posted by saulgoodman at 1:31 PM on June 28, 2010 [1 favorite]


damn. so many typos today.
posted by saulgoodman at 1:32 PM on June 28, 2010


I'm not making an originalist argument here, I'm just debating whether or not the courts have effectively invented a new right over the years, by refusing to acknowledge the 800 pound gorilla in the room, which is that the constitution never explicitly held out a right to bear arms outside the context of "a well regulated Militia."

People more interested in and knowledgeable about such things than I have said that "regulated" used to be more like "trained" than we take it to be today, which renders that gorilla into "We need to make sure people can shoot, so let's allow them to do so."

Also, even if you leave in the bit about the militias, the rest of it does still say "the right of the people to keep and bear arms, shall not be infringed." It's a more explicit individual right than is free religion or speech.
posted by Etrigan at 1:44 PM on June 28, 2010


Perhaps we shouldn't be originalists, but if you're going to play the originalist game, please don't claim that the original intention of the 2nd Amendment necessarily implicates the 'universal militia' concept. Denying arms to minorities was a common tactic in the 18th Century, even if the minorities targeted at that time were Catholics. The original intent of the 2nd Amendment was clearly to prevent that kind of targeted gun ban: the history here is clear.

Now, if we don't think that minorities any longer require their own weapons to protect themselves from vigilantes or corrupt law enforcement officers, that's a separate question. There's no reason to impute that belief to the founders or the authors of the 14th Amendment.
posted by anotherpanacea at 1:47 PM on June 28, 2010


In general it is my experience that the 2A fanatics are generally opposed to any and all civil rights beyond gun ownership.

I take it you're sampling is very tiny and/or relegated to a specific community. My experience is exactly the opposite and as I work for a licensed dealer, go to eeeevil gunshows, do Range Officer duties at two machinegun shoots a year, and just attended the SHOT Show in Vegas (a huge tradeshow) I'd bet my sampling is considerably larger. Don't get me wrong, I *know* people who fit that mold but any time you define a group of people that covers millions of individuals (the NRA alone has 4 million members) you can easily cherry pick the nutcases to build your strawman.
posted by RevGreg at 1:47 PM on June 28, 2010 [1 favorite]


I was going to leave "militia" out of it, but you went there, so...

"Militia" most properly means "all males between 18 and 45."

Eugene Volokh has done most of the scholarship on that point, and to my knowledge, no one has successfully disputed his historical reading of those texts. The idea that "militia" referred to some special subset of the citizenry who were somehow more authorized to use weapons that pure civilians is actually rather new.
posted by valkyryn at 1:50 PM on June 28, 2010 [1 favorite]


If so, working from the first principle above, limiting that right to "weapons" of trivial use and effect, that would seem to eliminate any real value to the right described in the Second Amendment. As guns are--and were when the Constitution was written, for those who care about such things*--the main and most effective devices for significant and effective personal armaments, saying that you can sharpen sticks but can't own guns under any circumstances would seem to empty the Second Amendment of any real value. So, I would argue, an outright, absolute gun ban is not permitted by the Second Amendment.

Thank you for making as serious effort to address the issues. But just as seriously, and not trivially, I disagree with practically every statement above. And I disagree not merely pro forma, or for the sake of argument. Starting with this:

"But also note that the overall well-being of society isn't a criteria here. That isn't what the Court was asked to decide, nor is it really relevant to the constitutional question."

This is just flat out incorrect, seems to me.

The constitution was created with the sole purpose of building a just society where every individual is granted certain rights, while still recognizing that they are part of society, and that was touched upon by addressing itself to the government (or how society organizes itself). To now say, that in interpreting that constitutional document, the justices must not address themselves to the ultimate purpose of that constitution is not only bizarre, but actually impossible in practice. This is the entire reason why we even probe the intent of the writers of the constitution.

You cannot avoid it - and you yourself reference it constantly, by for example:

"limiting that right to "weapons" of trivial use and effect, that would seem to eliminate any real value to the right described in the Second Amendment. As guns are--and were when the Constitution was written, for those who care about such things*--the main and most effective devices for significant and effective personal armaments, saying that you can sharpen sticks but can't own guns under any circumstances would seem to empty the Second Amendment of any real value."

Huh? You are talking about the time when the constitution was written. That's your criterion for what to regard as a meaningful weapon, and thereby allow guns (which I'd point out limits us to muskets of that era and nothing more). That's where your argument dies an instant death, because the moment you allow that as a criterion, the game's over. Like this:

Why reference the time and societal realities of the writing of the constitution - for intent. If so, then it only applied to those specific realities - and that's why my saying "muskets" is not a joke, it is a serious assertion which I made before, i.e., if they had known about how modern weapons would have evolved - you argument here breaks down dramatically:

"Limiting the right to own weapons to semi-automatic firearms seems to be a reasonable--and pragmatic--compromise which both limits the populace's access to weapons of significant power while leaving the right with real teeth."

This is made out of whole cloth. There is zero grounds for asserting that this is what the constitutional intent was - this is merely YOUR interpretation.

The fact remains, that if they did not limit arms in any way, then yes, absolutely it means nuclear weapons. How could it not? On what grounds? And so this has no grounds in the constitution:

"Does the Second Amendment require that we permit such devices? Not necessarily."

Necessarily, it does, unless:

The grounds would be that this was not the technological reality of their times (but then, neither were automatic weapons - we're back to muskets), or more generally the laws were written to further the welfare of the society (and here I'd point to the reference to militia as an expression of that, not merely individuals). And you know what? I agree with that!

I agree that the only grounds for banning individual nuclear weapons (my exaggerated example) is the good of society - and I'd argue as follows:

a)The framers of the constitution had the welfare of the society as the ultimate underpinning of the constitutional laws (ultimate justification).

b)They crafted their laws in reference to the society and reality as it was back then

c)The reality of society has changed since then - nuclear weapons appeared, automatic weapons appeared etc. It is therefore right to reference the new reality of society, and based upon (a) therefore conclude that we should ban whole classes of weapons (nuclear)

d)Extending point (c) above, the new reality is that militias are no longer functional and necessary in this new reality of society and therefore the weapons that went with it - MUSKETS - or even their descendants are no longer relevant, but pointed sticks or no weapons are to be preferred. Note I said "muskets" to point out that while muskets were valid back then given their reality, our reality won't admit of even so lowly a weapon as a musket.

In defining guns, weapons, and arms you are obligated to define them as well as make all the distinctions between edge cases (when does - constitutionally - a gun fade from BB on one end to semi-grenade launcher on the other). To even attempt to do so, involved trying to discern intent, and to do that, we are right back at what the framers wanted - the well-being of society. It cannot be disentangled. And once you do entangle it, we're right back to pointed sticks and nuclear weapons - because the good of society is the controlling factor here.
posted by VikingSword at 1:53 PM on June 28, 2010


On the other side, it's not obvious that the government has an interest in preventing law-abiding citizens from defending themselves with justified deadly force. If a guy comes at you with a knife, you can shoot him. You just can. And arguing that taking away the most effective means of doing that leaves the Second Amendment intact somehow is kind of a non-starter, i.e. a weapon which is pretty good at exerting deadly force on one person at a time is going to be a lot harder to ban outright.

This won't work for the simple reason that the 2nd references "militia" - how is that in any way related to an individual defending himself with deadly force? And why do you suppose that the 2nd was in any way crafted for an individual self-defence? I can see no grounds for this interpretation. An argument can be made that a militia was necessary for communal defense. That is in fact the intent of the 2nd amendment. And if so, given the realities of the world today might involve much more substantial weapons for communal defense - and you just let the camel's nose under the tent, and we're off and running with all sorts of weapons.
posted by VikingSword at 2:06 PM on June 28, 2010


lso, even if you leave in the bit about the militias, the rest of it does still say "the right of the people to keep and bear arms, shall not be infringed." It's a more explicit individual right than is free religion or speech.

"The people" is a term used to describe individual rights? Since when? Elsewhere throughout the constitution and bill of rights it's used synonymously with The Republic. At the very best, the language is ambiguous, but since when do we essentially ignore qualifying phrases when we parse sentences in any other area of life? That's how schizophrenics read sentences.

Also, the term "militia" only crops up very specifically at a few key points in the constitution and in the bill of rights. And just by coincidence apparently, those other provisions all specifically relate to the system of state militias using the same term. The use of the term isn't interpreted loosely where any of these other provisions are concerned.

Look, I'm not even concern trolling you: I got my first shotgun when I was nine (though I don't keep guns around the house anymore) and I'm no advocate of gun bans. And I have no problem agreeing that the right to keep guns probably falls under the category of protected rights not specifically enumerated in the constitution, but as someone who's studied reading and writing and worked as a technical writer for much of my career (even as a legal code editor for several of them), it still seems laughably bullheaded and selective to me to lean on the second amendment as a principled legal justification for individual gun ownership. Sorry. I hope and pray someone with a better argument can convince me one day so I can stop having to have this lame ass argument.

Eugene Volokh has done most of the scholarship on that point, and to my knowledge, no one has successfully disputed his historical reading of those texts

Oh, well, if some respected authority says so...
posted by saulgoodman at 2:08 PM on June 28, 2010


"The people" is a term used to describe individual rights? Since when? Elsewhere throughout the constitution and bill of rights it's used synonymously with The Republic.

Really? Like as in "the right of the people peaceably to assemble" or "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"?
posted by Etrigan at 2:13 PM on June 28, 2010 [1 favorite]


vorfeed, you are taking on a strawman. It is my personal belief that gun ownership is problematic - but it is not my political position that we should ban them, if you read my statements carefully, nowhere do I advocate that we should do so.

I'm taking on the very idea that pragmatism suggests that "gun ownership is problematic". As I demonstrated above, gun ownership is not actually problematic for the vast majority of guns and gun owners. You want others to base their discussion of this issue on practicality rather than principle, and you want them to stop deciding based on guns good, yet you reserve the right to decide based on guns bad -- why?

As a practical matter, strong gun control (whether it be gun bans or "some type of compromise") is not even on the political landscape in the United States. It is unpopular, expensive, massively difficult to enforce, and returns little practical benefit to "the good of society" when measured against its potential cost. That's what you're faced with when you decide this issue on pragmatic considerations. We may as well discuss the practical considerations involved in banning rocks in the desert.

Bottom line: what I'm asking is that this issue not be decided on dubious grounds of principle, but on pragmatic considerations. I don't see the 2nd amendment as having any practical import here.

The Constitution has practical import upon the laws of the United States, by design. On top of that, it strongly influences public opinion -- and public opinion is one of the main "pragmatic considerations" which stand between America and strong gun control. There's pretty much no way we can leave the Constitution out of this, nor are you likely to convince anyone (who knows anything about guns, at least) that the Framers intended to give people the right to have muskets, but not rifles or handguns.
posted by vorfeed at 2:13 PM on June 28, 2010 [2 favorites]


was going to leave "militia" out of it, but you went there, so...

"Militia" most properly means "all males between 18 and 45."


So how do you square that claim with this language in Article I, section 8, clause 16 of the constitution:

"organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

Perhaps, it means "all males between 18 and 45" when interpreted most charitably to gun rights advocates, but it's a stretch to say "most properly."

Unless you think the constitution also provides that states should appoint officers to have authority over and to train all males between 18 and 45.
posted by saulgoodman at 2:14 PM on June 28, 2010


Really? Like as in "the right of the people peaceably to assemble" or "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"?

I admitted "the people" is ambiguous. The term is also clearly used elsewhere to refer to the Republic, so my point is that this construction alone doesn't provide any clear indication of the intent (not that it matters). Again, there's a qualifying phrase to clear up ambiguity.
posted by saulgoodman at 2:19 PM on June 28, 2010


VikingSword, are you aware that you're making a slippery slope argument here? The answer to your question is simple: the 2nd Amendment has been interpreted by the Supreme Court, they've set the limits of the right purposively, in self-defense, and they've signaled how they intend to resolve ongoing conflicts over conflicting interests. These Justices will continue to enforce their interpretation until they leave the bench, and by then the matter will have become a solid part of American jurisprudence, like the exclusionary rule or the right to privacy.

A separate question: what makes you think that "intent" is the only value in plumbing historical realities of the author's context? The actual practice is to ignore "intent" as it requires us to read the minds of a number of different legislatures, and instead go looking in history for the "original meaning" of words used in the document, especially phrases that were clearly lifted from other documents like state constitutions or English jurists (i.e. Blackstone.) It doesn't matter if the founders intended to invoke those constitutions or laws, although their letters suggest that they did. All that matters is that the average constitutional ratifier would have picked up on the reference and assumed the connection, assumed they were voting to ratify a Constitution that limited government thus and so, that had these branches, that assigned and separated powers in this manner, etc. The same thing goes with the 14th Amendment: we ask, what meanings did the Reconstruction Congress of 1868 convey in picking the particular phrases they did? What purposes were they trying to achieve? That's why the disarming of African-Americans in 1866 is so important: it's clearly one of the things that 14th Amendment was passed to prevent!
posted by anotherpanacea at 2:20 PM on June 28, 2010


It's always seemed specious to ignore the militia language. It's not as though any of the amendments in the bill of rights have similar justificational language prepended:

It's: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

...and not: Vigorous and uninhibited public debate being essential to the functioning of the body politic, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It's: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

...and not: Allowing the military and its members to impose arbitrary demands upon civil society and its members being incompatible with the operation of a free society, no Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

It's: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

...and not: The security of one's person and one's personal property and the liberty from arbitrary intrusions thereof being intolerable intrusions into the lives of free men and detrimental to the preservation of a free society, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

...and so forth for the remaining amendments (feel free to insert your own fictional justifications if you see fit).

Only the 2nd has the justificational preamble; ignoring it is something that has been widely done for so long to seem as normal, but it's hard on the surface to see how one can in good conscience assume it to be a meaningless rhetorical flourish irrelevant to understanding the intended meaning of the amendment.

Volokh is very good on the history here but offers little color into the "why": why the justificational preamble at all? Why not just write "The right of the people to keep and bear arms shall not be infringed?"

I don't think Volokh claims that the constitutional right to bear arms ceases to exist if you're female, past age 50, or an invalid, so regardless of the veracity of his scholariship at the micro level -- he is correct, as far as anyone today can tell, as to what "militia" meant to the people of the era -- but that doesn't even begin to address the macro-level issue of "why is the clause tacked on at all, and why am I free to assume it has no impact on the remainder of the amendment?"

It's obviously not the case that it's obvious what the actual point of that clause was intended to be -- if it was clear there'd be not so much room argument, right? -- but, again, it's always seemed specious to me that it is so studiously ignored and written-off, particularly by scholars and other legal minds who in most other areas veer towards considering nuance of every phrase as some sort of holy write, handed-down-from-on-high.
posted by hoople at 2:23 PM on June 28, 2010 [2 favorites]


The answer to your question is simple: the 2nd Amendment has been interpreted by the Supreme Court, they've set the limits of the right purposively, in self-defense, and they've signaled how they intend to resolve ongoing conflicts over conflicting interests. These Justices will continue to enforce their interpretation until they leave the bench, and by then the matter will have become a solid part of American jurisprudence, like the exclusionary rule or the right to privacy.

Yes, of course. That's why we have the SCOTUS as controlling and not every which man who interprets the constitution every which way doing things lawfully in whatever interpretation they see fit. That was never my focus.

A separate question: what makes you think that "intent" is the only value in plumbing historical realities of the author's context?

It certainly isn't the only value, but it is central.

The same thing goes with the 14th Amendment: we ask, what meanings did the Reconstruction Congress of 1868 convey in picking the particular phrases they did? What purposes were they trying to achieve?

And you can't discern that without any reference to intent.

Look, this is ultimately the bigger issue, and an answer to your point (which I agree with) that SCOTUS is controlling as to the meaning of the constitution at any given moment. The issue is the entire purpose - the grand purpose of the constitution, if you wish. It sets forth a way for us to govern ourselves for the maximum benefit of society and the individual within it. In searching for that deeper purpose, we have SCOTUS occasionally reverse rulings, go against precedent, or even in the view of some "invent" rights (Roe vs. Wade). I am not claiming that SCOTUS is not controlling in today's ruling.

The constitution is not some kind of ultimate get out of jail card (look at Guantanamo /rimshot/). The interpretation of the constitution is dependent on the general prevailing opinion. It can be protective, even if, say, 67% of popular opinion is opposed (I think that was the polling in Loving v. Virginia, if I remember correctly), but there are limits. I would argue that it's clear that gay marriage is constitutionally valid, but good luck getting to that result in, say, 1960, even though it's exactly the same text - now, without even changing the constitution, I think it may get affirmed in the next SCOTUS (by next I mean here once all the Bush appointees are gone).

I would argue that the 2nd amendment is something that has outlived its usefulness given the vastly changed society, it is not really applicable. There is no practical purpose to a militia now, certainly none compared to what it was when the 2nd was written. Now, we can either change the constitution, or we can get to our results within it as it stands today when it comes to the 2nd and keep trying ("OK, we'll allow wooden guns" and let them strike that, and so on ad infinitum).
posted by VikingSword at 2:40 PM on June 28, 2010


RevGreg So it is your contention that the Texas Republican party is fringe among 2nd Amendment fanatics? Really?

I also note that the NRA endorsed John McCain and George W. Bush, both politicians who specifically and explicitly advocated violating the 5th Amendment by holding people in a legal black hole at Guantanamo Bay and other facilities. Which is as clear cut a violation of civil rights, the US Constitution, and all the other things you claim guns protect as we can find.

The NRA endorsement did not include qualifiers regarding the 5th Amendment violations of Bush, or the support for 5th Amendment violations by McCain.

Please show me how, as per your claim, gun ownership has protected our civil rights. My contention, that 2nd Amendment fanatics don't care about civil rights in general seems backed by the actions of 2nd Amendment fanatics. Did they march on Washington to demand an end to the anti-Constitutional practice of locking people in cages, without trials or even charges, forever? I can't seem to recall the NRA or any 2nd Amendment fanatics doing that.

Please, enlighten me as to the vital role 2nd Amendment fanatics have played in any civil rights movements.
posted by sotonohito at 3:03 PM on June 28, 2010


The idea that the right to privacy was created out of whole cloth is put to rest simply by reading the Constitution. It was explicitly enumerated in 1789, with the Fourth Amendment's "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

That's more explicitly a protection of privacy than the Second Amendment is of the right to have a handgun or a concealed weapon.
posted by one more dead town's last parade at 3:04 PM on June 28, 2010


Please, enlighten me as to the vital role 2nd Amendment fanatics have played in any civil rights movements.
SPELLMAN: How would the Muslim Mosque Inc. handle a Birmingham, Danville, or Cambridge—what do you think should have been done?

MALCOLM X: In Birmingham, since the government has proven itself either unable or unwilling to step in and find those who are guilty and bring them to justice, it becomes necessary for the so-called Negro who was the victim to do this himself, and he would be upholding his constitutional rights by so doing, and Article 2 of the constitution—it says concerning the right to bear arms in the Bill of Rights: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." Negroes don't realize this, that they are within their constitutional rights to own a rifle, to own a shotgun, and when the bigoted white supremacists realize that they are dealing with Negroes who are ready to give their lives in defense of life and property, then these bigoted whites will change their whole strategy and their whole attitude.
He made clear the price white Americans would pay if it refused to accede to black Americans' legitimate demands.
posted by anotherpanacea at 3:15 PM on June 28, 2010 [3 favorites]


That's more explicitly a protection of privacy than the Second Amendment is of the right to have a handgun or a concealed weapon.

Do you think the 4th Amendment explicitly protects the right to choose contraception, an abortion, or to engage in homosexual sodomy? It kind of seems like it protects us from certain kinds of illegitimate "searches and seizures."
posted by anotherpanacea at 3:18 PM on June 28, 2010


*looks around*

Who the fuck is paying for all these billable hours in this thread? Because, hey, not me.
posted by Skot at 3:19 PM on June 28, 2010 [3 favorites]


I would argue that the 2nd amendment is something that has outlived its usefulness given the vastly changed society, it is not really applicable.

I would argue that the 1st amendment is something that has outlived its usefulness given the vastly changed society, it is not really applicable. I mean, just think about it: television, radio, the internet, the rampant spread of pornography... how can we pretend we live in the same world of free expression that the Founders inhabited? Words start wars, they destroy the careers of public servants... clearly it's more important to protect politicians from private scandal (was Clinton's blowjob really relevant? So a Republican congressman likes teenage boys... how is that relevant to the budget deficit or the war in Iraq?) and that means we ought to institute a version of the British slander laws, perhaps combined with some sort of prior restraint for state secrets. Let's keep the public's attention focused on what matters!
posted by anotherpanacea at 3:22 PM on June 28, 2010


While we're at it, let's outlaw straw men.
posted by one more dead town's last parade at 3:37 PM on June 28, 2010


Well, I have an opinion that the 2nd has outlived it's usefulness, as "a well regulated Militia", is no longer "necessary to the security of a free State" - which is the ENTIRE REASON given for the existence of the 2nd. If you feel that it still is, you are welcome to make that argument, and we'll see which position is more reasonable. As to the 1st, I don't think it has outlived its usefulness, but you are welcome to make that argument. After all, that's all it is, from me and from you, us not being the SCOTUS. Whichever sounds more reasonable, will be more convincing, so I'm happily for the 1st and still regard the 2nd as outlived in its usefulness.
posted by VikingSword at 3:37 PM on June 28, 2010


posted by VikingSword I would argue that the 2nd amendment is something that has outlived its usefulness given the vastly changed society, it is not really applicable. There is no practical purpose to a militia now, certainly none compared to what it was when the 2nd was written.

I would argue the Fourth Amendment is something that has outlived its usefulness given the vastly changed society, it is not really applicable. There is no practical purpose for requiring warrants to search persons or property; certainly none compared to what it was when the Fourth Amendment was written. Since we share so much information through email, Facebook, and the Internet, our expectations of privacy have been greatly reduced.

I would also argue the Fifth Amendment is something that has outlived its usefulness given the vastly changed society, it is not really applicable. There is no practical purpose for allowing people to protect themselves from self-incrimination; certainly none compared to what it was when the Fifth Amendment was written. In the War on Terrorism, the safety of the country supercedes the rights of the people.
posted by mattdidthat at 3:45 PM on June 28, 2010


Oh, well, if some respected authority says so...

Oh, please. I haven't the time to make a complex and subtle historical argument of the sort necessary to address the point here, so I cited someone who did. Give me a fucking break.
posted by valkyryn at 3:48 PM on June 28, 2010


A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

You can argue that a well regulated Militia is still as necessary to the security of a free State as it was to protect us from marauding bands and possible invasions of the red coats. Or you can say that today there are no threats to the security of a free State that need a well regulated Militia and that he military as well as police forces can well take care of such threats as do exist to the free State. Tell me which is more reasonable?

Meanwhile, neither:

I would argue the Fourth Amendment is something that has outlived its usefulness given the vastly changed society, it is not really applicable. There is no practical purpose for requiring warrants to search persons or property; certainly none compared to what it was when the Fourth Amendment was written. Since we share so much information through email, Facebook, and the Internet, our expectations of privacy have been greatly reduced.

nor:

I would also argue the Fifth Amendment is something that has outlived its usefulness given the vastly changed society, it is not really applicable. There is no practical purpose for allowing people to protect themselves from self-incrimination; certainly none compared to what it was when the Fifth Amendment was written. In the War on Terrorism, the safety of the country supercedes the rights of the people.

seem to have behind them the same kind of obvious ring of truth as can be heard by the average person. I think letting it stand there and speak for itself, it works wonders as a comparison. I must say, I feel comfortable with my position, given these "counter-arguments".
posted by VikingSword at 3:57 PM on June 28, 2010


posted by VikingSword I would argue that the 2nd amendment is something that has outlived its usefulness given the vastly changed society, it is not really applicable. There is no practical purpose to a militia now, certainly none compared to what it was when the 2nd was written.

I would argue the Third Amendment is something that has outlived its usefulness given the vastly changed society, it is not really applicable. There is no practical purpose for prohibiting the quartering of soldiers in private homes during peacetime without the owner's consent, certainly none compared to what it was when the Third Amendment was written. If soldiers need a place to sleep, they should be provided beds with fresh linens and warm blankets and orthopedic mattresses and mints on the pillows by the citizens of the country the soldiers are defending. If soldiers are defending our country, we should be expected to make every possible sacrifice to make them as comfortable and as well-rested as possible.
posted by mattdidthat at 4:07 PM on June 28, 2010


posted by VikingSword I must say, I feel comfortable with my position, given these "counter-arguments".

It's fun, isn't it? The VikingSword treatment of "The ___ Amendment has outlived its usefulness given the vastly changed society, it is not really applicable. There is no practical purpose for..." can be used on any of the amendments. The 18th and 21st amendments are especially hilarious with the VikingSword treatment. Try it!
posted by mattdidthat at 4:16 PM on June 28, 2010


Well, I have an opinion that the 2nd has outlived it's usefulness

And you may even be correct. But that isn't at all the point. The founders were not idiots. They created a very specific, straightforward mechanism by which parts of the Constitution found to be flawed or having outlived their usefulness may be unambiguously corrected or removed. It's right there in the document! Yay, us!

Ignoring or disingenuously interpreting part of the Constitution because one believes it has outlived it's usefulness is not part of that mechanism. Doing so is far more dangerous than any handgun. There's a word for a government which may ignore or creatively interpret parts of its mandate because it is inconvenient to act legally; tyranny. Congratulations on advocating rule by fiat!
posted by Justinian at 4:23 PM on June 28, 2010 [1 favorite]


I don't see the 2nd amendment as having any practical import here.

Must admit I have been mesmerized by reading this argument, but have to wonder what the point is on the day the U.S. Supreme Court, which has the final word on construing the Bill of Rights unless/until they are constitutionally amended, ruled that the 2nd Amendment ensures a personal -- though not limitless -- right to keep and bear (fire)arms to every U.S. citizen.

I really just dropped by to leave my little stone for Professor Ginsburg. He had a great reputation at Columbia Law too. And his marriage to Ruth Bader Ginsburg was loving and lasting. What a wonderful mensch he was.

.
posted by bearwife at 4:25 PM on June 28, 2010 [1 favorite]


Ignoring or disingenuously interpreting part of the Constitution because one believes it has outlived it's usefulness is not part of that mechanism. Doing so is far more dangerous than any handgun. There's a word for a government which may ignore or creatively interpret parts of its mandate because it is inconvenient to act legally; tyranny. Congratulations on advocating rule by fiat!

Interpreting the constitution is as old as the constitution itself, so deal. You can either accept reality, or ignore it in favor of whatever fantasy you've built up. The reality is that aspects of the constitution wax and wane in applicability and also in ways in which the interpretation of the constitution can be a part of dealing with that problem. Take the example of 18th and 21st, which mattdidthat put forward as absurd examples - you need to repeal that which has an ongoing relevant harmful effect, as alcohol did - and btw. the 18th remains the only amendment repealed in its entirety. So much for "repeal" as a remedy. Because if it dealt with something that had no purchase, there would hardly be a need for such a dramatic measure (say, a faddish substance of abuse that disappeared) - it could easily be re-interpreted to be harmless... take a look at the 18th, you could drive a ten ton truck through it. Meanwhile, look at the 3rd - it was written in an era where such practices were routine (forcible quartering) all over the world, and the framers were reacting to the historic abuses - remember, that a lot of the constitution was written less as a result of the American experience, but of their collective historical memory of especially European history. And what is the practical effect of the 3rd in the reality of today's world and American society? What is the value of this "protection"? Even if we think it has some residual value in exceedingly unlikely circumstances, just to grant the argument, it is odd on its face to hold onto a special amendment of the constitution for that express purpose - it's as if we decided that the forcible taking or use of private property without just compensation was an important right, but then made a separate mention - "and also you are not allowed to take away anyone's chewing gum." Arguably, it's already covered. The only reason why the 3rd made it is because of the historical roots. And yet - you don't see a movement to repeal it, do you? Useless as it is? Same here. The 2nd is dead in practice. We could, but don't have to repeal it. There are plenty of ways around it, through interpretation (something that happens with every SCOTUS anyway), and here come the rights to wooden guns for everyone, and we can all go about more important things, like making a gun policy based on the reality of the situation and not obscure interpretation of dead statutes.
posted by VikingSword at 4:41 PM on June 28, 2010


There's a word for a government which may ignore or creatively interpret parts of its mandate because it is inconvenient to act legally; tyranny.

The the conservatives of the Supreme Court, who already interpreted away the opening clause of the 2nd Amendment as being meaningless, and who interpreted into the really very straightforward 2nd clause a "self-defense" condition in order to allow the banning of certain types of arms, are advocates of tyranny.
posted by dirigibleman at 4:47 PM on June 28, 2010 [2 favorites]


we can all go about more important things, like making a gun policy based on the reality of the situation and not obscure interpretation of dead statutes.

Honestly, don't you think that's been what's going on for the last century or so? Between the move of technology, various legislatures and various courts, hardly anyone is pretending that they're actually setting policy by anything but "Here's how I want things to be, and the Second Amendment totally agrees with me!"
posted by Etrigan at 4:50 PM on June 28, 2010


Interpreting the constitution is as old as the constitution itself, so deal.

Usually people aren't so blatant about deciding on the result they want first and fitting their interpretation to match.
posted by Justinian at 4:52 PM on June 28, 2010


Honestly, don't you think that's been what's going on for the last century or so? Between the move of technology, various legislatures and various courts, hardly anyone is pretending that they're actually setting policy by anything but "Here's how I want things to be, and the Second Amendment totally agrees with me!"

In the everyday political discourse, yes, of course, you are right. But one would've hoped that more had gone into the deliberations of the SCOTUS. Alas.
posted by VikingSword at 4:54 PM on June 28, 2010


Usually people aren't so blatant about deciding on the result they want first and fitting their interpretation to match.

Oh come off it. Read that amendment. "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Please explain to me, who is stretching more to provide a bizarre interpretation - the people who claim that we actually need a well regulated Militia for the security of the State, or the people who recognize the obvious historical truth of how this came about and how this Militia is no longer relevant... and then go ahead and stretch it to mean that a random Tom Dick and Harry not part of any regulated or not Militia ought to be packing a submachine gun. I mean really, if you're going to be doing the "I can't believe" shtick, pick your target more carefully.
posted by VikingSword at 4:59 PM on June 28, 2010


Apparently you haven't heard about this place called "Iraq". "Afghanistan" neither.

This is precisely what the insurgencies in both countries are doing: using small arms to bring a modern army effectively to its knees by imposing a cost which is too high in blood and treasure to be politically palatable.


Ell oh ell - the US Army is nowhere near its knees - the problem with Afghanistan and Iraq is that the US is completely unable to translate its military superiority to political order, partially because the US wasn't honest or smart about its aims, partially because of whopping cultural, logistical, and language barriers, partially because the ghastly way of winning is ghastly and incompatible with the stated aim of the occupations, and partially because the timing is all shot to hell. They're not losing to dudes with rifles (who have learned to rely on other techniques too, like bombs.) When insurgencies do win, militarily, it's because they're supplied with heavier-grade military hardware. The US failure in Iraq and Afghanistan is political, because the wars, especially in Iraq, were emotional wars, not strategic ones.
posted by furiousthought at 5:09 PM on June 28, 2010


Because there is absolutely no reason to read the first bit about the Militia as a limit on the right to keep and bear arms. In point of fact the amendment itself reserves the right for "the people", not communally for a militia. It is right there in the Amendment! You quoted it.

It's semantically no different than if the first Amendment had read:
A well-informed, educated, and literate public being necessary to the security of a free State, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
No one could reasonably argue that, under such a construction, the right to free speech or religion was meant to be limited as a collective right and that individuals did not specifically have the right to free speech. It would be ridiculous. This is similar; the amendment does not say that well-regulated militias must be allowed to keep and bear arms, it says that the people must be. That's what the Bill of Rights is about; individual liberties. It strikes me as disingenuous to argue that the other 9 amendments are all about individual liberties but they decided to throw one collective right in the mix. As number two right after freedome of speech no less.
posted by Justinian at 5:14 PM on June 28, 2010


The the conservatives of the Supreme Court, who already interpreted away the opening clause of the 2nd Amendment as being meaningless...are advocates of tyranny.

I've long thought that defanging the 1st clause allowed the court to circumvent any constitutional argument against standing armies. The intent is obvious in its wording and its context: the citizens should be the soldiery as in any classical republic. If you want to start a military adventure you have to make that case to the entire serving populace, en masse,

This has worked spectacularly well in Switzerland who, with an armed citizenry and no standing army, was able to remain the neutral eye of the storm in two world wars. It's also maintained civilian liberty and prosperity as a result.

Circumventing this allowed us to wade right into Vietnam, the Gulf war, Afghanistan and the Gulf War II, with but the barest peeps of initial protest. The signers and founders were well aware of the dangers of a professional military class separated from civil society. The military industrial machine we currently wield would make them shit their breeches if they could see it.
posted by clarknova at 5:17 PM on June 28, 2010 [1 favorite]


Justinian, are you trying for comedy or incoherence? Are you arguing against yourself? The 1st doesn't start with: "A well-informed, educated, and literate public being necessary to the security of a free State" - something that should have clued you in right then and there.

the amendment does not say that well-regulated militias must be allowed to keep and bear arms, it says that the people must be. You mean militias are not composed of people? What a bizarre interpretation! If it was all about the individual right to bear arms and nothing but that, why mention Militias AT ALL? Huh? Why that non-sequitor? Why don't we have, as you propose, the 1st start with that crazy preamble, which btw., you also distorted, because if the 1st functioned as such, it should have included community colleges or something, not merely as you put it "literate public"... nice move there, champ. Militias - not merely "public". And not simply militias, but regulated militias. And not merely regulated militias, but well regulated militias. Which are necessary for a free State. Gee, all that work and qualifying, and it's all unnecessary? Why couldn't it just be like the 1st.?

You know, you are outraged that I'm somehow outlandishly stretching the constitution to fit my views. What I see instead is a dead statute, which has been kidnapped by the a certain segment of the population for the sole purpose of getting their gun on. And the SCOTUS is ignobly cooperating in this farce by making specious arguments and interpretations which fly in the face of history and common sense, not to mention intent and societal good. Just who is stretching here?
posted by VikingSword at 5:30 PM on June 28, 2010


posted by VikingSword Just who is stretching here?

You.
posted by mattdidthat at 5:32 PM on June 28, 2010


Incidentally, I'm not arguing what gun laws ought to be - I have my views, but that's not relevant for this argument. I'm only wishing that the gun lobby advocated for their views honestly like everyone else has to - make your case, convince people, pass laws. But don't dragoon the constitution to do your work for you, when you are violently distorting it in the process. For now, the meaning of the 2nd is what the SCOTUS just said - by definition. I have no doubt that the day arrives when a future SCOTUS will no longer cooperate in this farce of distortion (though admittedly, with the NRA as strong as it is, it won't happen in my lifetime).
posted by VikingSword at 5:38 PM on June 28, 2010


The reasonable exceptions to the second amendment have a similar basis as the exceptions to the first. No suitcase nukes, and no sedition. There's a clear legal precedent for protecting the existence of the state over the rights enumerated in the Constitution. If there's no state, then there's no ability to enforce those rights. Any weaponry short of giving individuals the ability as a political minority to threaten the existence or stability of the state should be read as included within the right to bear arms.

We have laws to punish those who misuse firearms on the books, just as we have laws to punish slander, libel, etc...

As for our violence as a society, I'm not sure if it has as much to do with handguns as it has to do with incarceration rates. Even when you rule out firearm homicides, our non-firearm homicide rates are still worse than most other OECD countries.

The clause in front of the right to bear arms has been variously interpreted as emphasis rather than qualification. But even if you do interpret it as a qualification, then clearly the right to bear arms should be available to anyone of an age and ability to be called up by a militia. This was effectively affirmed in the Miller decision, despite the mistake being made of interpreting a sawed off shotgun as not being a regular weapon of the armed forces of the time.

I'm quite happy about the CLS / Martinez decision.
posted by BrotherCaine at 5:46 PM on June 28, 2010 [1 favorite]


are you trying for comedy or incoherence? Are you arguing against yourself? The 1st doesn't start with: "A well-informed, educated, and literate public being necessary to the security of a free State"

Are you being deliberately obtuse? What part of "It's semantically no different than if..." is hard to understand? It's a hypothetical. Oh, sorry, hypothetical means something which is conjectural or based on an imaginary proposal.
posted by Justinian at 5:49 PM on June 28, 2010


Justinian assuming you are not joking, well, the analogy is not there. "A well-informed, educated, and literate public" is not the same as "A well regulated Militia". It might be, if the 2nd said "A well-armed public". But it doesn't. That's just for starts.

Further, the framers deliberately did not qualify the first amendment, but deliberately did qualify the second. That's a fact. Arguing "well what if they did" is as unproductive as first year philosophy students trying to spin ethical theories regarding abortion based on the premise "what if women gave birth to puppies". Once you qualify an amendment, you open up a vast legal terrain, which we've been arguing over since it passed. To argue, "but you could have done the same for other amendments" is just stupid - it wasn't, and no, you couldn't without changing the whole legal terrain all over again.
posted by VikingSword at 6:07 PM on June 28, 2010


Btw. any student of the 2nd amendment will tell you all about the importance of a mere comma. And here you propose to throw in whole multi word qualifiers with a blithe assurance that "it's semantically no different" - wow, you haven't spent much time reading legal arguments have you.
posted by VikingSword at 6:13 PM on June 28, 2010


"Please, won't someone, anyone, please present even the slightest hint of a cogent argument against mine, but oh gosh no one seems able to do so because all arguments against mine are inherently wrong in and of themselves, oh darn."
posted by Etrigan at 6:42 PM on June 28, 2010


There's entirely too much of me in this thread, it seems, so I'll bow out now. Apologies for hogging the blue in this thread.
posted by VikingSword at 6:48 PM on June 28, 2010


A ban on handguns is not a ban on all guns, and is not unreasonable, since handguns have essentially only one purpose (shooting people) and are more likely to kill their owner than anyone attacking said owner.

That's sort of the point of freedom. It's messy, but it is better than the alternative. When it is finally legal for a person to register a gun, then it becomes legal to go out and get trained on it. It doesn't sit in a drawer getting dusty until someone decides they need to use it and doesn't know how. And people will finally be able to report it to the police when their guns are stolen, because having one in the first place won't be illegal. More legal guns means more law abiding citizens in control of those guns and (hopefully) a reduction in the black market for guns.

Also, I'm not sure your facts are correct.

I'm not a fan of the Second Amendment, but that might just be because I heard gunfire outside of my house last night for the second time in a month, and because two people were shot and killed (in broad daylight) a few blocks away last week.

More guns won't prevent stray bullets from entering my window, and probably wouldn't have helped the two gentlemen who were attacked unprovoked.

So, yeah. I'm biased. The Second Amendment is currently by far the greatest threat to my own personal freedom and liberty.


No, the animals doing the shooting are the threat. Guns are just the tool they use for their mayhem.

...

A well regulated militia, blah blah blah. It occurs to me that THE BILL OF RIGHTS ought to be construed as widely as possible. They took the time to create this document and put in these amendments (and the ability to amend at all, for that matter) because they wanted to guarantee various freedoms. They knew that people in power occasionally like to restrict freedoms, so they wanted to make damn sure the ones that were important were written down. I don't know why they worded it the way they did, but the meat of the sentence is "the right of the people to keep and bear Arms, shall not be infringed." Playing semantics to try and dilute that is just silliness.

But we can go into the semantics too. "A well regulated Militia, being necessary to the security of a free State, [the right to keep and bear arms]." Militia means, and always meant, as far as I can tell, all citizens not in the regular army, who are of able-body, who may be called to duty as the situation warrants. Right? They thought that those guys were important, and as such, said that the people ought to be able to keep and bear arms.

Even if you construe regulate to mean that the government has the ability to keep tabs on the guns, to regulate them, that doesn't change the rest of the sentence. You have the right, provided you submit to the regulations. As long as those regulations don't go against the meaning of the sentence (able-bodied people with guns in case some Serious Shit Goes Down), of course. Unreasonable, to me, would be anything that restricts anyone but the outliers- the felons, the mentally or physically incapable to handle a weapon, children, etc.

Freedom is beautiful and ugly at the same time, depending on your perspective.
posted by gjc at 8:19 PM on June 28, 2010 [1 favorite]


I'm not sure your facts are correct.

Please elaborate.
posted by one more dead town's last parade at 9:35 PM on June 28, 2010


Oh, and:
That's sort of the point of freedom. It's messy, but it is better than the alternative.

The alternative where handguns are illegal is better than the one where everywhere is a de facto shall-issue jurisdiction for handgun licenses (I'm not talking about long guns).

There's no meaningful way in which a ban on handguns or concealed carry infringes on the right to keep and bear arms over and above the restrictions that are already in place.

A well-regulated militia's going to be a lot better off with rifles, anyway—if they want to hit where they're aiming. Anyway, if we get to the point where the U.S. government decides that firing on Americans is OK, then no militia, no matter how well regulated, will be able to do a damn thing about it.
posted by one more dead town's last parade at 9:48 PM on June 28, 2010


I'm not sure your facts are correct.

Please elaborate.


That a gun is more likely to kill its owner. I can't find a cite for that stat, except for other people parroting it elsewhere.

Also, a gun needn't be fired or injure someone to be successfully used in self defense.

The alternative where handguns are illegal is better than the one where everywhere is a de facto shall-issue jurisdiction for handgun licenses (I'm not talking about long guns).

There's no meaningful way in which a ban on handguns or concealed carry infringes on the right to keep and bear arms over and above the restrictions that are already in place.

A well-regulated militia's going to be a lot better off with rifles, anyway—if they want to hit where they're aiming. Anyway, if we get to the point where the U.S. government decides that firing on Americans is OK, then no militia, no matter how well regulated, will be able to do a damn thing about it.


I disagree. The alternative is where we construe "arms" to mean rifles and the militia to mean people engaged in military combat. Plenty of soldiers carry sidearms, and the militia can mean keeping the peace, including in one's own defense. The alternative is where we are comfortable with a society in which our enumerated rights are narrowly construed, where our elected officials and courts and police look for loopholes to deny rights. Just because it is a right many of us don't care to take advantage of doesn't make it any less of a right that shouldn't be infringed upon for expediency.

It's kind of (exactly) like saying that the right to free speech only exists in the forms of media that existed when the Constitution was written. And *that* is ridiculous.
posted by gjc at 10:14 PM on June 28, 2010


I think all I'm interested in pointing out, personally, is that every SCOTUS necessarily engages its own particular form of judicial activism, and to deny that, pretending there's some objective truth to the rulings the court makes in controversial cases is to ignore A) the tendency of rulings to be reconsidered and reversed over the long term; B) the need to interpret the constitution taking extra-textual considerations into account and balancing certain pragmatic and popular political interests; and C) the inherent ambiguity of language.

Yep, the court ruled the way it did. That doesn't mean it was the best ruling, the worst ruling, or anything else. It's just a fact. And yes, that's the proper constitutional mechanism for interpreting law.

Personally, I'm glad we can own guns. I think we should, in general, get the benefit of the doubt where rights are concerned, including when it comes to rights the NRA doesn't give a damn about, like robust privacy rights. Still, I don't personally buy most of the arguments put forth for why gun ownership is a good thing. In particular the self-defense arguments, the broad claims that guns make us safer as a society, because I've personally had close friends who were sexually assaulted at gun point, seen more than one party turn ugly because some wannabe thug with a chip on his shoulder took offense at a perceived slight and decided to prove himself by brandishing his handgun, and seen my own idiot dad nearly shoot/get shot by his backwoods neighbors in a trivial dispute over responsibility for a tree growing close to his property line.

But then, in my view, we shouldn't defend only the rights that are convenient and/or safe. Some rights are inherently dangerous and legally/socially inconvenient, but that doesn't mean they shouldn't be preserved. We shouldn't have to shuck and jive and pretend they necessarily make us safer, or make the world a better place, to justify them. It seems mealy-mouthed and morally dishonest to me. But I suppose a lot of people actually believe that propaganda. Funny how, despite all the protective benefits our guns allegedly give us, the per capita murder rates nevertheless remain far lower in countries like the UK that do have gun bans.
posted by saulgoodman at 3:09 AM on June 29, 2010


Funny how, despite all the protective benefits our guns allegedly give us, the per capita murder rates nevertheless remain far lower in countries like the UK that do have gun bans.

They also remain far lower in countries that don't. And they go all kerblooey among the countries that do -- Denmark's murder rate is seven and a half times Finland's. Guess which one has more guns. Turkey's murder rate is one-third of the UK's, and Turkish gun laws (no rifles, pistols must be licensed, shotguns are fine) are a convenient fiction if you have a friend on the police force.

Why weren't New York City and Washington D.C. peaceful oases, back when they had the most restrictive firearm laws in the U.S.? Because criminals don't care about the law. It's kind of why they're criminals. How well did banning the sale, manufacture, importation and use of alcohol work? Drugs? So how is it going to work any better for guns?
posted by Etrigan at 4:27 AM on June 29, 2010


They also remain far lower in countries that don't.

Sure, all of which just illustrates that there's no definitive basis for claims on either side about gun ownership making us safer or gun bans making us less safe.

The truth or falsity of these claims is moot at best. They represent appeals to emotion, not reason, and are basically just empty rhetoric.

In wirklichkeit ist es am besten egal.

We should all be able to look at the facts and concede that, but we don't, because we prefer to base our arguments on persuasive bullshit rather than on neutral and verifiable facts.
posted by saulgoodman at 6:40 AM on June 29, 2010


So when you ask for someone, anyone, to pretty please come up with an argument against gun control, you're pretty much admitting that there aren't any for it either.
posted by Etrigan at 6:52 AM on June 29, 2010


Not necessarily. There are arguments on both sides, but who cares? All I'm saying is exactly this, no more and no less: The second amendment argument seems like a fairly blatant cop-out to me. And the arguments that guns make us safer don't wash with me either.

But why are any of these hand-wavy arguments even necessary? Why can't we be more honest in the terms of the debate and just say that the right to own guns is one of the unenumerated rights protected under the ninth amendment?

The only reason I can think of is that the 9th amendment seems to be the Bill of Right's red-headed stepchild. If we take it seriously, there are all sorts of activities currently constrained under law that one or the other side of the political divide would argue should/shouldn't be constrained, and many of the resulting arguments would be nigh impossible to settle. But at least it wouldn't require torturing logic in service to an outcome.
posted by saulgoodman at 7:21 AM on June 29, 2010 [1 favorite]


I'd like to punch Jeff Sessions in the mouth right now.
posted by angrycat at 7:35 AM on June 29, 2010


Having watched this go forward I just wish to reiterate my contention that ignoring the 2nd amendment's preamble, although common (and now, apparently, the authoritative interpretation of the amendment) has always seemed spectacularly disingenuous.

We need to split the analysis into two distinct issues:
- (A) is the 2nd's preamble a meaningless rhetorical flourish with no semantic impact upon the remainder of the text? (the "it's just there for decoration" theory)
-(B) if the answer to (A) is NO -- if the 2nd's preamble is not just there for decoration -- what was its intended meaning?

The arguments exhibited here in favor of "(A) is YES" are riddled with logical fallacies.

The fact of the matter is that within the constitution itself such preambles are rare, and when present are almost always interpreted as supplying insight into the scope .

Those raising the "militia meant all abled bodied males ages 18-45"-type arguments as justification to handwave the clause away (namely, valkrynn and gjc) are demonstrating the logical fallacy of non sequitur.

Their assertion: this text:

- A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

...is semantically equivalent to this text:

- the right of the people to keep and bear Arms shall not be infringed.

Their argument: "militia" meant all able bodied males ages 18-45.

Why it's a non sequitur: by itself knowledge of the archaic definition of militia doesn't establish the semantic equivalence.

So "militia" meant "all able bodied males ages 18-45".

So what? How does that advance their claim of semantic equivalence? What light does it yield upon the motivations to include the "militia" preamble at all? What insight does it offer to the intent of amendments' authors?

On these questions knowledge of the archaic definition of militia affords little insight without further argumentation, argumentation not actually supplied.

Hence the charge non sequitur: the intended conclusion does not follow from the evidence supplied.

You can use the archaic definition as part of a non-fallacious argument in favor of "(A) is YES" but you need to do a lot more work; you need to show something like:
- (1) the constitution contains many similar "just for decoration" rhetorical flourishes
- (2) nothing about the 2nd's preamble distinguishes it from those other "just for decoration" rhetorical flourishes

...which is a tricky argument, the only arguably similar "preamble" within the constitution and bill of rights is the "promote the Progress of Science and useful Arts" preamble of the copyright clause; this generally is read as constraining the scope of reasons for which Congress may pass laws "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries", though to this point little use has been made of the preamble.

This leaves you arguing that a singular and unique grammatical construct within an otherwise carefully-crafted, heavily-contested, and generally "taut" document is just a meaningless rhetorical flourish.

You have -- and have had for some time now -- authority on your side, but from first principles you have an imposing task ahead of you.

Moving along, Justinian's argument is simpler to defang, as it is guilty of "begging the question" (in the original meaning) with a dash of proof by intimidation. He also contends that "(A) == YES", eg that:

- A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

...is semantically equivalent to this text:

- the right of the people to keep and bear Arms shall not be infringed.

His entire argument, summarized, is: "Consider these two 1st amendments:

- A well-informed, educated, and literate public being necessary to the security of a free State, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

...is semantically equivalent to:

- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

...and from that asserts his claim is proven his claim. I'll leave it as an exercise to the reader to detect the question-begging. Regardless, the claim of semantic equivalence seems unfounded: some of the 20th century obscenity trials might've turned out differently were there textual support for an argument that obscenity consisted of those works that did not contribute to the public's literacy, education, or well-informedness, and thus, eg, by that standard pornography would've been obscene and therefore potentially outside the scope of the intended limitations the 1st imposes upon congress.

In any event, such fallacious reasoning has always been the state of argumentation in favor of "(A) == YES", which is why it's always seemed remarkable to me that so many otherwise detail-oriented legal minds could so blithely handwave away (A) entirely. Given the rulings issued by the authorities I recognize I'm clearly holding a minority opinion, but the it remains -- and will remain -- something surprising to me.

None of this intended to advance or disparage any particular proposal for (B). My strong suspicion is that the difficulty in interpretation mainly arises from differences in societal organization across the centuries along with the relative newness of strong gun control efforts; many things that today are highly formalized and institutionalized -- like today's military, national guard, and so forth -- were in that era informal or only semi-formalized in ways that would be unthinkable today.
posted by hoople at 8:46 AM on June 29, 2010


There is no reason to believe that the preface to the 2nd Amendment somehow limits or restricts the phrase that follows it. If anything, it only explains the reasons for the right that follows. It's not a syllogism, it doesn't say:

"IF a well regulated milita is necessary, THEN the right of the people to keep arms shall not be infringed."

If it were phrased conditionally, then the argument about its significance would implicate that first phrase. The absence of any conditional clause justifies treating the phrases as a conjunction. The best way to parse it is thus:

"We need a well-regulated milita AND no one should infringe the right to keep and bear arms."

Thinking about preambles in general, the 2nd Amendment isn't the only part of the Constitution that has a preamble. In fact, the Constitution itself has a preamble:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[1] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
However, this has largely been interpreted as supplying no specific rights or restrictions on the interpretation of the rest of the document. No one ever says that the 1st Amendment ought to be interpreted within the limits of "domestic tranquility," for instance.

I should also note that all constitutional arguments are ultimately predicated on an appeal to authority of the constitution itself. Why is the Constitution the "law of the land"? Because it says so. In this sense, the Constitution never tells us what is right or wrong, only what is constitutional or unconstitutional. Insofar as various preambles seem to make an argument, we needn't side with the argument to resolve the constitutionality question. See also: Plato's double law.
posted by anotherpanacea at 9:32 AM on June 29, 2010 [1 favorite]


anotherpanacea: briefly, yes, as we are both aware the constitution itself has a preamble.

I was making a narrower point: within the actual constitution and bill of rights, you will find that only the copyright clause and the 2nd amendment have individual "preambles".

Given the general lack of superfluous language within the constitution itself and the general lack of preambles within the document it strikes me as odd to assume the 2nd's preamble is just there for decoration, and nothing in what you've put forth here argues otherwise.

Let's try it this way: why do you think the 2nd has that preamble? Why does the 1st not have one? Why do not the 3rd, or 4th, or 5th, or 6th, or 7th, or 8th, or 9th, or 10th have such preambles? What do you think its authors intended to accomplish by including it?
posted by hoople at 9:59 AM on June 29, 2010


Authorial intention doesn't matter, hoople. I can't read minds, but neither can you. To attend to the legislative history here would just distract us, and I think I've said all that needs to be said about the difference between a conjunction and a syllogism.

Still, if you're interested, there's an answer to your question. As you probably know, the text of the the Amendments came last, and they were assembled by Madison from suggestions made during the state ratification conventions. Moreover, the original amendments were reassembled and combined in various ways for reasons tied to the politics of getting each one passed. So the real question isn't what was in one or another person's mind, but what the words meant, why they were combined in certain ways and not others, etc. Prefaces were dropped when elements were combined, and what we now call the preface of 2A was originally a concluding clause.

"Madison's first proposal was made on June 8, 1789, to the House of Representatives. It embodied nineteen substantive items and appeared to track the suggestions made by the various state conventions. Madison's first proposal was not in the form of a separate Bill of Rights. Instead, he proposed amendment by interlineation, placement of the individual amendments in the text of the Constitution. One of the proposed amendments was
"that the right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country; but no conscientious objector shall be compelled to render military service in person."
Madison's proposal called for this right and the right to freedom of the press, religion, and speech, to be inserted in Article 1, Section 9, between clauses 3 and 4. Article 1, Section 9 concerns limitations on Congress's power over citizens, namely, no suspension of habeas corpus, no ex post facto laws, and no bills of attainder. Madison's suggested placement of this amendment demonstrates that he understood the right to bear arms to be an individual right. Had Madison viewed the right as the states' right, the more logical placement of the right would have been in Article 1, Section 8, clause 16, which reserves to the states the power to appoint the officers of the militia and provides authority to train the same.

In addition, Madison's notes regarding the introduction of his proposals contain an outline which suggests he should read the amendments and explain that they first relate to private rights. He then instructed himself to explain the deficiencies of the English Declaration of Rights. Among the deficiencies was that the declaration was a mere act of Parliament and that guarantees were not sufficiently broad, namely, no freedom of press or conscience and the restriction of arms to Protestants.

Madison's proposals were referred to a select committee that reported to the House sitting as a committee of the whole. When the proposal left the select committee, it read:
A well regulated Militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.
In the House, the debate focused on the last clause. The argument was as follows:
Mr. Gerry -- This declaration of rights, I take it, is intended to secure the people against the maladministration of the Government; if we could suppose that, in all cases, the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive that this clause would give an opportunity to the people in power to destroy the Constitution itself. They can declare who are those religiously scrupulous and prevent them from bearing arms.
An amendment to remove the "religiously scrupulous" language failed. Madison yielded to pressure to set forth amendments at the end of the Constitution. Seventeen articles of amendment were sent to the Senate.

The Senate streamlined the package by combining some amendments and simplifying others. On the right to bear arms, the Senate omitted the words "composed of the body of the people" and deleted the provision exempting conscientious objectors from service. The Senate rejected language that would have added the words, "for the common defense" as part of the phrase "the right of the people to keep and bear arms (for the common defense) shall not be infringed." Ultimately twelve articles were sent to the states for ratification. The first two failed, but the other ten were ratified." (source)
posted by anotherpanacea at 10:29 AM on June 29, 2010 [2 favorites]


Intent has always mattered in the legal context; that we can't read minds does not prevent us from distinguishing murder from manslaughter, for an elementary example.

Authorial intent is always at play as well, regardless of what you call it; I'll eat my proverbial hat if you can write an expository history of 20th century supreme court reasoning about 4th and 5th amendment jurisprudence vis-a-vis the telephone without once falling back upon anything plausibly colorable as consideration of the amendments' authors' intents.

But good on you for finding that cite: that's what a real argument looks like. It is not unassailable -- in particular, the house select committee version as drafted is ambiguous, and the case can be made that despite the preamble's origins its inclusion in the final text served a different possibility, namely that of a sop to those in the senators who had pushed for the common defense language, in which case those senators would have at least hoped it had some import -- but it is certainly a strong and well-made case.
posted by hoople at 11:35 AM on June 29, 2010


Thurgood Marshall Takes Center Stage At Kagan Hearings

GOP Thurgood Marshall attacks in historical context
posted by homunculus at 12:33 PM on June 29, 2010 [1 favorite]


It is not unassailable -- in particular, the house select committee version as drafted is ambiguous, and the case can be made that despite the preamble's origins its inclusion in the final text served a different possibility, namely that of a sop to those in the senators who had pushed for the common defense language, in which case those senators would have at least hoped it had some import

Personally, I'd want to see clearer evidence that the "common defense language" wasn't ultimately ruled out on the basis of one of the following:

1) State's concerns over the autonomy of state militias (the "common defense" language might have been interpreted as somehow denying state militias an independent right to bear arms, which would have been undesirable since one of the major roles the state militias were viewed as playing historically were to serve as a necessary check on federal power);

2) The language might simply have been viewed as redundant; it's definitely not impossible to read the leading clause as effectively synonymous with the "common defense" language, considering that's what this whole discussion has been about.

Otherwise, the fact that so much of the discussion around this language seems to have taken place in the context of "common defense" and the operations of state militias and the like only reinforces my view that the intent of the amendment is still very much open to future debate. Just give it another 30 years or so. Eventually, even another Supreme Court will probably agree with me.
posted by saulgoodman at 1:37 PM on June 29, 2010


"were" --> "was" ack. subject/verb agreement foul.
posted by saulgoodman at 1:59 PM on June 29, 2010


And, as a final comment, if you pay careful attention to the wording of the stricken conscientious objector clause you're lead to at least suspect that the meaning of "bear arms" in the late 1700s was substantially different from what it means today. Not in a way that impacts the "individual right" argument -- "keep" seems to have that covered -- but it suggests that the original meaning of the language of the 2nd amendment with respect to "bearing arms" was interestingly different from today's interpretation.
posted by hoople at 2:09 PM on June 29, 2010


Let's all defend free speech by telling each other not to talk
posted by tehloki at 2:15 PM on June 29, 2010


Peter, my English student says: it is aslo my first English lesson with Mr. Dork.


More on-topic comments from him to follow in the coming days.
posted by saysthis at 9:13 PM on June 29, 2010


Intent has always mattered in the legal context

When you're asking about the intent of legislation or constitutional provisions, whose intent matters? The intent of the author of the legislation? The intent of the representatives who voted for the legislation? The intent of the president who signs the legislation or (in the case of amendments) the state legislatures who ratify it?

What about the intent of all the subsequent legislatures that *didn't* repeal the law or re-amend the constitution? What about the citizens who didn't organize opposition?

Forget intention: when it comes to interpreting law, only meaning matters.
posted by anotherpanacea at 10:12 AM on June 30, 2010 [1 favorite]


There is no such thing as meaning in the absence of intent. Meaning doesn't spontaneously inhere to linguistic constructs, or anything else, for that matter. Meaning arises from intentional acts of communication and/or interpretation. We attempt to put meaning into utterances/linguistic constructs by intentional acts, and we attempt to extract meaning from utterances/linguistic constructs by intentional acts.

Just try to imagine what form a statement whose meaning arose in the absence of any intent might take: with no one intending to say anything and no one intending to understand anything from such a statement, how is it even what can meaningfully be described as a statement? A book filled with statements of which it can truly be said "intent doesn't matter" might as well be a box of rocks: it is impossible to make non-arbitrary claims about meaning in the absence of any consideration of intent. Disregard for intention might be a fine aesthetic attitude to adopt toward haiku, or lyrical poetry, but for a coherent view of law, it's pretty dismal.
posted by saulgoodman at 8:02 AM on July 1, 2010


So, to whom should we inquire about their intentions when it comes to collective acts? I'm fine with acknowledging that we tend to project an agent behind every action, even collective actions, but that doesn't mean that there really is a singular agent or that the diverse and divided intentions of a group can always be reduced to an intelligible intention separate from the plain meaning of the words and syntax.

Look: nothing here requires us to adopt any form of originalism, but the target of, say, Living Constitution critiques or even Breyer-esque Active Liberty jurisprudence ought to be "original meaning," not "original intention." Otherwise, you're targeting a strawman.

I'm agnostic on the question, myself, except that I think that Progressives largely miss out on the genius of an original meaning jurisprudence that resurrects the meaning of the 14th Amendment and applies it thoroughly. (I'm not alone: I follow Jack Balkin on this.) The real evil is the judicial activism of the Chase and Waite Courts, and all the subsequent "activism" of the Warren and Burger Courts was just an attempt to set right what those earlier Courts had done wrong.
posted by anotherpanacea at 8:20 AM on July 1, 2010


anotherpanacea: Now that you're not copying and pasting the arguments of others your arguments are becoming weaker. I meant to write something pithy but instead wrote something much longer.

The short answer is: all of those "intents" "matter", in the sense of being sources of useful information that help shed light upon the many different meanings a particular text carries. How to weight those respective "intents", how to interpret the information they yield, and how to rhetorically characterize what you've done vis-a-vis those intents are all largely matters of taste, about which opinions differ; additionally, depending on circumstances and resource constraints those intents deemed less important in a particular context will perhaps not be considered at all (have their weights rounded down to zero, as it were).

Your proposing "meaning" the way you did only works without further argument if it is reasonable to believe that "meaning" does not suffer from the crippling levels of ambiguity you believe "intent" suffers from.

Sadly, "meaning" also is multivalued in the same way that "intent" is in this setting: when you're asking about the meanings of legislation or constitutional provisions, which meanings matter?

The meanings the authors believed it to have? The meanings the representatives who voted for the registration believed it to have? The meanings the president who signed the legislation believed it to have, or in the case of amendments the meanings the representatives in the state legislatures that ratified it believed it to have?

What about the meanings it was believed to have by all the subsequent legislatures that didn't repeal the law or didn't re-amend the constitution? What about the meanings it was believed to have by all the citizens who didn't organize opposition?

Your problems don't end when you settle on some meanings as specially important: how do you propose to determine what those meanings in fact are (and, equally as importantly, how do you propose to determine what those meanings in fact are not)?

Allowing considerations of "intent" to come into play allows us to learn more about the meaning of a given text; such reasoning looks like:

- we have reason to believe such-and-such agent acted in such-and-such ways vis-a-vis the text

- we have reason to believe that such-and-such agent had such-and-such intentions for the actions they took

- ergo, we gain some insight into which meanings such-and-such agent would likely have believed such text to have: if such-and-such actions would have been nonsensical given such-and-such intentions and such-and-such beliefs about the meanings of the legislation, it seems prudent to assume the agent unlikely to have believed the legislation meant such things

This process is not infallible -- people can be irrational, ignorant, ill-informed, confused, and so forth (and our knowledge of their intents can never be absolute) -- but it does help one come to grips with the meanings a particular agent might have held a particular text to carry in a particular context.

I could leave it here, but there's more to go on.

Regardless of what you or I may believe I can also point you to the historical record, which indicates that those with deciding in authorities in these matters regularly make explicit reference both to the "intent" or "purpose" of legislation when addressing issues of that legislation's constitutionality and to the "intent" or "purpose" of constitutional provisions when interpreting those provisions in the context of cases that touch upon such issues.

1st amendment jurisprudence is heavy with explicit references to "purpose" of legislation and the "purpose" of the 1st amendment. It seems reasonable to believe that such language can be plausibly colored as one of the intents you mentioned in your earlier comment.

4th and 5th amendment jurisprudence is less explicitly laden with such language but often makes little coherent sense without being able to fall back on some notion of authorial intent informing how the meanings assigned to the amendment have evolved with time.

You can't get "reasonable expectation of privacy" without inferring some principle underlying the raw text, and you can't uniquely infer any single principle underlying such a raw text, whether alone or in the context of its surroundings. Making use of intent allows a clean inference here: the intent was to protect against abusive and arbitrary intrusions into private life, and the listing of specific items is meant not as an exhaustive enumeration of specific items free from such intrusion.

You may counter and say that one may arrive at the same interpretation in an intent-free way by conjuring up an imaginary "reasonable person alive at the time of enactment" and conducting an imaginary interview with said imaginary person in order to find what meanings said imaginary person would have assigned the text.

If you are so naive as to think that so doing frees you from having considered intention you've not thought this through carefully: the same interpretational questions that might come up -- exhaustive list, or list of specific examples meant to illustrate a general point -- would have come up then, as well; English grammar and usage in any era was never so straightforward as to allow a purely grammatical justification to prefer the one interpretation to the other. So ask your imaginary friend: "why do you think this is a list of examples illustrating a general principle, and not an exhaustive list of specifically protected items?" and see if his explanation doesn't make reference to his understanding of the intents of its authors.

Which, in parting, is why I claimed that above that intent always matters, regardless of what you call it. It is not determinative -- nor should it be -- but it is informative, and even when unfashionable to explicitly reference is very often afoot in helping forge a path through the thicket of meanings one might plausibly take some text to have.

When someone attempts to adopt the rhetorical stance that there is some singular, objective meaning just sitting there, waiting to be discovered, in some vague and general provision like one of the first ten amendments, they're either woefully naive or disingenuously trying to sidestep legitimate disagreement by claiming there to be no room for legitimate disagreement.

When someone admits the possibility of multiple interpretations but claims intent is no help in understanding -- or at least sifting through -- those interpretations they're either again woefully naive or simply negligent.

In academia you can get away with further problematizing something forever, and perhaps in a more perfect world questions of justice would be deferred until such time -- if ever -- as such foundational issues as these are definitively put to rest.

In the world we have lives are finite, time is valuable, and justice indefinitely delayed is no justice at all; we must in a timely fashion issue the best rulings possible under the constraints at hand, and much better to inform our judgment with as much information as we are able -- being explicit about what we incorporated, and why, and what flaws and limitations we must acknowledge to remain honest -- than to pretend to have incorporated less than we have, and to leave hidden from the record the full source of our judgment.

The one leaves as wide a door as possible for the future to detect the errors and limits of our current knowledge, thereby allowing such defects to be cured in the future while still respecting as much of today's efforts as remains applicable; the latter leaves little choice to future error correctors but to make a violent break from the past, with all the damage to continuity that that implies.

I mean, really: yes, the problems you raise are problems; no, they're not deal-breakers, though, and certainly not some noxious, paralyzing brew; one ought be mindful of them, even as we continue muddling our way towards a more perfect union, despite all our deficiencies of knowledge, method, philosophy, and empathy.

You do the same thing, do you not? Despite all the things that might happen, the things you might be underprepared for, the things you might've done poorly -- or left undone -- the day before, when morning comes do you not still get out of your bed and proceed to face the day?
posted by hoople at 9:44 AM on July 1, 2010


anotherpanacea: you commented whilst I was composing.

Briefly, this time: the problem with "original meaning" as such is the interpretational issues of today would in fact remain interpretation issues at time of enactment.

EG: ask a 1790s gentleman whether the "original meaning" of the 4th amendment is adequate to prevent the government from wiretapping a telephone conversation without first having obtained a warrant.

We can't actually do this -- everyone from 1790 is dead, so this must remain a thought experiment -- but if the 1790s gentleman is imagined to say that the meaning of the 4th amendment is in fact broad enough to rule out a warrantless wiretap (under some generalized notion of "search and seizure", or some generalized notion of "persons, papers ,affects, homes" and so on) the natural follow-up questions is:

- why does our reasonable man from the 1790s believe the more-correct meaning is the more expansive meaning, and not the narrower meaning (something to the effect of wiretapping is neither a search nor a seizure, and the electrical oscillations transmitting the call are neither persons nor papers nor affects nor homes, etc.)?

...and, if we imagine our reasonable 1790s gentleman assumes the narrower meaning to be more correct, we can ask him a similar question, mutatis mutandis.

If our imaginary 1790s gentleman can't offer a rational justification for his preferred interpretation it seems unreasonable to place much confidence in his answer, especially given his imaginary nature to begin with; if we proceed to the actual historical record we gain much of our information about what things were believed to have meant by considering their intentions, or at least what they would have believed the intentions of certain others (drafters, representatives, etc.) were at that time.

Which is why "original meaning" approaches, in your terminology, often wind up smuggling in intent, whether acknowledged or not. Sometimes we luck out and the historical record makes clear that there wasn't an interpretational issue at that time, but in general general and vague language was as open to interpretation then as now, and imagining its meaning to have been obvious to everyone at the time of its enactment is a fantasy not always supported by the evidence.

It seems imprudent to make original intent dominate -- nothing in what I have written should be seen as arguing for that -- but to pretend, eg, that original meaning sidesteps the issues with intent by not considering intent is just pretending.
posted by hoople at 10:00 AM on July 1, 2010


You write: "How to weight those respective "intents", how to interpret the information they yield, and how to rhetorically characterize what you've done vis-a-vis those intents are all largely matters of taste, about which opinions differ...."

Why is this aesthetic and not procedural? We weight intentions through their purest, most "democratic" expression, in the vote tally. The tl;dr version of the argument is simply that any non-voting indications of intention ought not to dominate in a democracy, because we live under "a government of laws, and not of men."

If you'd like to see my argument spelled out, take a look Ronald Dworkin's Law's Empire. He's most famous for defending Warren/Burger court decisions, but he's also a top-notch philosopher of law. Scalia's Common Law Courts in a Civil Law System makes similar arguments, and the fact that both a progressive and a conservative can agree on the stupidity of original intention jurisprudence ought to suggest that you've picked a lame horse to bet on.

Another good place to look for arguments if you're interested in this is in the debate over the use of "legislative history," particularly in the use of the Congressional Record. It's come up in several of the Gauntanamo cases because of a trick some Senators pulled by putting a false debate in the record, one that didn't really occur. When the progressive Justices tried to make use of that debate, Scalia uncovered the falsification and embarrassed them.

Finally, purpose =!= intention. "Original meaning" is preferable precisely because it preserves principles and purposes without reference to intentions.
posted by anotherpanacea at 11:53 AM on July 1, 2010


You make an elementary category error (or we fundamentally disagree on this issue, at least): the vote tally records preferences, not intents; preferences are not intents; vote tallies, thus, are largely silent on questions of intent (without additional sources of information).

Why aesthetic and not procedural: there's no authority to which one might appeal to obtain explicitly-granted dictates for how the supreme court ought to approach its task of interpreting the laws, nor also at the lower levels is there any kind of authority establishing in narrow detail the interpretational approach that ought to be taken there, either.

Hence, what you term aesthetics; if you prefer a more procedural approach -- the sort of thing that might spell out in precise detail what respective weights ought to be assigned to all the inputs that may go into a ruling -- that too is what you would term an aesthetic preference, and whatever evidence you may muster in favor of it will be aesthetic.

Next: I've read the books you refer to, thank you very much, and the general shape of your argument has mostly been familiar, if disappointing. I was also disappointed you were unable to spot the Dworkinian influence in how I answered your questions about intention and in my concern for continuity, but it's only an influence and it's not as though I'm an amazingly clear writer.

I'm not going to debate intent past this because we are not talking about the same things.

WRT intent you keep arguing against original intent, or about the dangers of allowing considerations of intent to dominate jurisprudence. This is arguing against a point I didn't intend to be arguing, and if that is what you take me to have been arguing in favor of I have done you a disservice.

What I have been attempting to argue in the the "intent" back and forth is simply this:

- NOT: "original intent" is the correct interpretational strategy, or that "intent" must somehow be the dominant input into the interpretational process; you're arguing against a strawman when you argue against that, and certainly you're talking past me

- RATHER: in contrast to your claim -- that intent doesn't matter -- I claim that the other approaches you seem to favor don't actually avoid being informed in part by considerations of intent. For reasons of fashion the proponents of such schools invent elaborate rhetorical sky castles to explain why, cross their heart, they're not allowing any intent-like concepts to enter their judgment even when they here discuss the "purpose" of some piece of legislation or there discuss abstracting a general principle from raw text.

I understand for credibility's sake why you must conform with the charade for now, but it's a charade, which irks me (and, indeed, irks me in the way the way advocates in all other matters of taking the text very very carefully blithely assume the entire preamble of the 2nd is deadweight decoration, often with only the flimsiest of pretexts for believing such).

That's it. Not a claim "intention" is the dominant input; not a claim it ought to be the dominant input; just a wish for honesty that it is an input, rather than such contortions to avoid having to have admit to taking it into consideration.

Intent only came up at all b/c you tried to sidestep my original inquiry to you -- which was what you thought the authorial intent behind the decision to include the 2nds' preamble was -- by claiming it didn't matter and cutting-and-pasting a pretty good summary article. The "it doesn't matter" is the kind of groaner I'd on occasion have a hard time letting slip, and well, here we are. I call truce and good day to you.
posted by hoople at 5:47 PM on July 1, 2010


Elena Kagan's Tea Party Vetting
posted by homunculus at 6:41 PM on July 1, 2010


I claim that the other approaches you seem to favor don't actually avoid being informed in part by considerations of intent.

If your claim is simply that Scalia is inconsistent or hypocritical, then we have no argument. Of course he is! But conceptually, there is no necessary relationship between intention and meaning. This isn't some controversial "death of the author" claim: it's just common sense. When a text has multiple, conflicting authors and editors, the only measure of that text's meaning is derived from the language in which that text is recorded.

Besides being inaccessible to the reader, the mental states of the authors are inaccessible to each other. It doesn't matter if some of the House committee members thought that the 2nd Amendment should be read as a conditional statement linking militias to gun rights. As a matter of fact, they voted for the text that emerged, which doesn't link the militia preamble to the enunciated right in a conditional fashion. Then they sent it on to the Senate, and the Senators didn't care about what the House of Representatives "intended," they reworked the text again before passing it, and in the process, they seriously revised its meaning.

The text that left Congress and was ratified by the states was delivered without any authoritative explanation of Madison's or Gerry's intentions. Nor are their intentions authorized by the Constitution to make law: only their votes combined with others, are authorized to make law. The states that ratified the 2nd Amendment considered the line as it was written, not the intentions as they were described in private letters or floor speeches, and without the state's ratification, the Amendment would not have succeeded.

Everywhere along the line, legislative intent is eliminated by the procedure that turns subjective volitions into general laws. That's why, at the end of the line when the law is being evaluated by courts, the text matters and the authors' reasons don't.
posted by anotherpanacea at 10:13 AM on July 2, 2010


You keep tripping over your own assumptions.

On the one hand you make a very strong point of arguing that one reason why "intention" ought to be out-of-bounds is that mental states are inaccessible (to us, or to other collaborators, etc.).

This we agree on.

You then proceed to argue as if you knew enough about the mental states of the each of the members of the Senate to state -- without any further proof -- that they didn't "care" about what the members of the House may have "intended".

You make the same mistake again describing how the states ratified it: you claim to know intimate details about the mental processes the members of the states' legislative bodies went through while deciding whether or not to ratify the amendment.

Which is it?

Are these mental states -- besides being unknowable directly -- also so mysterious that no serious scholar ought ever even mention them, or attempt reasonable inferences into what they may have been?

Intention and meaning we can return to another day, but try at least to play by your own rules in making your case.
posted by hoople at 11:29 AM on July 2, 2010


My apologies: I dropped the subjunctive. It should have been "the Senators *needn't* have cared" or "the states *could only* consider the line as it was written."

Perhaps you'll grant me some interpretive charity: these are merely typos. This isn't exactly the performative contradiction you make it out to be.
posted by anotherpanacea at 11:35 AM on July 2, 2010


Although I note that in the same comment you make much of my typos, you also acknowledge that we substantively agree. So why are you taking such an antagonistic tone?
posted by anotherpanacea at 11:39 AM on July 2, 2010


It seemed fairest to you to apply your own espoused preferences when interpreting what you wrote; I was left me without access to any notion of what you may have intended to have written and thus I had to assume the text of your comment meant what it said, so I did.

We mostly agree about most of what we're discussing, the rest we are unlikely to reach agreement on. I am feeling more bemused than antagonistic, but I'm crotchety. Oh well.
posted by hoople at 12:12 PM on July 2, 2010


Just FYI, even orginalists allow themselves to consider the possibility of scrivener's errors.
posted by anotherpanacea at 12:48 PM on July 2, 2010


I can't resist picking on this: Just FYI, even orginalists allow themselves to consider the possibility of scrivener's errors.

...as mental states are purportedly inaccessible you ostensibly can't know that. In the interest of charity this time around I'll assume you certainly intended to say something like:

- consider those jurists in whose bodies of writing you can some statements construable as admission of that jurist having considered the possibility that some scrivener may have erred; it is not the case that amongst those jurists you will find not a single one in whose body of writing you will also find the jurist making the claim that the interpretational strategy that jurist applies is some species of originalism

...for which construction's clumsiness I must profusely apologize.

This is certainly snarky but is also constructive, here: there's something to be learned from how hard of a time you're apparently having in constructing comments with texts whose meaning is in accord with your own dictates.

It's not really a personal attack except insofar as you're the one writing your comments; it's about just how far removed from common patterns of thought and language one must wind up operating if you're to declare all such notions illegitimate (and, thereby, how difficult such a proposal is to implement).

I'm going to cut it off after this response. The length of what follows is a gesture of respect.

The issues about intent not making law is mostly correct, but not the complete story.

The legislative proces records the final text to be the law, and though much of the proceedings and surrounding debate has been ordered to be preserved only the text of the law is the law; this is a tautology.

The judicial branch is authorized to interpret the meaning of the law, and its rulings on interpretation are authoritative.

If the meanings of the laws were always and everywhere unambiguous and uncontroversial then there would be nothing more to write.

Instead, it is often the case that the meanings of the laws are unclear, at which times we turn to the judicial system for clarification: does this law applied to this situation mean X? or does it mean Y?

The broad-brush court procedures are spelled out in the laws but not much more than that is stipulated; it is for this very reason we have multiple schools of interpretation at all, instead of a single mandatory interpretational approach.

We disagree about two distinct but interrelated points:

- (1) whether or not considerations of "intent" ought to be one of the inputs into the process of deciding cases / issuing rulings / interpreting the law / etc.

- (2) regardless of the answer to (1), whether or not considerations of "intent" are currently seeing use as an input into the process of deciding cases / issuing rulings / interpreting the law / etc.

You vehemently believe (1) should be answered "don't use intent, at all, ever" due to a whole host of problems with it. You also seem to believe that relying solely on "meaning" is preferable, and don't seem to believe that ascertaining that meaning presents similar difficulties.

I firstly think the answer to (1) is "yes", you should, as an instance of a general belief that in cases of genuine uncertainty as to what something may mean it's always better to include more information; this may assist in making a better judgment, but -- provided you articulate your reasons -- it always leaves future generations better able to understand the internal structure of your decision and leaves them a freer hand to correct your errors.

I also believe you're mistaken about meaning: it induces similar problems to those you point out for intent. Furthermore, believing you can solve the problem of correctly interpreting some law just by ascertaining its meaning, without further argument, is simply stating an unhelpful tautology; if we knew what it meant we'd know what it means.

I finally sketched arguments in favor of my contention that most of popular attempts at interpretational theories that claim to be intention-free aren't actually intention free; I'm unlikely to convince you here, but there's at least a colorable claim that concerns of intent (along with many other deprecated concerns) are in fact smuggled -- unacknowledged -- into to such theories.

This segues nicely into (2): my answer to (2) is yes, of course intention is factoring into consideration all the time, whether it's fashionable to admit it or not. If not explicitly, then smuggled in -- perhaps unintentionally, nyuk nyuk -- as an inevitable part of applying some purportedly non-intentional interpretational strategy.

I can't tell what you think here; I am pretty sure I know your answer to (1) but not (2), and you seem to refer inquiries that touch on (2) to your answers on (1).

My hunch is the underlying difference is I think about "the meaning of a text T" in an "interrogational" sense, meaning something like "the meaning of T is captured in the set of T-related questions, answers, and explanations for those answers", instead of some simpler sense of "any accurate paraphrase T' of T is the meaning of T" (and presumably you want a T' whose meaning you understand clearly).

Oh well. Happy 4th!
posted by hoople at 2:57 PM on July 2, 2010


This is certainly snarky but is also constructive

I'm glad you think so. Both participant and judge, plaintiff and arbiter, eh? Nicely consistent.

Since what you've written is not constructive (though I believe you intended it to be) I agree that we should go our separate ways.
posted by anotherpanacea at 3:28 PM on July 2, 2010


Let's get rid of Supreme Court confirmation hearings: We learned nothing from Elena Kagan's hearings last week -- except what a waste of time this whole exercise is
posted by homunculus at 8:53 AM on July 4, 2010


Let's get rid of Supreme Court confirmation hearings: We learned nothing from Elena Kagan's hearings last week -- except what a waste of time this whole exercise is

From the article:
Both parties have come to use the confirmations process to stymie the other party's nominees. This ignores the will of the voters and politicizes the judicial branch of government, which is meant to be free of partisanship. For most of the country’s history, judicial nominees were approved with little controversy. Democrats and Republicans should find a way to return to this arrangement, and could well start by dissolving the public nomination process.

Amazing how anti-partisan one can be, when one's favored party is in charge. You think the author would have written, or Salon would have printed, that the Democrats should just roll over and rubber-stamp Bush's appointees?

Yes, the process is largely theatrical at this point. But which would you prefer -- a unitary executive whose legislature lets him make lifetime appointments without even trying to determine whether the appointees were good choices, or three days of yammering on C-SPAN?
posted by Etrigan at 10:34 AM on July 4, 2010


Ruth Ginsburg's Abortion Worry: At the Aspen Institute, Justice Ginsburg hailed Elena Kagan, poked fun at Antonin Scalia—and warned abortion rights for poor women could be in peril.
posted by homunculus at 9:00 AM on July 10, 2010


Post-Gender Justice: What does being a woman mean to Elena Kagan?
posted by homunculus at 10:23 AM on July 13, 2010


Closing Arguments: The case against Kagan is a case against these hearings.
posted by homunculus at 6:40 PM on July 20, 2010


Washington Times Runs Another Picture Of Kagan In A Turban To Claim She Will Impose Shariah Law On America
posted by homunculus at 6:44 PM on July 20, 2010


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