Does the 2nd Amendment mean what its author(s) originally intended?

[kcbrown]

I believe this is the source of Scalia's 'warning' not to confuse the reason for codification with the intent behind the Amendment. It's a 'trap' easily fallen into with the approach you are suggesting.

Quite so. One must be exceedingly careful and clear about what one is interpreting in the first place, and how intent relates to it, and how that intent is relevant to the interpretive exercise.

Which pretty much summarizes why I've adopted the role of Devil's Advocate in this thread. It's your journey of discovery (and, hopefully, 'achievements') vis a vis the 'ideal' you've been putting forth over the last several years.

And what a journey it's been, too! And it continues. I'm now working through, among other things, what "infringe" really implies, and even whether "the right" that the 2nd Amendment references really is that preexisting thing, with its preexisting scope, or whether "the right" in the 2nd Amendment is a shorthand for something else, perhaps something like "the traditionally lawful exercises of the right".

For instance, when Scalia says "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them", the term "rights" clearly must not be a reference to the preexisting rights, because the scopes of those are preexisting as well (and thus defined long before adoption), and what they were understood to be at the time of adoption is wholly irrelevant to that. Put another way, it doesn't matter what the scope of the preexisting right was understood to be at any point in time, because the scope of the preexisting right is itself preexisting and thus fixed independent of any understanding. That means Scalia must have been talking about something else, like the scope of lawful exercise of the right as understood at that time, a.k.a. traditionally lawful exercise.

Or something. I'm still working through this, so my thinking on this is still rather fuzzy.

[TrappedinCalifornia]

...For instance, when Scalia says "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them", the term "rights" clearly must not be a reference to the preexisting rights, because the scopes of those are preexisting as well (and thus defined long before adoption), and what they were understood to be at the time of adoption is wholly irrelevant to that. Put another way, it doesn't matter what the scope of the preexisting right was understood to be at any point in time, because the scope of the preexisting right is itself preexisting and thus fixed independent of any understanding. That means Scalia must have been talking about something else, like the scope of lawful exercise of the right as understood at that time, a.k.a. traditionally lawful exercise.

Or something. I'm still working through this, so my thinking on this is still rather fuzzy.

You're getting warmer.

Remember what I said was one of my differences with Scalia (and others). The term "right" is often used when they are speaking to "liberty." I get what they think they are expressing, but it is and can be confusing. What I contend is that a distinction needs to be made. A case in point (noting the part I placed in bold)...

stare decisis to Roe v. Wade, the landmark Supreme Court decision establishing a constitutional right to choose. Roe recognizes a right to choose as a liberty interest protected by the 14th Amendment Due Process Clause (which prohibits states from denying persons life, liberty, or property without due process of law). ...

What it boils down to is the definition of 'Constitutional right'...

Constitutional rights are the protections and liberties guaranteed to the people by the U.S. Constitution...

Note protections and liberties, not 'the right.' Thus, when people such as Scalia reference 'rights,' they are often referring to 'liberties,' not 'the right.'

Now recall what I said about how a constitution, any constitution, including our Constitution, cannot speak to natural rights beyond recognition of the right's existence. Thus, it can only speak to the actions (liberties) derived from the right within the context of how those actions are exercised in society; e.g., 'traditionally lawful exercise.' Again, such is why I reference the myth surrounding not being able to yell "Fire!" in a crowded theater.

The 'myth' is that you cannot do so, period. The reality is that such is not what was said...

...The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic...

Note the caveat... falsely.

It is legal, with many arguing that it would be your civic duty, to yell "Fire!" if, in fact, there were a fire. What is illegal is doing so falsely and with the intent of causing harm (panic). Thus, the limitation of the liberty to exercise one's right to Free Speech isn't the act of yelling "Fire!." The limitation is in doing so falsely and with the intent to do harm. Put another way, you have every right to yell "Fire!," whatever the reason. However, certain limitations were determined by society and codified into Law, so as to best serve society and those limitations are founded on 'accuracy' and 'intent.' Negative consequences were then prescribed, not based on belief in the accuracy of the declaration, but in knowingly declaring something false with the intention of causing harm.

This is directly analogous to Scalia's reference to affrighting...



As I said back in Post #42, Post #51, and Post #58...

...What you are attempting is to create a definitive from an 'amorphous;' amorphous being defined as something less than definitive. What I and many others have argued is that we were given the amorphous for a reason. As I said in my previous post, 'original intent' was based in We the People being willing to interact with a degree of conformity which not only allows for individuality, but protects it. It's something exemplified in Scalia's reference to "affrighting" as an existing limitation on the exercise of the right. It wasn't a prohibition against carrying the weapon. It was a prohibition against carrying the weapon for the purposes of frightening people...

Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right...

Such represents one of my personal peeves with Heller. In the way Scalia wrote the opinion, he occasionally appears to 'conflate' scope with exercise. Even though one can readily derive his intent, it's a penchant which has been repeatedly used against us in something Thomas later characterized as a 'crabbed reading.' If the scope of the right includes all 'bearable arms,' then the limitations must reference the exercise of the right vis a vis which 'bearable arms' are considered appropriate to be borne in society. (Thus, his reference, once again, to "affrighting" and the intent of the bearer.)

In other words, as I alluded to previously, Scalia had to set "the most likely reading" of the right as individual and the scope of the right applying "to all instruments that constitute bearable arms," even in modern times, against the idea (at least, in part, at the behest of Kennedy)...

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...

...you not only have to define what you are attempting to convey the "original, intended meaning" of, but the context for that meaning, while allowing for sufficient flexibility in the application of that meaning to permit individuals to act and society to function. That's the 'balancing act' I keep referring to. It's why I keep referencing Scalia's noting of "affrighting." The 'law' wasn't that you couldn't carry that type of weapon, period. The 'tort' was that you couldn't carry that type of weapon for the purpose of... frightening people...

Such is why I used 'carry laws' as my exemplar in Post #196...

...As I have discussed in other threads, we actually have a right to "bear arms" and a derivative liberty to carry. How extensive that liberty is will be based on an host of factors, including, but not limited to: location, culture in that location, type of arm, purpose, etc. In other words, if the 'common sense' basis for and limits on interpretation are recognition of the right coupled with a recognition that some limitations would not only be necessary, but could and must be based a workable compromise, where neither 'side' gets everything, leaving the other with nothing. In other words, as I stated earlier in the thread...

...What that means for We the People and the Judiciary and the Politicians is that each 'side' gets something or everyone ultimately ends up with nothing. In other words, 'compromise' has become a dirty word precisely because it is no longer viewed as a compromise so much as "we/they get what we/they want and you or I might be left with... something." It's something you see underlying Sotomayor's reflection on the Court; i.e., 'if we eliminate abortion...' In other words, it is framed as unfettered abortion vs. no abortion rather than abortion being allowed under specific circumstances rather than as simply another method of birth control.

It was the 'art' of compromise we see in the Constitution. It's why the Constitution and the Bill of Rights lacks a certain amount of specificity. Both allow for flexibility to adapt to the times and the circumstances and the People...

It's not about preaching to the choir or having a specific which is restrictively held to. It's about We the People being willing to interact in the 'originally intended' manner; i.e., a degree of conformity which not only allows for individuality, but protects it...

I think this also addresses your issue...

Certainly that's our "common sense", which is precisely why we hope it is "common sense" to most. But hope is not at all the same as a guarantee, and you obviously recognize that (which is why you phrased it as you did).

Does such a 'world' actually exist? No - or, at least, not for long in the History of Mankind. Yet, that's not the point and never has been if we remember that, philosophically, the Constitution represents an ideal to be striven toward. It is based on a sharing, by a majority, of that ideal... interpretation largely lies in agenda. Without a sharing of those ideals, the agendas will be varied and, often, contradictory. As I said earlier in the thread, an 'ideal' is a goal to be aspired to and, in fact, is what the Great Experiment is all about. It's never been about achieving the goal. It's been about the process of attempting to reach the goal and what we, as a People, learn from that process.

As a result, in the specific related to 'carry,' as I've noted on several threads, if we simultaneously accept that there is a derivative liberty to carry, but that Government (society) has the authority to impose limitations on that liberty, then rather than the 'preemptive laws' which constitute much of the 'gun laws' now being passed, perhaps it would be more propitious to return such laws to their natural, reactive state; e.g., consequences for unacceptable behavior. Example: You 'carry' for self-preservation purposes. Is the manner of carry preemptive or provocative? In many respects which matter, such is dependent upon the context.

Thus, you need to be cautious not to hang your hat on "the scope of lawful exercise of the right as understood at that time" as a limitation on Government authority. Why? Because, once again, you would be attempting to derive a definitive from something deliberately left amorphous due to a need for 'common sense' flexibility surrounding how 'conformity' is defined.

[kcbrown]

You're getting warmer.

Remember what I said was one of my differences with Scalia (and others). The term "right" is often used when they are speaking to "liberty." I get what they think they are expressing, but it is and can be confusing. What I contend is that a distinction needs to be made. A case in point (noting the part I placed in bold)...




What it boils down to is the definition of 'Constitutional right'...

I agree, a distinction needs to be made.

One of the main things I'm wrestling with right now is whether or not the words of the 2nd Amendment itself are referencing the preexisting right, or something else. When the 2nd Amendment says "the right to keep and bear arms", is it referencing that preexisting right or is it referencing something else? You can't say that it's referencing the "Constitutional guarantee" because the 2nd Amendment is that Constitutional guarantee, and such a reference would make it self-referencing. So what, then, is the 2nd Amendment itself actually referring to here?

It matters enormously. The entire notion of infringement as mentioned in the 2nd Amendment hinges on it.

Note protections and liberties, not 'the right.' Thus, when people such as Scalia reference 'rights,' they are often referring to 'liberties,' not 'the right.'

I agree. What, then, of the 2nd Amendment itself?

Now recall what I said about how a constitution, any constitution, including our Constitution, cannot speak to natural rights beyond recognition of the right's existence.

Well, this implies that "the right" the 2nd Amendment speaks of is not the preexisting right, because if what it references is the preexisting right, then it does more than merely point out its existence, it says it shall not be infringed.

Thus, it can only speak to the actions (liberties) derived from the right within the context of how those actions are exercised in society; e.g., 'traditionally lawful exercise.' Again, such is why I reference the myth surrounding not being able to yell "Fire!" in a crowded theater.

Absent other considerations, that would certainly make sense: that the 2nd Amendment is saying that it is the liberties, derived from the right to keep and bear arms in the context of how those actions are exercised in society, that are ultimately protected from infringement.

But this leads me to contend with another issue: how can the 2nd Amendment be a guarantee if there isn't something that is invariant in that which is guaranteed? If there is something that is invariant, then what is it? The acceptability of any given thing in a society is, it seems to me, entirely up to the whims of that society, and is something subject to change over time. How can one claim that the 2nd Amendment is a guarantee of anything in the face of that unless what the 2nd Amendment is referencing is more than (or at least different than) liberties derived from the preexisting right in the context of how (or even if) those actions are exercised in society, particularly when we bear in mind that the actions exercised in society are those that the society tends to allow and thus find acceptable?

Thus, you need to be cautious not to hang your hat on "the scope of lawful exercise of the right as understood at that time" as a limitation on Government authority. Why? Because, once again, you would be attempting to derive a definitive from something deliberately left amorphous due to a need for 'common sense' flexibility surrounding how 'conformity' is defined.

I agree, great care needs to be taken here, and that's why I'm having a difficult time with this (that shouldn't be much of a surprise. Greater minds than mine have surely struggled with the same things in one way or another).

The issue I'm having at the moment is squaring the notion of a guarantee with the something that is sufficiently amorphous that it appears, on its surface, to be sufficiently flexible as to allow or forbid pretty much anything on the subject of keeping and bearing arms. I don't see how to reconcile those two things.



I'm awfully tempted to drop back a bit and to consider things from a different first-principles oriented perspective, e.g. to look at it as a question of the traditionally lawful purposes of the preexisting right to arms, and what might derive from that. But I'd rather fully explore these other things first and see where it might lead, so that at least I have a fuller perspective before beginning any consideration of other possible approaches.

[TrappedinCalifornia]

I agree, a distinction needs to be made.

One of the main things I'm wrestling with right now is whether or not the words of the 2nd Amendment itself are referencing the preexisting right, or something else. When the 2nd Amendment says "the right to keep and bear arms", is it referencing that preexisting right or is it referencing something else? You can't say that it's referencing the "Constitutional guarantee" because the 2nd Amendment is that Constitutional guarantee, and such a reference would make it self-referencing. So what, then, is the 2nd Amendment itself actually referring to here?

It matters enormously. The entire notion of infringement as mentioned in the 2nd Amendment hinges on it.

This leads you down a rabbit hole in various ways. Spirit or letter? Are you infringing on the right or the liberty? Go back to the interview and note that even Scalia acknowledged not knowing whether something 'infringed' or not and it would have to be determined.

Well, this implies that "the right" the 2nd Amendment speaks of is not the preexisting right, because if what it references is the preexisting right, then it does more than merely point out its existence, it says it shall not be infringed.

Are you sure? Perhaps "the right" shall not be infringed, but the liberties can be. Wasn't that what Scalia was alluding to in the interview? It's part of the source of the confusion and there has been no, absolute 'settling' of it in over 200 years.

Again, as I have maintained, you and I would like things to be more black & white. But, that too has inherent and potential issues.

Absent other considerations, that would certainly make sense: that the 2nd Amendment is saying that it is the liberties, derived from the right to keep and bear arms in the context of how those actions are exercised in society, that are ultimately protected from infringement.

See? This is where you head down a rabbit hole. If "the right" shall not be infringed, but the liberties may be, you have a whole different slant; i.e., what 'liberties' were actually protected. Such seems to be where Scalia was headed, with the goal of seeking a more 'common sense' solution such as I have suggested in order to achieve a 'balance point' rather than a 'fixed' resolution.

You're still looking for an absolute which doesn't exist. For instance...

But this leads me to contend with another issue: how can the 2nd Amendment be a guarantee if there isn't something that is invariant in that which is guaranteed? If there is something that is invariant, then what is it? The acceptability of any given thing in a society is, it seems to me, entirely up to the whims of that society, and is something subject to change over time. How can one claim that the 2nd Amendment is a guarantee of anything in the face of that unless what the 2nd Amendment is referencing is more than (or at least different than) liberties derived from the preexisting right in the context of how (or even if) those actions are exercised in society, particularly when we bear in mind that the actions exercised in society are those that the society tends to allow and thus find acceptable?

What kind of guarantee are we talking about? Express or implied? Full or limited? How are those terms defined and how have they been? If 'limitations' are Constitutionally permissible (and we know that, traditionally, they have been), then you have to ask what was actually 'guaranteed' vs. what guarantee you are desirous of. Such will be highly influential in relation to one's analysis of 'original intent/meaning.'

What you are scratching is the cornucopia of interpretive methods vis a vis the Constitution which has existed for over two centuries. Again, you are looking for an absolute that simply doesn't and never has existed. In the case of the 'modern' Judiciary, "undue burden" has often been the phrase used since the 19th Century. I know it's often seen as 'distasteful' in light of how it is repetitively used in association with abortion; but, I believe, it underlay part of the rationale Scalia used in deriving the 'common use test' from Heller...

...United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes...

...MillerMiller permits. Read in isolation, MillerMiller) might be unconstitutional, machineguns being useful in warfare in 1939. We think
that MillerMiller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right...

We also recognize another important limitation on the right to keep and carry arms. Miller

More pithily phrased: It would constitute an undue burden to ban possession and use of firearms commonly used for lawful purposes (including, but not limited to, self-defense, hunting, and competition), but not necessarily those which are unusual and dangerous. Certainly that seems to be the way Alito and Thomas lean as well in that the Caetano decision was Per Curiam, meaning we don't know who wrote it, who sided with it, etc. But, we do know that Justice Alito wrote a concurring opinion, one which Justice Thomas joined. Significantly, particularly in relation to so-called "assault weapons," Alito penned...

HellerHeller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous...

As the foregoing makes clear, the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes todayHeller

Now, couple this with Thomas' dissent of the denial of cert in Friedman v Highland Park, a dissent signed on to by Scalia...

...Instead of adhering to our reasoning in Heller, the Seventh Circuit limited Heller to its facts, and read HellerHeller repudiates that approach. We explained in HellerHeller, the Seventh Circuit felt free to adopt a test for assessing firearm bans that eviscerates many of the protections recognized in Heller and McDonaldHeller fundamental premise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess... Moreover, the Seventh Circuit endorsed the view of the militia that HellerHeller. The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, HellerHeller

However, that test, as we've discussed in the past, is a two-edged sword and, frankly, is one of the very real, potential 'weaknesses' of the decision; regardless of the rationale Scalia was forced into in crafting it. "Common" is one of those 'undefined' or amorphous terms which can be interpreted in a number of ways. Such seems to be what Thomas (with Scalia signing on) was attempting to ameliorate in the above dissent.

cont'd...

[TrappedinCalifornia]

It's an intrinsic part of why...

I agree, great care needs to be taken here, and that's why I'm having a difficult time with this (that shouldn't be much of a surprise. Greater minds than mine have surely struggled with the same things in one way or another).

The issue I'm having at the moment is squaring the notion of a guarantee with the something that is sufficiently amorphous that it appears, on its surface, to be sufficiently flexible as to allow or forbid pretty much anything on the subject of keeping and bearing arms. I don't see how to reconcile those two things.

Which, again, is why Scalia was attempting to craft a 'test' which would narrow what could/couldn't be 'banned.' It's why when Wallace asked him how things would be determined, he said "very carefully." There are reasons Heller is considered "a first step" and why some describe it as 'groundbreaking.' My take is that, as I replied to MountainLion, what Scalia was doing with Heller was solidifying a form of the traditional interpretation as precedent to lay a foundation for future decisions such as McDonald. Unfortunately, he was sufficiently stymied that his death preceded his ability to more definitively address specific subjects. Now, we'll never know fully or with certainty exactly where he was headed; at least beyond a general, 'common sense' paradigm such as I suggested in relation to carry, workable compromise...

...if we simultaneously accept that there is a derivative liberty to carry, but that Government (society) has the authority to impose limitations on that liberty, then rather than the 'preemptive laws' which constitute much of the 'gun laws' now being passed, perhaps it would be more propitious to return such laws to their natural, reactive state; e.g., consequences for unacceptable behavior. Example: You 'carry' for self-preservation purposes. Is the manner of carry preemptive or provocative? In many respects which matter, such is dependent upon the context...

The 2nd Amendment recognizes a pre-existing, individual right which stands separate from Government. It provides a guide in terms of the individual's derivative liberty to act on that right; with a flexibility that allows for adaptability insofar as both limitations and permissibility. But, the limitations on the liberty cannot be such that they obviate or eliminate the right or the liberty entirely. Neither can the scope of the right be utilized to deny Government the ability to impose generally agreed upon (common sense/consensus) limitations. (Where a 51-49 split does not represent 'generally agreed upon' and, instead, denotes a 'tyranny of the majority.')...

Such seems consistent with Scalia's response in the interview.

I'm awfully tempted to drop back a bit and to consider things from a different first-principles oriented perspective, e.g. to look at it as a question of the traditionally lawful purposes of the preexisting right to arms, and what might derive from that. But I'd rather fully explore these other things first and see where it might lead, so that at least I have a fuller perspective before beginning any consideration of other possible approaches.

Be careful. Such is another rabbit hole. I linked to this 2004 piece earlier in the thread... A Well Regulated Right: The Early American Origins of Gun Control with the caveat of not paying attention to the message, but noting the documentation. However, in the context you are discussing, you will find that it highlights the idea that you will be right back to interpretative arguments...

...The most interesting and exciting new developments in the field of Second Amendment scholarship have occurred in the middle of this vast spectrum. A number of scholars have suggested that the time may have arrived to abandon both the individual and collective rights models." Although this simple dichotomy may have served the interests of modern gun rights and gun control advocates, this model has become an obstacle to framing a more sophisticated and genuinely historical understanding of the evolution of the constitutional right to bear arms. It may well be that history has little to contribute to this debate. Still, before deciding what relevance, if any, the history might have to the interpretation of the Second Amendment in contemporary constitutional theory, it is important to get the history right.

Rather than give greater weight to only part of the text, recent scholarship strives for a more holistic reading of the Second Amendment. According to this view, the right protected by the Second Amendment is neither a private right of individuals nor a collective right of the states. Perhaps the best way to describe these alternative models would be to characterize them as part of a new paradigm which views the Second Amendment as a civic right. The right to bear arms is one exercised by citizens, not individuals (an important distinction in the Founding Era), who act together in a collective manner, for a distinctly public purpose: participation in a well regulated militia. While issues of federalism and states rights continue to be relevant to understanding the context of the Second Amendment debate, the text fits a civic rights model better than either the individual or collective rights paradigms.

This civic rights model comes the closest to faithfully translating the dominant understanding of the right to bear arms in the Founding Era...

Now, set that against what Scalia laid out in Heller as the 'history and tradition' and recall what I've said regarding Carr's take on What Is History? In other words, a first-principle approach would simply be yet another exercise in identification of what YOU consider to be the 'basic elements' and a reconstruction as YOU see appropriate. In other words, you set a deductive premise and everything which follows, under the rules of deductive logic, must flow from that premise. Which brings you right back to the issue of establishing that YOUR premise is the 'correct' one. In that sense, it's a form of attempting to create an 'unassailable' box, which is akin to what you've been attempting all along and, thus, MountainLion's caution...

...You are solely focused on creating a mathematics-like prescription for interpreting the text of the 2A, but that's simply not relevant, it's not how the real world works. You should put your effort into convincing voters that guns are a good thing...

In a very real sense, you are attempting to take Scalia's approach, but make it an absolute so as to divorce the result from any or most 'interpretation.' Yet, you would begin with an 'interpretation' as the very premise. It's a paradox; i.e., an inherent contradiction which still very much leaves the taste of "my way or the highway" in its resolution. I recognize that may not be your intent. But, that is very much how it would come across where...

...that's where different interpretations can still come into play.

One advantage of Scalia's interpretation is that it is nebulous. That makes later "clarification" possible. That "clarification" can go in either direction (more expansive, or more restrictive), and (supposedly) some of that is likely to occur through persuasion.

So various interpretations aren't irrelevant, at least not yet, and it may be that they never will be, because it's a continuous and ever-evolving discussion that we in society are having...

...you are attempting to get past the "not yet" by making YOUR interpretation the dominant (and only acceptable) one.

Remember, as I have continuously cautioned, you're talking about a national level definitive. In a sense, what you desire is an obviation of the need for 'incorporation,' yet another rabbit hole. Such is, in an overall sense, what I have been attempting to get through. You are looking for a more definitive system that can/will apply to a very diverse population rather than a movable (within limits) balance point which reflects a general consensus at any given time. I think you're going to find much resistance to that for, as myself and many others (including those on 'our' side) have argued, such was not the original intention of the Founders in that, in order to 'favor' the individual while allowing for a functional society over time, a certain latitude was going to be required.

[MountainLion]

Just one more clarification, now that I have a little bit of time. On the question whether the 2A is a collective or individual right:

At this point, the problem isn't so much that you are 'oversimplifying.' It's that you are presenting things through a particular prism and it's a point of view which is not as broadly shared as you are making it out to be. We discussed Miller in Post #234 within the context of some of the problems. Simply because it was the ONLY case where SCOTUS deigned to 'construe' the 2nd Amendment, doesn't mean it was binding precedent, something which has been debated ad nauseum. ...

Therefore, it was far from 'settled' as a "collective right," something incongruously and 'uniquely' altered by Heller. In that sense, as kcbrown just pithily summarized...

I do not claim to know that the 2A is either. I'm pointing out that for over 50 years, there were lots of court decisions that denied individuals' 2A claims using the argument "the 2A is not an individual right, it is a collective right, look, SCOTUS said so in Miller". None of those decisions was overturned on "2A is individual" grounds, until Heller. So operationally, for a significant fraction of the US judiciary, the 2A was de-facto a collective right.

Now you could argue that those courts got it wrong. Matter-of-fact, you have argued that very well above. And I actually agree with most of your arguments. In particular I agree that Miller is one of the supreme court's most abused cases (the whole thing was a train wreck). That's nice, but irrelevant: those cases did go the other way, which demonstrates that operationally, the 2A was de-facto collective for at least half a century. No amount of getting upset about the placement of the semicolon will change that.

Underlying this is a deep observation, clad in two related jokes: "In law there are no facts, only what the parties have stipulated to." and "In law there is no right or wrong, only judgement or settlement."

Now, I'm sure Mr. Pants-on-fire will show up any moment, and claim that

• I'm lying there are no such cases.
• Those cases didn't actually mean collective.
• The judges who decided those cases using the collective interpretation were all just political hacks.

That's also very nice (actually, it's naughty, but never mind), and also completely irrelevant: Since Heller, no decision that I know of has used the collective right argument, so this is water under the bridge.

One thing I want to point out, over and over again: I was doing gun rights before Heller (and MacDonald or Nordyke). And it is difficult to explain what a game changer that decision was. Before, there was no backstop to how far gun control could go. Today there is as far as "keep" is concerned: guns can no longer be completely outlawed. Does that imply that the nirvana of "all the guns all the time" has happened? No, and there are many reasons for that, but that's not a topic of this thread.

[TrappedinCalifornia]

...None of those decisions was overturned on "2A is individual" grounds, until Heller. So operationally, for a significant fraction of the US judiciary, the 2A was de-facto a collective right.

As we say on the site regularly, simply because an higher court, or SCOTUS in particular, didn't take a case and overturn it doesn't mean they wholly agree with it or how it is deferred to by the lower courts. In fact, immediately post-Miller, a number of lower courts were attempting to 'fix the ambiguities' by adding even more (in some cases, intentionally attempting to avoid Miller while creating a similar 'collective right' paradigm, thus creating more red herrings. The reality is, while Heller has been criticized by some for even bringing in Miller, one of the things Heller overtly did was to clarify Miller; i.e., it was something that had been 'building' in the courts for decades and was considered ripe.

Now you could argue that those courts got it wrong. Matter-of-fact, you have argued that very well above. And I actually agree with most of your arguments. In particular I agree that Miller is one of the supreme court's most abused cases (the whole thing was a train wreck). That's nice, but irrelevant: those cases did go the other way, which demonstrates that operationally, the 2A was de-facto collective for at least half a century. No amount of getting upset about the placement of the semicolon will change that.

Yes. There was a period where 'collective rights' theory held sway; but, not necessarily based on 'good law.' Cases vs United States actually rejected the reasoning in Miller and made up its own. United States vs. Tot used a very selective and discriminatory 'historical analysis' to make their conclusion, virtually ignoring any/all evidence to the contrary. In short, the paradigm of which you speak wasn't necessarily motivated or founded in precedent so much as (behind-the-scenes) 'politics.' (That didn't make them 'hacks' so much as 'progressives' in a new way of viewing the Law and, dare I say, the Judiciary.)

However, as you know, the wheels of Justice move slowly and during that period, much research was being done, uncovering more details of the actual history of firearms in this country. Enough research emerged and was presented so as to, once again, gain key endorsements of the individual right theory. As we saw, by the early-80's (1982 Senate Subcommittee report [see above] and, as Librarian recently noted in another thread, 1983 specifically), legal scholars were beginning to truly push back consistent with the public's general understanding. In other words, the 'collective rights' view was held by many 'elitists,' but the great 'unwashed' considered it to be, primarily, an 'individual right.' Thus...

Underlying this is a deep observation, clad in two related jokes: "In law there are no facts, only what the parties have stipulated to." and "In law there is no right or wrong, only judgement or settlement."

One thing I want to point out, over and over again: I was doing gun rights before Heller (and MacDonald or Nordyke). And it is difficult to explain what a game changer that decision was. Before, there was no backstop to how far gun control could go. Today there is as far as "keep" is concerned: guns can no longer be completely outlawed. Does that imply that the nirvana of "all the guns all the time" has happened? No, and there are many reasons for that, but that's not a topic of this thread.

I think you misunderstand what I meant when I said...

...Therefore, it was far from 'settled' as a "collective right," something incongruously and 'uniquely' altered by Heller...

As I just noted, there existed a very real tension between the generally held understanding, particularly outside of legal elites, and the paradigm(s) being adhered to by lower court judges; be it 'collective right' or deference or laziness or other. (Remember, SCOTUS didn't take on a case directly dealing with the meaning of the 2nd Amendment between Miller and Heller.) With the increasing research and subsequent push back, while there may have been a certain de facto paradigm being held to within elements of the Judiciary, it was FAR from 'settled law' in terms of a definitive ruling by SCOTUS. Thus, despite the claims of adherents to 'collective right' theory, Heller and 'individual right' theory was not so much 'incongruous' in the grand scheme of things as it was 'inconsistent' with the paradigm they had been attempting to create as dominant.

Thus, Heller did not represent an 'unique' approach to firearms jurisprudence. As I said, it was more a reassertion of an older, more traditional view; one not only largely adhered to by the public-at-large, but by elements of the Judiciary all along, though 'proving it' took some time. Certainly, however, as you indicate, Heller (and with it, McDonald) are 'unique' in terms of the precedent that was created, providing, using your term, a 'backstop' which, to that point, didn't really exist.

Did Heller represent a paradigmatic shift? Yes and no. It wasn't so much 'new and different' as it was a reestablishment of an 'older and traditional' way of viewing the right. Did it halt (or largely halt) the 'new and different' paradigm of 'collective right' argument; something many scholars view as largely a 20th Century artifice? It depends on who you ask. Certainly the Left doesn't think so and isn't shy about vehemently denouncing 'individual right' theory as absurdly misguided. In that vein, a 5 - 4 split in Heller didn't help much; but, does provide insight into the differing and increasingly divergent approaches/allegiances/paradigms among the Justices which has become an unfortunate hallmark of SCOTUS over the last 30 - 40 years.

[kcbrown]

It's an intrinsic part of why...
Be careful. Such is another rabbit hole. I linked to this 2004 piece earlier in the thread... A Well Regulated Right: The Early American Origins of Gun Control with the caveat of not paying attention to the message, but noting the documentation. However, in the context you are discussing, you will find that it highlights the idea that you will be right back to interpretative arguments...

At this point, based on the discussion we've been having here, I'm convinced of two things.

Firstly, it appears that there's no avoiding rabbit holes. Every approach seems to have them. This may be because of the nature of what we're dealing with: something that is ultimately a matter of preferences, values, etc., which makes it inherently subjective and fundamentally uncertain, such that too much rigor gets you a mess. To be sure, some of the implications of any given approach are likely to be objective in nature (where the approach hits the real world were it to be adopted), but the degree of preference for those implications is most certainly subjective.

Secondly, there's no avoiding interpretative arguments. There are different ways to interpret things, different ways will have greater or lesser appeal to different people, and each way will come with its own set of implications. Some may prove more suitable (as measured by one's own preferences and values) than others depending on the situation. And it may even be that some might find an amalgam of approaches most appealing, with the specific amalgam depending on the specific person.

Now, set that against what Scalia laid out in Heller as the 'history and tradition' and recall what I've said regarding Carr's take on What Is History? In other words, a first-principle approach would simply be yet another exercise in identification of what YOU consider to be the 'basic elements' and a reconstruction as YOU see appropriate. In other words, you set a deductive premise and everything which follows, under the rules of deductive logic, must flow from that premise. Which brings you right back to the issue of establishing that YOUR premise is the 'correct' one. In that sense, it's a form of attempting to create an 'unassailable' box, which is akin to what you've been attempting all along and, thus, MountainLion's caution...

Believe me, that's not what I have in mind at all. It may be that starting with a foundation (that will be appealing to some, and would likely appeal to me) and applying logic to it will yield something that I find appealing. Seeing how this is a journey I'm on, I would certainly hope that I end up with something I find appealing. But "unassailable"? No, not at all. The end result is still going to be a matter of preference, it'll have shortcomings, and at this point I'm quite convinced that the only thing I can really do is explore the implications of various approaches, get input from others here on those implications (and things I've missed or failed to properly consider, etc.), and leave it to the reader to decide for himself whether or not he finds that appealing.

And I'm no longer looking for the sort of rigidity that you may be thinking of. For instance, what I have in mind with respect to, say, "traditionally lawful purposes", is something like "the 2nd Amendment means that society can regulate keep and bear as it sees fit as long as the traditionally lawful purposes are still achievable by the average person or the citizenry, as appropriate". Or something. This is still nebulous but what I'm after is something that preserves the "spirit" of the 2nd Amendment while recognizing that society may find some things objectionable and other things acceptable.

For example, as long as the citizenry retains the capability to preserve its own liberty through force of arms, it doesn't necessarily much matter (at least for that particular purpose) what society chooses to allow, regulate, or ban. And the same thing is true of the other traditionally lawful purposes, such as self-defense. It may be, too, that there are additional purposes that aren't "traditional" that one might also need to consider. It may even be that some of the "traditionally lawful purposes" are obsolete, though my perception of "traditionally lawful purposes" is that they are each fundamental to our existence in some way, and thus remain relevant.

In essence, what I'd be attempting to address with something like the above is how to give the 2nd Amendment actual effect. If the overall interpretive and operative framework is so amorphous as to allow any outcome, including extinguishment of the traditionally lawful purposes, then of what possible use is the 2nd Amendment except perhaps as a reminder of what might be? How would that end up being any different than if the 2nd Amendment said "we the founders of the country would prefer that the people be able to keep and bear arms, but feel free to restrict or allow whatever you want"? Such would render the 2nd Amendment itself effectless. it may as well simply not be there at all if that's the situation.

And in light of the "movable (within limits) balance point" you allude to below, it seems like the above might actually prove to be a reasonable fit.

Such seems like it should be consistent with Scalia's claim that "the enshrinement of constitutional rights necessarily takes certain policy choices off the table". Certain policy choices, but by no means all, and by no means none, either.

In a very real sense, you are attempting to take Scalia's approach, but make it an absolute so as to divorce the result from any or most 'interpretation.'

I certainly hope not. Maybe the above will clarify what I'm thinking about. Interpretation is necessary at least to the degree that one needs to figure out what "traditionally lawful purposes" are, and perhaps even for figuring out how the founding generation thought about various things related to that and to whatever is being decided upon so that one can at least consider that when deciding how to approach a given problem.

Remember, as I have continuously cautioned, you're talking about a national level definitive. In a sense, what you desire is an obviation of the need for 'incorporation,'

I thought Thomas dealt rather nicely with the problem of "incorporation" in his McDonald v Chicago concurrence. But it's been a while since I've read that, and maybe there are holes in it.

yet another rabbit hole. Such is, in an overall sense, what I have been attempting to get through. You are looking for a more definitive system

Definitive? No. Not anymore. Believe me, I've learned my lesson on that! No, what I'd like to do is explore various approaches and see what their implications are, at least for myself (because I'd like to arrive at something that, while it can't be perfect, is at least a good fit for my overall belief system and is at least reasonably appealing to at least some of us here who are at least somewhat like-minded).

Nothing is going to be definitive. Nothing. The nature of what we're talking about simply doesn't allow for that, near as I can tell. That above all is what this discussion has taught me. There will be rabbit holes. There will be interpretative arguments. There will likely be no final resolution to either in part because what we're engaged in is a continuous process, one of discovery and thought that ultimately shapes our actions. Just like what the founders went through, frankly.

that can/will apply to a very diverse population rather than a movable (within limits) balance point which reflects a general consensus at any given time.

That is precisely what I'm now after. A movable balance point within limits. Something defines those limits. My thought is that maybe "traditionally lawful purposes" is a start towards discovering that something.

I think you're going to find much resistance to that for, as myself and many others (including those on 'our' side) have argued, such was not the original intention of the Founders in that, in order to 'favor' the individual while allowing for a functional society over time, a certain latitude was going to be required.

I completely agree. A certain latitude. A latitude with limits.

[MountainLion]

As we say on the site regularly, simply because an higher court, or SCOTUS in particular, didn't take a case and overturn it doesn't mean they wholly agree with it or how it is deferred to by the lower courts. In fact, immediately post-Miller, a number of lower courts were attempting to 'fix the ambiguities' by adding even more (in some cases, intentionally attempting to avoid Miller while creating a similar 'collective right' paradigm, thus creating more red herrings. ...

Absolutely agree, absence of cert does not imply that the court "approves". But in practice, absence of cert for 50+ years in a row simply means that the collective rights interpretation was the one operationally used. Whether that's right or wrong is an interesting intellectual game. Before Heller, that game was worth playing, since arguments created in that game are part of what slowly (like a steady drip) wore down the dominant paradigm (like a stone). Today, after Heller, this is of historical interest. We may have to unearth it in the future, if Heller is overturned, but until then it's more sensible to focus our efforts to see that we can incrementally and slowly improve gun rights in places like CA and NY.

The reality is, while Heller has been criticized by some for even bringing in Miller, one of the things Heller overtly did was to clarify Miller; ...

Scalia had to, whether he liked it or not. There was clearly a 5:4 majority for the net result "DC has gone too far with the handgun ban", but now an intellectual foundation had to be created. Part of that was the need to stop the argument "the 2A doesn't even apply here". So Scalia had to get rid of the bathwater, but save the baby: comity and stare decisis. He could have just stood on a soap box and declared "Miller is a piece of doo-doo, the defendant was dead or in jail or both, the justices back then were drunkards and wife-beaters, let's just flush that turd". That style would have ... performed the flight of the lead balloon. So instead he spent a dozen pages arguing that Miller really means what he wanted to hear, and he did that masterfully. Problem solved. And in doing so he did exactly what you keep arguing: Heller stands in a long history of individual rights argument. This is goodness, because it makes it harder (albeit not impossible) to turn the switch in the other way and overturn Heller again.

And to clarify again: I'm, deliberately and intentionally, agnostic as to what the 2A really means. Trying to explain that to me will ultimately get me to give style points (I'll hold up a card that says "9.8"), but won't change things. I think right now what the world needs is not endless arguing about constitutional fundamentals, but tactical work.

[curtisfong]

I think right now what the world needs is not endless arguing about constitutional fundamentals, but tactical work.

I agree. If only you could get an organization like, say, the ACLU to care about the 2A.

But you cannot.

Or you could convince local liberal politicians they do not have to be anti gun to get elected.

But you cannot.

The die has been cast. As long as gun rights are a part of the "conservative" platform, "liberals" will oppose it. Not because it makes sense ideologically (let alone objectively, from a public safety standpoint), but because from a game theory perspective they have no choice. As I've said before, if Party A claims the sun sets in the west, Party B must claim that is fake news and the sun sets in the east. You can't change game theory optimal behavior without changing the game itself.

[advocatusdiaboli]

All the rights in the Bill of Rights are In-effing-vidual rights! Where the Eff do any of you think you get to carve out one of the numerous rights that are individual and claim it, alone, is a collective right. The Bill of Rights, by definition, was self-described as INDIVIDUAL RIGHTS. READ THE GOD_DAMN CONSTI-EFFING-TUTION.

[curtisfong]

All the rights in the Bill of Rights are In-effing-vidual rights! Where the Eff do any of you think you get to carve out one of the numerous rights that are individual and claim it, alone, is a collective right. The Bill of Rights, by definition, was self-described as INDIVIDUAL RIGHTS. READ THE GOD_DAMN CONSTI-EFFING-TUTION.

The entire point of this discussion is that words have no inherent meaning; anyone can interpret anything they want anyway they want. If they disagree with you, it is your fault you didn't make a convincing enough argument that your interpretation is correct. Furthermore, you were mistaken in assuming you had any sole claim as arbiter of meaning in the first place. Finally, if a court interprets words in a way you do not like, you have no grounds to complain.

[MountainLion]

All the rights in the Bill of Rights are In-effing-vidual rights!

Excellent. You just abolished states' rights. Complete takeover by the federal government coming any moment now.

The entire point of this discussion is that words have no inherent meaning; anyone can interpret anything they want anyway they want.

Another pants-on-fire claim. The candidate gets 0 points.

Seriously: With friends like this, gun rights are hosed.

[curtisfong]

Excellent. You just abolished states' rights.

States have plenty of rights. They just can't pass laws that infringe on individual, enumerated, inalienable rights incorporated against the states. Doing so is absolutely *not* a right, and certainly not one that any state has. I am glad states do not that have right.

Now you're the one making insane pants on fire claims.

Unless you're disappointed that states do not have the right to pass laws that infringe on, and that there are constraints on those hostile to your civil rights. If so, you are certainly no friend to anyone.

[TrappedinCalifornia]

States have plenty of rights. They just can't pass laws that infringe on individual, enumerated, inalienable rights incorporated against the states. Doing so is absolutely *not* a right, and certainly not one that any state has. I am glad states do not that have right.

Now you're the one making insane pants on fire claims.

Unless you're disappointed that states do not have the right to pass laws that infringe on, and that there are constraints on those hostile to your civil rights. If so, you are certainly no friend to anyone.

Note the part I placed in bold/italic.

You do realize that incorporation is precisely the result of State rights... correct?

The Incorporation Doctrine...

The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Incorporation applies both substantively and procedurally. Prior to the doctrine's (and the Fourteenth Amendment's) existence, the Bill of Rights applied only to the Federal Government and to federal court cases. States and state courts could choose to adopt similar laws, but were under no obligation to do so...

Thus, Constitutionally, for nearly the first 100 years of this country, the Bill of Rights was not considered to be directly applicable to the States insofar as restricting their ability to pass laws which 'infringed' against civil rights; similar to how we now talk about how the 1st Amendment doesn't apply to private corporations. Even then, it took until the 1920's for the process of "incorporation" to truly begin and wasn't until... wait for it... 2010 in McDonald that the 2nd Amendment was incorporated against the States.

As directly relevant to this thread...

...Incorporation increased the Supreme Court’s power to define rights, and changed the meaning of the Bill of Rights from a series of limits on government power to a set of rights belonging to the individual and guaranteed by the federal government. With incorporation, the Supreme Court became busier and more influential...

The individual liberty safeguards in the Bill of Rights go beyond a list of rights. Individuals have natural rights that are not listed in the Bill of Rights. The Ninth and Tenth Amendments make clear that rights and powers not listed remain with the people. One consequence of incorporation has been for the Court to seemingly place more value on those individual rights which are enumerated in the Bill of Rights than those natural rights which are not listed. The Founders had worried that future generations might think that listing some rights would cause people to think that the others were less important. This worry was one reason the Federalists had opposed adding a Bill of Rights to the Constitution. The Ninth Amendment was among the amendments added in 1791 for that reason...

In other words, there has always been a bit of tension over the issue. It's where the cases come from a certain member points to as proof positive (ahem) that 'concealed carry' can be legislated against from Heller. It's precisely why MountainLion has said that Heller now provides a 'backstop' and it was incorporated to the States in McDonald.