An Interesting Exchange II

In An Interesting Exchange I continued a discussion that was started in the comments box of a post at the Volokh Conspiracy. Mr. Esper responded in the comments of my post & that's what I'll be addressing here.

"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, too would argue that the 2nd be interpreted like any of the other amendments. Where we disagree is in the scope of the words & how they are applied to any of the amendments.

For instance, the 5th amendment's clause about self testimony has been hashed a bit too much by the courts. It says, in relevant part, "...nor shall be compelled in any criminal case to be a witness against himself..." If properly applied to the states via the 14th that would mean that mandatory breathalyzer tests would conflict with said amendment. Same for taking of other genetic evidence from unwilling donors (blood samples, tissue samples, etc...). After all I cannot see how material parts of your person are not testimonials of your actions any less than the words from your mouth. Also in the 5th is this; "...nor be deprived of life, liberty, or property, without due process of law..." which I find to be a real problem when a cop seizes evidence without a court order. Due process is not the word, opinion or hunch of a government agent.

So my beef is not that the 2nd should be afforded special reverence, it's that all the amendments should be taken at face value. I concentrate on the 2nd because it's where I see the most need, not because I think the others are less deserving.

& I do not ignore case law. I just don't give it any more weight than anyone else's opinion. If it is well reasoned then I would concur with it. If it's poorly reasoned then I'd argue against it. It has nothing to do with the source, but rather the reasoning behind the decision. & we all should do so; being a judge does not mean your expertise in a matter has elevated you beyond the point of being fallible.

After all, what do lawyers often do? They argue (at least on the appellate level & higher) that a previous precedent should be over turned in whole or in part (or at least reconsidered). If we just accepted settled case law as the final word then for good or bad we wouldn't have any other avenues when we feel a law is being applied wrongfully.

But yes, you're correct in that I don't give precedent much consideration. I give the reasoning behind it thought, but not preference. I'm not bound by such things & I am free to decide what a constitution (or a law) means. If a person, be he judge or janitor disagrees, then it's my job to persuade him through my reasoning.

"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."

The first approach is a good one if your ultimate goal is stability. Mine is not. I'd rather have a matter decided rightly with due consideration to the equal rights of a person even if it leads to some turmoil.

& natural law - that's the basis for many of the amendments in the Bill of Rights. Life, Liberty & Property are the cornerstones of that document, as well as our whole system. When you start disregarding that, then it's not so difficult to arrive at conclusions which are great for the state, but horrible for the person.

The 2nd amendment acknowledges (not grants, acknowledges) a pre-existing Right that is necessary for defense of self. Self defense is one of the fundamentals, necessary to properly realize the Right to Life. Having the means to achieve that end (self defense) is an enabling Right without which the primary Right may well in fact be worthless. Though not couched in those terms the framers did see the connection. They viewed the 2nd amendment as acknowledging that the Right to Arms was extent prior to enumeration & government had no business tampering with it.

Legally of course natural law holds no binding weight, neither does the Declaration of Independence, but both can & should be appealed to if the need for understanding the views of the framers arise in a matter of jurisprudence. In other words a claim that it violates natural law probably won't hold up in court, but explaining that a law is unconstitutional because the framers wrote the worse with the natural law in mind should be persuasive.

"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 prohibiting 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.)"

You're correct. The constitution does not grant an absolute Right to Arms. It acknowledges it. Take away the constitution & the law. Look at man in a state of nature. Could you really argue that it would not be a just & proper action for a man to arm himself to protect his own life from any threats he is likely to face? Would you not say that it would be wrong for another to disarm him arbitrarily?

& falsely yelling fire in a theater (where the hell are those firemen by now?) - I think you've misunderstood what I have been trying to say. Absolute, in the context of my (& presumably others) pro-gun leanings, means simply an absence of prior restraint. Prohibiting something because of the possibility of harm, not the immediate threat of harm is not a good way to treat constitutionally acknowledged Rights.. I don't have an issue (generally) with laws which prohibit the discharge of a firearm within city limits. Neither do I have a problem with laws which prohibit indiscriminately shooting at things or people while driving down the interstate. But prohibiting possession of objects because they may be used for such purpose is repugnant both to natural law & a constitution or two.

If you yell fire in a crowded theater you're punished but not until you yell fire. While you are drawing the breath that you intend to use to yell fire you are still protected by the constitution. It's only when you act in a manner harmful (or potentially harmful) to others that you are legally restrained.

Now let's apply the same reasoning behind the gun control laws we have today to the 1rst amendment's free speech clause:

When you walk into a theater your tongue is cut out & your lips are sewn shut because you are not allowed the ability to yell fire.

Think that would pass constitutional muster?

But that's how the 2nd amendment is viewed; prohibiting ability does not conflict with the 2nd amendment even though similar prohibitions on the 1rst would be summarily rejected.

If I walk down the street with a shotgun slung over my shoulder, & that shotgun has a 16" barrel yet I lack the paperwork for it, how exactly am I causing anyone harm? What would the justification be for an intrusion into the 2nd amendment? With or without the shotgun I could just as easily yell fire as I walk into a crowded theater right off that street. Conversely I could just sit there quietly & enjoy the show. With the shotgun I could unsling it & start shooting randomly, or I could just walk down the street minding my own business.

Prior restraint based laws presume an ill intent on the part of those they're directed against. It's damn insulting really. To say that because I have a long gun with a shorter than permitted barrel or a machine gun minus the proper paperwork or a firearm at all without first obtaining permission that I'm going to commit some vile act is demeaning as hell. But such is the logic behind prior restraint.

Again, apply the same laws relating to freedom of speech or free exercise of religion as you'd think are reasonable concerning arms. when you do I think you'll find that the standard of review is not fair at all, despite speech & religion being just as harmful (historically) as arms have been when used by those with harmful intent.

"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."

No; it contemplates that ideally a militia should be well regulated. It demands that the people's right to arms not be infringed.

See, the first clause should be properly thought of as explanatory, but not binding or restricting on the second clause. An explanatory clause followed by an operative clause.

I offer you this:

"The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty"

Would that mean that only the press has any rights to publication of opinions? After all it does say that the liberty of the press is essential to a free state, would it stand to follow that only a person who is a member of the press could enjoy its protection?

No; an explanatory clause does not negate or otherwise restrict an operative clause. Any person would enjoy such protection regardless of their affiliation or lack thereof with a newspaper or journal.

For more on this I'd recommend Prof. Volokh's The Commonplace Second Amendment.

"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!"

I pointed out the militia statute in order to show that the governor of a state cannot arbitrarily decide who is or isn't in a militia. You're right in that statute law such as that doesn't negate (even in part) constitutional provisions, if that's what you were implying.

But the broader point is that a militia is simply the individuals in a society acting towards the common defense. Age, gender or other limits really wouldn't matter in a desperate situation. That's why the 2nd amendment protects an individual's Right to arms - because without it (the individual’s Right) the militia would not be as effective as it's hoped it would be.

"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."

Actually if you take away the descriptions found in the statutes, the "organized" militia would be akin to a "select" militia from the late 18th century. The "unorganized" militia would simply be the remainder of the militia. But leave it to congress to screw up simple concepts through creative phrasing.

"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."

Well since the operative clause of the 2nd amendment does not cleave the population by gender I'd have trouble seeing that women were not to enjoy the same constitutional protection. In that the federal militia statute seems to have erred, but only if you rely on it for deciding who enjoys the 2nd's protection. To be clear that's a view I do not hold. Along the same line we could argue if a military institution should prohibit women from being deployed in front line service. Not exactly 2nd amendment related but it would (& has been) an interesting equal protection discussion.

Felons - again I see nothing in the language of the 2nd to make an exception for people convicted of certain crimes then released. I admit that I'm not up on the civil rights of ex-cons in the late 18th century but I do recall a law here in Colorado that was recently repealed that provided a person a horse & a gun after their release from prison. So again opine that perhaps the framers didn't really view it as an issue worthy of addressing. But since there is no mention in th text of the constitution then I'd say we had to err on the side of an individual's Right rather than a compelling government desire to deny someone arms based upon their past condition.

& it can & does bear serious meaning on the 2nd amendment (felon re-enfranchisement that is). First of all I think you're looking at things from the wrong perspective; the constitution does not enable people to legally do things - rather it prevents the government from prohibiting thing or requiring things. It's a controlling document directed at government, not an enabling one directed toward individuals. So the idea that its protections only apply to certain individuals is looking at things backwards.

But more disconcerting is what it does take to become legally disqualified from owning or possessing a firearm. 18 44 922 (g) defines who may not legally own or possess a firearm. 18 44 921 (a) 20 provides some exceptions. USC 18 44 925 (c) does provide a relief from the disability, but congress has denied the AG funds for such reviews since around 1991 & its effectively useless. As you can see federal crimes punishable by more than 1 year in prison (& state crimes punishable by more than two) disqualify someone from ever legally having the means of self defense again.

Now an emotionally stronger argument could be made if the law applied only to violent criminals, but there are a lot of crimes punishable by a year or two in prison.

& I keep accenting punishable for a reason; let's say that technically you did in fact commit some disqualifying crime, but the judge felt your motives were not treacherous & gave you a 1 day suspended sentence. You'd still be disqualified. Not a very sympathic situation for those who want to keep axe murderers from acquiring firearms is it?

So I'd say that just looking at the statute law that re-enfranchisement is an issue that deserves much consideration. When you add the constitutional prohibition on the feds (& via the 14th the states) denying individuals arms, then it does have significant bearing as a 2nd amendment question.

"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 don't try to escape the words "well regulated". Instead I try to not assign them where they were not assigned. If you wish to make an argument for having a regulated militia via the states, then I'd probably be behind you all the way. But the operative clause is not restrained by the explanatory clause. So "well regulated" could not apply to a background check for buying arms.

"Infringed" would be a word that comes from the 2nd amendment & has application to background checks (yes; bad puns are always intentional). The government having the ability to approve of or deny a person who seeks to acquire arms is against the very nature of the 2nd amendment. They were concerned about the federal government denying arms to the people & thereby rendering the militia's useless. A background check would have been a big concern of theirs had such a system been suggested (or possible).

"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."

I don't think I've tried to hide that I am an absolutist. First convince me that congress has the power to deny arms to anyone not currently under their direct control (i.e. in prison) then we can talk. Till then I stand by the background checks being unconstitutional as well as immoral & dangerous).

"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."

I think in the previous paragraphs I've written here I've shown that your conclusion is not as solid as you'd perhaps think. I see nothing that permits prior restraint based regulations of a person's Right to Arms. The phrasing of the amendment is properly understood as having two parts; one explanatory the other operative, & the former does not restrict the latter. & the 2nd has been shown much less courtesy than the other amendments which I would say would be contrary to the way they've been 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."

The 2nd does not contain a qualified either. It contains an explanatory clause. & the jurisprudence of other amendments is not perfect, but they have been treated much closer to being absolute (again, I mean a lack of prior restraint based law) than the 2nd has since about 1934. The Right to Arms is not subject to any regulation from the language of the 2nd amendment. It implies that the militia should be regulated, but the object of regulation is the militia, not the people's Right to arms.

I think what it can be boiled down to is that you misunderstand the construction of the 2nd amendment. Further you dismiss too casually the amount of prior restraint based law which is applied despite the 2nd amendment whereas other amendments would not be viewed to allow such. I'd have sooo much free time if the 2nd was given the same treatment as the others.

Hopefully I've made clear what the differences we have are. If not or you still find some room to argue against my reasoning feel free to leave a comment. Or e-mail me if you prefer & I'll be happy to post it.

Posted by Publicola at September 16, 2005 11:20 PM | TrackBack