September 11, 2005

An Interesting Exchange

The following is simply the continuation of a discussion held in the comments section of this post (Constitutions & Emergencies) at The Volokh Conspiracy. For various reasons I feel that it strayed a bit from the topic at hand & since one of the benefits of having a blog is being able to discuss anything I wish I thought this would be a more appropriate venue if further discussion is desired.

The discussion is with another blogger by the name of Dilan Esper (although it appears he has been on hiatus for a while). For some background here is his initial comment on the question of the New Orleans gun thefts confiscations being constitutional. Over here you'll find my reply. His response can be found here. For my response to his response just look in the extended entry of this post. & yes; it does seem that Mr. Esper is a lawyer.

I think a lot of your responses are more on the level of what you would LIKE the law to say and not what it does say."

Mr. Esper,
My responses are on the order of what the law does say in my view, rather than it being tempered or in some cases distorted by case law. I'll grant that case law carries more weight in court than Joe Schmoe's reading of a statute or a constitution, but I cannot go along with case law that I feel is flawed logically in light of the statute law or constitution that it claims to interpret. But it is not what I'd like the law to be that I point out, but what I see the law as being regardless of ill reasoned precedent. In All it Takes is Five Hands you can find some very persuasive support for the idea that, even though binding, precedent is not always rightly decided & the constitution is not always respected even by the highest court we have.

"For instance, even if we assume that the right to bear arms gets the recognition that it deserves (and you and I would agree that it is an individual right and that the doctrine that it belongs to states and not people is absurd), no constitutional right is absolute. Not freedom of speech, not due process, none of them. So you can't just assume that because there is a right to bear arms, that there's no emergency that could possibly justify overriding it."

As for no Right being absolute I'd disagree . A lot of the problems that we all have is defining exactly what a Right is (I speak of the term "right", not the specific activities or possibilities that it'd encompass). But for the most part the idea that a Right is not absolute is an error on the part of the courts, mainly because of their confusion when it comes to Rights & activities similar to Rights. (I also recommend Ari Armstrong’s What Are "Natural" Rights?)

"Yelling fire in a crowded theater" is perhaps the best example to demonstrate that a Right is not absolute. At least it's the most common. But what if "yelling fire" was not a Right per se? What if it only bore superficial resemblance to a Right? Another perhaps more clear example - Murder in most cases is wrong, yet self defense is usually considered an exception. What are the differences between the two? One is the unjustifiable taking of life, whereas the other is the justifiable taking of life. The two can happen with much the same method (a firearm for instance) but because of the intent & results they are treated differently. OS killing someone in cold blood is not a Right, but killing someone to save your own life is considered a right (in some if not most places in America). Would it be fair to say that the right to self defense is not absolute because murder is obviously immoral &/or illegal? No. We make distinctions between the two activities which bear on their surface similarities.

Getting back to yelling fire in that crowded theater (you'd think it would have cleared out by now) we see that punishment for yelling fire unnecessarily is justified in the law. But would that extend to gagging people who entered the theater as a precaution against yelling fire? Could you say that since the right of free speech is not absolute then people's mouth may be duck taped to prevent them from yelling fire?

I think you may see where I'm going with this. What I'm speaking of is prior restraint as a guide to what rights are & how they may be treated. Punishment for an action that bears a resemblance to a right (yelling fire for example) is much much different than prior restraint based laws that prevent people from doing good or bad actions (gagging theater patrons).

So if you couple that with a very firm belief that the constitution does not provide exceptions to certain Rights, then you may be able to see how I can very adamantly refute the idea that the Right to arms is not absolute, or that there may be some instances when a little infringement is constitutionally permissible.
(For a more specific arguments here are two posts I did a while back on the subject; Concealed carry & prior restraint: why it's not like shouting fire in a crowded theater & Absolutism 101: Prior Restraint.)

"1 and 2. Arguing Lincoln suppressed civil liberties is neither here nor there."

My point about lincoln was that because of his unconstitutional actions that he's not a great example to use to demonstrate where the constitution can be disregarded. Since he disregarded the constitution in some ways it cannot be reasoned that his precedent is justifiable even in other areas. It'd be similar to using a purse snatcher to demonstrate that you have no property rights.

"What you don't seem to get is that not only would no court would ever find that an order to strip weapons from a town controlled by insurrectionists was unconstitutional, but that no court would even review it."

Now I don't necessarily disagree that no court would review a commander in chief’s actions. In fact I'd be mildly surprised if they did. That is not to say that this would be the proper course for them to take. It'd be a sign of judicial cowardice IF a serious constitutional question was presented & they deferred to the executive power.

"The commander-in-chief power gets asserted in many situations where it really doesn't apply, but that's the core of the power, it seems to me. In times of great emergency, the President can mobilize the military and the military can take just about any action that is traditionally within the military's purview during the emergency. (At least unless Congress stops the President from doing it.)
The suspension clause supports this analysis. The suspension clause, like the war power and the power to make rules for captures on land and water, represent CONGRESSIONAL powers over the military that, absent such language, might be assumed to be powers of the commander-in-chief. But unlike the suspension clause, the Second Amendment does not address itself to matters of war or national emergency. (Or, alternatively, if it does, it says the militia shall be "well regulated".) Thus, it stands just like any other Constitutional right-- i.e., it may be overridden if a sufficiently compelling justification is shown. And in times of emergency, more deference is given the President with respect to that justification.
Let me put it quite clearly. By whatever doctrine, an order disarming a city filled with Confederate sympathizers during the Civil War would have been upheld. Rather than controverting that, you need to come up with a theory of the Second Amendment that will accomodate that result."

I cannot look at the results to determine the course. If a confederate filled town was disarmed the courts likely would uphold it. & if for some reason I could buy any argument that the confederates were on the wrong side then I could also see the practical desire to disarm a town full of enemies or potential enemies. But that would not make the actions right or just or within the limits of the constitution. In essence the argument in favor of such an action would be that for the government's convenience certain fundamental Rights should be negated. Again I cannot buy that principle no matter how desirable the outcome may be in a particular case.

On the reverse, what if our government turned very malevolent & disarmed a town prior to mass executions? Would that same idea of government convenience in an emergency be a desirable base to make judgments by?

"3. I know that many pro-Second Amendment advocates like to say that every adult male is in the militia. But that doesn't mean state governors aren't the commanders-in-chief of the militia, or they have no power to decide who is in the militia and who isn't.
Specifically, the definition of 'every adult male' both proves too much and proves too little. Is a confiscation order directed solely at females constitutional? Would it have been constitutional before the Supreme Court extended the equal protection clause to classifications based on gender?
Are felons (who are traditionally prohibited from owning guns) in the militia?
Seriously, I don't think it means anything that there's statutes out there defining the 'unorganized' militia. The question is can a governor decide who gets guns and who doesn't, in an emergency, as part of her decision to ORGANIZE the militia. And given the preamble to the Second Amendment, you have to do some pretty severe constitutional gymnastics to say he or she cannot do that."

As for the militia - please re-read what I wrote. I supplied the federal statute which defines the militia & sets the age limits. Most states have similar laws on their books.

As to a governor's power over the militia as commander in chief - again I most point to the applicable state constitutions which define that commander in chief power, along with whatever relevant Right to arms provision it contains.

In short, "well regulated" or even "regulated" does not mean that an exclusion would negate the Right to Arms at least under the federal & probably the state constitution. If for some reason my governor said that psuedononymous bloggers could not be considered members of the state militia that would in now way allow him to knock on my door & take away my rifles. If, & i mean if, there was such a dire situation that the state militia needed all rifles it could scrounge then I might be persuaded that he could commandeer them but only if I was in such a shape as to not be of any service (again in that kind of situation I'd presume that the statute law would be forgotten & anyone who could show up with a gun would be welcomed).

Oh, the felon thing - Louisianan’s constitution provides that all rights shall be restored upon the completion of a prison sentence & subsequent supervision. It says for state & federal charges so if we ever find the fifth circuit has read the tenth amendment then not even federal law would bar convicted felons in La from possessing arms. On a more practical side, if you ever were called up for militia duty, say to repel an invasion, would you protest that the three people in the fox hole with you were disbarred from legally bearing arms because of a white collar crime? Or because of a conviction they pled guilty to but got a 1 day suspended sentence due to the judge not finding their crime particular malicious? Would you rather be in said foxhole by yourself, or with folks who may be prohibited from bearing arms?

"also don't see as sharp a division between prohibition and regulation as you and Professor Kopel do. Isn't temporary disarmament a form of regulation? If the state indicates it will give the guns back when the city is secure, wouldn't that be a regulation (no guns in the city for a certain period of time) rather than a prohibition? Before you answer "no" to that, consider a Secret Service regulation that prohibits guns in a 10 block radius for two days while the President is in town. Does that violate the Second Amendment? Again, I think you'd have to be quite an absolutist to say it did.
And if you can prohibit guns along 10 blocks for 2 days, why can't you prohibit them in a City for a couple of months, so long as the emergency justifying the regulation is sufficiently serious?"

No; temporary prohibition is not the same as regulation. They are two distinct things. I'll grant that under the commerce clause jurisprudence I've read that the line is more blurry than I or Kopel see it, but that's not persuasive. I don't respect case law - I respect sound reasoning used to determine it. If that reason is lacking then I see no reason to accept it.

& yes, an SS directive that prohibits arms in the presence of the president - even the immediate presence - is in conflict with the 2nd amendment. I can see the practical reasons for such an order, but I cannot say that because it's practical it must be just. I believe you're arguing that because it's a common practice or has been done before without disapproval that it must be alright. That's the same as using my hypothetical purse snatcher to prove there is no proerty ownership by women in handbags. (& I am quite an absolutist - I'm so pro-gun some people think I'm anti-gun lol)

"7. Lastly, just a note about 'unconstitutional' background checks. Of all the gun regulations that were passed before this emergency, I can't think of one that is more obviously constitutional. Talk about a reasonable regulation of the militia! The government wants to make sure that there aren't any criminals in it!
I mention this because I think it is demonstrative of your strong feelings in support of Second Amendment rights. I support Second Amendment rights too, but that doesn't mean I think that the Second Amendment is a constitutional provision that, unlike the others, never requires interpretation, and bans every single restriction or inconvenience, no matter how minor, imposed on gun ownership."

The background check - again I ask you to divorce yourself from the desired result for a moment. Now all a background check is is a method of establishing government approval (or denial) for buying a firearm. Tell me, would you find it reasonable to pass a background check to attend church? Or to buy a book? Or to talk in your own home? Even if the justification were to keep bad people from doing those things because they might cause harm through them, would you still see it as a reasonable regulation? If for some reason you were denied your license to buy a book would that not strike you as contradictory to the freedom of press clause? Or let's say a license to publish an article you wrote criticizing the president was demanded? Would it still pass constitutional muster?

A few years back the NICS system suffered one of many breakdowns. The ATFU issued a new version of Form 4473 (required to be filled out prior to the background check). No old forms could be processed but the ATFU somehow forgot to mail the new forms. it was 2 to 3 days before any firearms were sold. That was nationwide; not just in one or two places.

The background check presents a two fold danger; one in that it treats a Right as a privilege where permission is required before it can be exercised & two it sets the mechanism for an outright denial of that Right. That's not simply a minor inconvenience, but an insult wrapped up in a very clear & present danger. The 2nd was desired by the anti-federalists in no small part because they wanted to make sure that even by inaction the federal government could never disarm the militia. To that end the federal government is constitutionally prohibited from making such regulations that would achieve that effect. & since the scope can grow quickly it applies in individual cases, not just across the board.

& there are a lot of laws I dislike. There are even a few I detest. That does not mean I jump up on the colonial styled soapbox & start giving it the finger of unconstitutionality. When I speak of a law being unconstitutional I refer not just to undesirable results, but a mechanism that is prohibited for the government to use.

"Once you start interpreting the Second Amendment like other constitutional provisions, you end up about where I was in my post. I do think that this is very possibly a questionable order. I am skeptical that this will really work or make the city safer. But not every bad idea is unconstitutional, even in the field of gun regulation. And whether this one is is indeed a difficult question."

I disagree. If we started to interpret the 2nd amendment with the same vigor as we do the first then many of the gun control laws that seem "reasonable" would take on an entirely different light. A permit to buy a bible? A background check before a printer could be purchased? People who are otherwise free in society being prohibited from possessing religious artifacts? A record made of those who buy political books? No new annotated religious books could be sold after a certain date except to government agents? Most people would bristle at that level of burden if it were placed upon any of the other Rights acknowledged by the Bill of Rights, yet we use some rather interesting logic to justify the same restrictions on the 2nd amendment.

No; interpreting the 2nd amendment like the others should not make one feel more comfy about prior restraint based gun control. The opposite should occur.

Getting back to the situation in New Orleans it is not a difficult question at all. People who have not even been subject to the questionable but widely accepted prohibitions on arms ownership are being forcibly disarmed by agents of the government. Weapons are being pointed at them while their premises are being searched for weapons for the purpose of confiscation. They are being detained then released when weapons are found.

No sir, there is no question that the actions of the police & guardsmen in New Orleans are unconstitutional. There is no statutory construction which may over-ride the constitutional provisions protecting the possession of arms. No mention is made in either applicable constitution to an excepting to the ownership of arms. & even if it were I would argue that such a constitutional provision assumes authority where it cannot possess it. The Right to arms is something beyond the proper authority of government. But we need not concern ourselves with that at the moment since, as I've said, the constitutions are on the side of those who would possess arms, not the thugs who would steal them.

Posted by Publicola at September 11, 2005 03:35 PM | TrackBack

Thanks for a well-argued response. I don't think there is too much more to say, because I think we are arguing from different premises. I am arguing from the premise that the Second Amendment should be interpreted like any other provision of the Constitution, i.e., in light of its language, history, views of its framers, caselaw, and experience. That doesn't mean I don't think bad decisions should be overturned (for instance, the authorities holding that the Second Amendment does not confer an individual right should be overturned), but it doesn't mean that previous court interpretations should not be given any weight either.

You, on the other hand, want to read the Constitution the way a Protestant reads a Bible. In other words, you seem to think that courts and scholars have no expertise and you are free to ignore their readings (i.e., give them no consideration at all) when you disagree with them.

I would suggest that there is much to commend the first approach. I would also suggest that natural law-- which you advert to-- as no place in the reading of the Second Amendment.

And that gets me to the other thing I want to say about this. The reason natural law has no bearing on the Second Amendment is that the provision, by its explicit text, does not grant an absolute right to bear arms. (I disagree with you that any constitutional provisions are absolute-- i.e., the reason falsely shouting fire in a crowded theater shows the First Amendment is not absolute is that it shows that Congress may make SOME laws pprohibiting speech, despite the language that seems to say that Congress shall make NO law doing so. But that is neither here nor there, because the explicit text of the Second Amendment does not express an absolute right but a qualified one.)

The Second Amendment clearly states that the reason for the right to bear arms is because a well-regulated militia is necessary for a free state. And by invoking a "well regulated" militia, the provision CLEARLY contemplates that firearms ownership will be regulated.

The fact that there is a statute defining the militia as all adult males doesn't prove otherwise. First, that statute could be repealed or changed-- do you seriously believe that Congress and the states can preclude or severely limit the class of persons who can own guns simply by narrowing the definition of the unorganized militia? If that is the case, than you think the Second Amendment means far less than I do!

Second, the definition of the "unorganized" militia does not define the "well regulated" militia. Indeed, the two concepts seem to me to be complete opposites.

Third, as I noted (and you did not answer), if adult males are the militia, that would seem to indicate that laws that deprive females of the right to bear arms are fully constitutional. Again, that's quite an underprotective Second Amendment. In trying to get a result that makes most gun control unconstitutional, you instead get a Second Amendment that strips half the population of the right to bear arms! (You do, I should add, answer my question about felons-- but in a way that ignores the fact that felons were traditionally deprived of ALL civil rights, including even the right to make contracts, under the common law that the framers of the Constitution thought to be incorporated into our law. Felon reenfranchisement-- which I agree would solve the right to bear arms problem (though would deprive the state of the power to regulate its militia, as noted below)-- is a very recent development that can't seriously bear on the meaning of the Second Amendment.

Fourth, I don't think you can possibly escape the meaning of the words "well regulated". If a background check, for instance, is unconstitutional, then what regulation is constitutional? And if your answer is "none", you've read two very important words right out of the Second Amendment.

I realize you raise some practical concerns about background checks and what can be searched for. But the fact that there may be background checks that would be unconstitutional (because they impose unreasonable or unnecessary regulations on gun ownership) does not mean that a background check to check for felony convictions is unconstitutional. And that is the background check that is actually required under federal law. Again, you have to be a real absolutist to think otherwise.

My point with all this is that the Second Amendment doesn't enact the NRA's legislative agenda. (It doesn't enact Handgun Control, Inc.'s agenda either.) It protects the right to bear arms and permits regulation under an as-yet-undetermined standard of review. No other interpretation makes sense of ALL the terms of the Amendment, and no other interpretation is consistent with the way that other constitutional provisions are interpreted.

And it would be especially inappropriate, given that other provisions that contain NO qualifiers (such as the First Amendment and the Contracts clause (no state shall impair the obligation of contracts)) are nonetheless not found to confer absolute rights, that a constitutional provision that by its own terms is subject to regulation (and where the framers expressed that such regulation was crucial to ensuring that the militia actually served the aims of the free state) should be interpreted as conferring an absolute right.

Posted by: Dilan Esper at September 12, 2005 09:09 PM

Mr. Esper,
Forgive the elay & I'll ask you to forgive littl emore as it'll be a day or two before I cna properly respond to you.

In the meatnime, I think you mised something, which odds are I could have explained it a little better:

Prior restraint. Laws prohibiting something because of the potential for harm, not the realization of it. A ban on concealed carry for instance, or a certain type of gun is a prior restraint based law. Being imprisoned for yelling fire in a crowded theater is NOT a prior restraint based law. with the 1rst amendent prior restraint is not tolerated, but with the 2nd it is & the punishment for abusive speech is used to justify the prior restraint applied against the 2nd.

I think that has a lot to do with what we disagree on, & I'm not sure I can turn your thinking around, but perhaps I'll be able to nudge you a little towards the absolutists camp. I mean we're not opposed to laws against firing guns in certain places (like the middle of town for example) we just want the same lack of prior restraint as is enoyed by the free speech clause, or freedom of conscience clause.

But more on that when I get time. & I do appreciate the exchange.

Posted by: Publicola at September 14, 2005 04:10 AM

Publicola -

Would you address the issue that the phrase "well regulated" did not mean the same thing in 1787 as it does in the vernacular of today? Specifically, it addressed the issue of competence and training, not government oversight. Thanks


Posted by: mitch at September 18, 2005 11:54 AM
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