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ipser
02-02-2010, 10:07 AM
Result-driven judicial imperialism may soon have a conservative and a liberal version. The United States Supreme Court has granted review in a case this term (McDonald v. City of Chicago) that presents the watershed issue of whether the individual right to bear arms protected under the Second Amendment and established in 2008 in District of Columbia v. Heller applies against the states or just the federal government. Most Court observers agree that it appears very likely that the Heller majority—Chief Justice Roberts and Justices Scalia (who wrote the opinion), Thomas, Alito, and Kennedy— will stay together to incorporate this new reading against state and local gun regulations. (McDonald, like Heller, involves a handgun ban.) Such a result will visit irreparable damage on the doctrine of original understanding, one of the theories of constitutional interpretation referred to as “originalism,” which seeks constitutional meaning through text and context: that is, by a rigorous reading of the actual language of the Constitution and the historical understanding of that language. This is a doctrine of judicial modesty that is in sharp contrast to the adventurism of Heller and its likely incorporation.

Heller itself is the root of the problem. In that case, Justice Scalia brought together a large quantity of historical information to support the argument that the Second 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”) embodies an individual right not connected to military service to keep and bear arms. However, in a cogent dissent that also relied extensively on history, Justice Stevens concluded that the Amendment did not create any such individual right. While the historical record does not unambiguously point to one conclusion on such a complicated question, the Heller Court nonetheless aggressively declared a brand-new individual right.

http://www.thepublicdiscourse.com/2010/02/1131

Obviously I don't agree with the opinion expressed in this article but forwarned is forearmed.

7x57
02-02-2010, 10:44 AM
I am just happy that the opposition has had to concede the originalism point and fight on those grounds. That is progress.

7x57

ipser
02-02-2010, 11:36 AM
What really shocked me about the Heller decision was how quickly most gun control proponents accepted it in principle, if not in practice. Even HCI spokesmen seemed to be acknowledging the individual RKBA even as they lobbied for more gun control.

Did they ever really believe in the collectivist interpretation? Or was it just a gigantic fraud to provide legal cover for gun control?

7x57
02-02-2010, 11:40 AM
Or was it just a gigantic fraud to provide legal cover for gun control?

Yes. :D

7x57

dfletcher
02-02-2010, 12:16 PM
What really shocked me about the Heller decision was how quickly most gun control proponents accepted it in principle, if not in practice. Even HCI spokesmen seemed to be acknowledging the individual RKBA even as they lobbied for more gun control.

Did they ever really believe in the collectivist interpretation? Or was it just a gigantic fraud to provide legal cover for gun control?

Who knows what they believed in, if anything. That they did the "the extremes are off the table" routine does not dissuade them from their ultimate goal of gun control by whatever means available.

I think a little Sun Tzu goes a long way helping us understand the antigun groups and their methods.

Cokebottle
02-02-2010, 12:27 PM
The problem is, liberals view the Constitution as a list of permissions for the people. We HAVE the right to free speech. We HAVE the right to keep and bear arms. We HAVE the right to be secure in our homes. We HAVE the right to remain silent, etc....
It is not.
It is a list of restrictions AGAINST the government.

Everything I said above is true, but ONLY because the Constitution
PROHIBITS the govenment from silencing us, PROHIBITS the govenment from confiscating our weapons, PROHIBITS the govenment from searching our homes without warrant, PROHIBITS the govenment from forcing us to testify against ourselves, etc....


Following that mode of thinking, the "States' Rights" issue becomes more clear, and there is no conflict between one being in favor of States' rights, but at the same time in favor of incorporation.

The States should be free to pass legislation that is LESS RESTRICTIVE than the Federal Government, but the States should not be free to pass legislation that is more restrictive if those laws also violate the Constitution.

Ike Arumba
02-02-2010, 9:51 PM
Right on, Cokebottle!

pitchbaby
02-02-2010, 10:14 PM
Everything I said above is true, but ONLY because the Constitution
PROHIBITS the govenment from silencing us, PROHIBITS the govenment from confiscating our weapons, PROHIBITS the govenment from searching our homes without warrant, PROHIBITS the govenment from forcing us to testify against ourselves, etc....




Let me add my support to your statement.... CHEERS!!!

Kharn
02-03-2010, 2:00 AM
What really shocked me about the Heller decision was how quickly most gun control proponents accepted it in principle, if not in practice. Even HCI spokesmen seemed to be acknowledging the individual RKBA even as they lobbied for more gun control.

Did they ever really believe in the collectivist interpretation? Or was it just a gigantic fraud to provide legal cover for gun control?All 9 Justices in Heller said it was an individual right, only 5 said a handgun ban infringes on that right. It was a paradigm shift that the gun control advocates had to adapt to or risk being irrelevant.

loather
02-03-2010, 7:57 AM
All 9 Justices in Heller said it was an individual right, only 5 said a handgun ban infringes on that right. It was a paradigm shift that the gun control advocates had to adapt to or risk being irrelevant.

... Which is a very important distinction to make. Additionally, this is likely the same outcome we'll see when defeating Chicago's handgun ban: all the justices in agreement that precedent set by Slaughter-House be overturned and have the entire bill of rights incorporated, OR the second amendment selectively incorporated through due process, while at the same time somehow four of the justices will remain convinced that such a ban will not infringe on the constitutional right.

So, the way I look at it, incorporation is all but guaranteed. It's the Chicago gun ban that will be the hotly-contested item. However, I have a strong feeling that particular case will go in our favor as well. It'd be folly of the Supreme Court to not follow the correct decision set forth by the Heller case and rule contrary to their own precedent.

That being said, I'm looking forward to June.

7x57
02-03-2010, 8:29 AM
Did they ever really believe in the collectivist interpretation? Or was it just a gigantic fraud to provide legal cover for gun control?

Yes. :D


I found the article, so I elaborate. I wasn't actually taking a cheap shot--I claim that it's been demonstrated to be fraud in this paper (http://www.guncite.com/journals/rk-exp.html). It's long, so I'll quote only a few juicy bits.


We will not enter that debate in this Article. Instead, we will undertake what physicists term a "thought experiment." We will take as a given that the Second Amendment does what states' rights advocates say it does, protecting only the right of states to maintain organized military forces such as the militia and the National Guard, without creating any rights enforceable by ordinary individuals. We will then explore an issue that has been ignored even by proponents of the "states' rights" interpretation of the Second Amendment: If the Second Amendment grants rights to states, rather than individuals, what exactly are those rights, and what are the consequences for the Constitution and other aspects of state and federal relations? The answers to these questions turn out to be rather startling and likely will displease gun control advocates every bit as much as their opponents.



The states' right interpretation appears to be employed against the individual right interpretation in much the same fashion as a chain of garlic against a vampire, pulled out and brandished at need but then hastily tossed back into the cellar lest its odor offend.



The consequences of such a right are likely to be rather radical. In short, if the Second Amendment protects only a state right to maintain an independent military force, it creates no purely individual right to keep and bear arms, exactly as gun-control proponents argue (although it is possible that courts might derive some individual rights by way of inference). However, the consequences go far beyond that particular result. If the Second Amendment creates a right on the part of the states, rather than individuals, then by necessity it works a pro tanto repeal of certain limitations on state military power found in the Constitution proper, renders the National Guard unconstitutional, at least as currently constituted, and creates a power on the part of state legislatures to nullify federal gun-control laws, if such laws are inconsistent with that state's scheme for organizing its militia. Although these results may seem far-fetched, closer examination will reveal that they are inevitable results of a states' right formulation.



Under a states' right interpretation, the states themselves would be free to regulate, or even entirely forbid, gun ownership, subject only to general constitutional guarantees, such as due process and equal protection.[44] But this result would not be (p.1753)achieved without cost: Federal power to restrict firearms ownership necessarily would be concomitantly limited. By long-established tradition, states do not arm civilians they call upon for armed service: Militiamen, civilian volunteers, and persons called for service in the posse comitatus are expected to provide their own arms.[45] At the same time, however, the great majority of states allow law-abiding, responsible adults to possess a wide variety of firearms under extensive regulation,[46] while felons and juveniles, for example, generally are forbidden firearms.[47] Given the tradition of extensive firearms regulation and of a self-armed militia, a state's failure to outlaw general possession of particular kinds of weapons could be deemed to reflect an affirmative judgment that such possession serves a policy of maintaining an armed citizenry as the state's ultimate military reserve.[48] If so construed, a state's mere failure to outlaw certain arms would preempt the application in that state of any federal law banning those arms.



If the courts accepted a negative pregnant application of state gun laws, it would, as a matter of constitutional law, confine federal gun legislation to the limited role to which it traditionally has been confined as a matter of policy--reinforcing state gun laws by prohibiting the movement of firearms in interstate commerce from those states in which they are legal to states in which they are prohibited.[49] This result would have many interesting implications, not the least of which would be its effect on the long-standing (and surprisingly large) American market for denatured World War II fighter planes and Soviet jet fighters, which are currently available at prices as low as $50,000.[50] In the many states whose laws allow machine gun ownership, the "recreational fighter pilots" who flock to buy these denatured aircraft could re-equip them with machine guns and automatic cannon for service in the unorganized militia. Although seemingly far-fetched, this result is a natural consequence of the states' right approach, though not, as will be discussed, of the individual right approach.[51]



Our thought experiment has thus produced two noteworthy results. The first is the realization that the states' right interpretation of the Second Amendment, if taken seriously, would produce rather radical consequences--consequences that (perhaps deliberately) have not been discussed by its proponents. In light of those radical consequences, and the interpretation's general inconsistency with the rest of the Constitutional scheme, the states' right theory looks like a dud.[92] What is amazing is that it has achieved such currency, at least in the popular constitutional debate.

And that is the second lesson. Although the states' right interpretation has obtained very little in the way of scholarly support in journals that require footnotes,[93] it has been widely circulated in the popular press, even by respectable scholars who should (and, one suspects, do) know better.[94] And this suggests a rather (p.1766)unfortunate fact: the constitutional currency has become rather debased. In the Reagan era, right-wing scholars and spokespeople were trying to narrow constitutional rights through specious interpretations. Now, with political power having shifted, the disease has spread to those on the left. Meeseism, it would seem, respects no ideological bounds.

This state of affairs is unfortunate, and for those of us who at least try to take the Constitution seriously, it is frustrating. And, because the Constitution is our blueprint for living together without killing or tyrannizing each other, it may even be dangerous. Interpreting the Constitution faithfully is hard work and is certain to generate some answers that the interpreter does not like--at least, it is certain to do so if the interpreter is being honest.[95] We thus should be suspicious of those whose theories generate only results that they like, whatever their ideological stripe.[96] Although it is certainly true that constitutional interpretation is an inexact science, and that there may be a wide range of "right" answers to constitutional questions, it is also true that some answers are better than others: more in accord with principles of craft, more consistent with the constitutional scheme, or better grounded in history.[97] By this standard, the (p.1767)states' right argument fails. But by the more modern standard, of newspaper advertisements and political talking-head shows, that matters little. It may well be that there is a "Gresham's Law" of pop constitutionalism, with the bad scholarship (if that is the word) driving out the good.

The solution to this problem is beyond the scope of this Article, which has merely served to illustrate its existence in one particular context. But having already made use of the "thought experiment" technique, perhaps we could take another lesson from the world of scientists, where publication of research is seen as a test of its authors' seriousness. Instead of allowing law professors to opine freely based on some general sense of their expertise, perhaps we should challenge them by asking if their views are supported by published articles--their own, or other people's. This rather minimal requirement, that arguments be set out in writing and supported by research, would nonetheless provide a substantial amount of discipline to the world of talking-head constitutionalism. It also would ensure to some degree that those who make constitutional arguments in the public arena have spent some time thinking them through first. That too, to judge from current circumstances, would be a step forward.

Until the happy day arrives when this proposal is adopted, we can at least criticize talking-head constitutionalism in the law reviews, with the hope that such criticism will percolate back into the general society. (Such criticism, after all, is a major reason for having law reviews.) The Constitution, and especially the Bill of Rights, is a package deal: It is all or nothing, and for each of us there are likely to be parts we dislike. Where such parts exist, the answer is either to live with them or to amend the Constitution, not to interpret pieces of it out of existence. There always will be a market for those who feel otherwise just as there always will be a market for "miracle" diets that purport to let people eat all they want and not exercise. But the Constitution, unlike the diet industry or the mass media, is not founded on giving the people what they want. We forget that at our peril, and as the mass-marketing of the states' right interpretation of the Second (p.1768)Amendment demonstrates, we appear perilously close to forgetting it now.


7x57

AJAX22
02-03-2010, 9:00 AM
Government (PARTICULARLY the federal government) does NOT have rights, they have Powers, as enumerated in the constitution.

The collectivist argument is beyond retarded.

PatriotnMore
02-03-2010, 9:24 AM
Concise and to the point. We do not need volumes of wordy edification on this matter, what we need is absolute compliance from the federal government in this regard. Encroachment, friends in high places, and complicity by the high court in many instances has been the problem.

It is time that states stop encroachment, and force the federal government to stick within the LIMITED enumerated powers they were given in the Constitution.



Government (PARTICULARLY the federal government) does NOT have rights, they have Powers, as enumerated in the constitution.

The collectivist argument is beyond retarded.

ipser
02-03-2010, 11:15 AM
I found the article, so I elaborate.
Thank you, great stuff. Hopefully this is just material for the history books now but it's good to know that someone thought this through already.

Don't underestimate the value of "volumes of wordy edification". Gun owners (and Americans generally) won in Heller thanks, in large part, to the volmes of very serious and high quality scholarship that occured over the last couple decades.

It may seem like beating a dead horse now but that was not the case previous to Heller.

Rivers
02-03-2010, 12:40 PM
A quick search confirmed what I thought was incorrect in the OP, about Stevens affirming a "collective right":
(Below text from http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution #District_of_Columbia_v._Heller )
- - -
The dissenting opinion, written by Justice Stevens, stated that:

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.[151]
- - -

Even in dissent, the Justices still accepted that the RKBA belonged to individuals and not the states or government. The dissenting Justices were concerned about the degree of regulation that could be put on the 2A by the gov't against the individual.