'This Right is Not Allowed by Governments that are Afraid of the People' - 14A

[hoffmang]

Clayton Cramer, Nicholas Johnson, and George Mocsary have just published a very interesting analysis of the original public meaning of the Second Amendment a the time of the adoption of the 14th Amendment.

I highly suggest those interested in what 2A we're likely to get incorporated reading it:

http://ssrn.com/abstract=1491365

For those who haven't used SSRN before, click the download link and then click on of the location icons to start downloading the PDF.

-Gene

[wildhawker]

Timing is everything. Thanks for the link, Gene.

[artherd]

Fascinating read, and I'm only 1/4th through it.

[Mulay El Raisuli]

Its coming in 'damaged' for me. IE, I can't open it. Is there another source for it?

The Raisuli

[Casual_Shooter]

I got "Service Unavailable" at first. I had to click the New York location a few times but it worked.

[Casual_Shooter]

Its coming in 'damaged' for me. IE, I can't open it. Is there another source for it?

The Raisuli

I could email it to you if you like. It's only 200kb.

Edit... trying to upload it to this site... Let's see if it works.

[Sniper3142]

An excellent read indeed.

Thank you Hoffmang and Casual Shooter. This is a very interesting document that should be read by all.

[nicki]

MacDonald case.

The "Heller" ruling blew me away, in all honesty I was expecting a very narrow ruling.

I thought the "MacDonald case" would probably be a very narrow ruling, but something tells me that isn't going to happen.

Nicki

[Mulay El Raisuli]

I could email it to you if you like. It's only 200kb.

Edit... trying to upload it to this site... Let's see if it works.

Thanks to Wilhawker, I have a working copy now. Your link seems to work well also, however.

I'm with Niki. BIG things are going to come with McDonald.

But, as looked through this, I was reminded again of footnote 8 from Heller; restrictions against concealed carry are going to be allowable. The paper is just chock full or Decisions that label the Right as an individual one, but that also state that laws against concealed carry are perfectly permissible under Constitutional (either state or federal) law. As I see it then, LOC is going to be the Minimal Constitutional Standard.

Which I think is just great.

The Raisuli

[7x57]

While this looks like an excellent paper, having just got to page 2 I already question the methodology (though I applaud the authors' clarity of thought in stating their assumptions so well at the outset). The issue I question is itself subtle enough that I was not consciously aware of it before, so I think it is extremely interesting and well worth arguing back and forth. So I shall argue against their precise methodology and see where that leads.

I post this before reading further for a reason--I might well prefer their results to those of the method I am going to advocate. I can always revisit the argument after finishing the paper, but I cannot again think it through tabula rasa.

While the authors are admirably clear, I will attempt to re-state the paper's position as follows.

1. They accept the doctrine of Original Public Meaning. In particular, this means that the 2A binds the federal government according to the public meaning of the 2A when ratified in 1791.

2. The 14th Amendment was understood to Incorporate the 2A against the states when ratified in 1866, and therefore does so today.

3. The public understanding of the 2A in 1866 was not precisely the same as in 1791 (but I choose not to read the ways in which they claim it has changed yet).

This brings us to the issue I propose debating: which public meaning does the 14A incorporate against the states? In other words, does "Original" mean the context of the ratification of the 2A, or of the 14A? This is a very good question, as we have two amendments separated in time with different contexts. It brings into sharp relief that the 14A has hermeneutical problems unique to itself. Ordinary "civil rights" amendments state the rights to be protected directly. They have only one natural context. The 14A states them indirectly, by reference to preexisting amendments. This is subtly, but profoundly, different, and the methodology of Original Public Meaning as usually stated is incomplete in the presence of this indirection. I commend the authors for making this so clear.

The paper assumes that the governing context of the 2A as applied against the states is that of 1866, since it is the 14th amendment which applies the 2A against the states (N.B.: the 14A was ratified in 1868--I suspect they chose 1866 because that was the date of the Civil Rights act whose Constitutionality the 14A was to protect--I accept their date without taking a position on that point). I wish to argue the contrary position that while it is the context of 1866(8) which is to be used in answering the question of what the 14A applies against the states, once it is understood that the enumerated rights such as the 2A are to be Incorporated then it is the context of 1791 which is to be used in evaluating the content of those rights.

The authors again summarize with admirable precision:

The public meaning of 1866 is a fixed point of reference that generates the interesting possibility that originalism may give the Second Amendment one meaning when applied to the federal government, and a different meaning when applied to the states, through the Fourteenth Amendment.

That is precisely the thesis I wish to discuss--I am taking the position that whatever the meaning the 2A has in binding the feds is the meaning it has in binding the states (IOW I reject the possibility in bold while they accept it). My hermeneutical stand is that one needs only to examine one context for purposes of determining what precisely is forbidden the states and the federal government alike. The methodology of the paper requires a dual context. In effect, it applies the context of the 14A to the text of the 2A. That is precisely the heart of the problem: it still severs text from context. It is less ad hoc and less arbitrary than the Living Constitution hermeneutic, but it still produces a Frankenstein monster. By contrast I evaluate every text it it's own natural context.

What does the dual context hermeneutic imply if really believed? Suppose the 14A was ratified in 1960 for purposes of ending segregation instead of in 1868 (for purposes, one might say, of preventing it in the first place). The dominant understanding of the 2A in the academy in 1960 was Collective Rights (if I have chosen a poor example date, simply substitute what you like for 1960--the point is not about 1960 but about the implications of the methodology). The dual contextual theory would imply that this 14A incorporated an understanding of the 2A which is utterly fallacious and historically mad. It says that the 14A freezes any errors and misunderstandings of 1960 forever in so far as we apply the 2A to the states. In fact, what it really amounts to is that the 14A actually does NOT and CANNOT incorporate the 2A, but rather a hybrid monster consisting of the text of 1791 evaluated in the context of 1960.

Is this a consistent methodology? Logically speaking, I believe it is. If we can evaluate the text of the 2A in the context of 1791, we can do so in the context of 1866. Our system will not melt into a mass of logical contradictions and undecidable interpretations. But I think the larger result is irrational; it says that mistakes in understanding can be canonized forever, no matter how insane they can be shown to be. It achieves consistency by specifying precisely the alien context to be sewn onto the text of 1791, but that precision does not make it less unwise.

I also suspect it is alien to the methodology of the ratifiers of the 14A. If asked directly what 2A they believed they were extending to the newly freed slaves, I believe they would have said it was the same one codified in 1791. I believe they would have to, by the foundational logic of Preexisting Right and Social Contract. The claim of the founders is precisely that the legal right is an operational protecting of a pre-existing moral right. One cannot argue that the substance of the moral right was different in 1866 than it was in 1791--that way lies a philosophy (thankfully) still in their future.

Even worse (for the authors) is the fact that the BoR codifies a particular notion of citizenship. Is the very meaning of citizenship is a matter of Living Context? Is the citizenship extended to the freed slaves in section one if the 14A of a different nature than that extended to the citizens of the thirteen colonies in 1787? I think that is incoherent, and very probably dangerous. Given a different history, I suspect this methodology could possibly be used to change the effective meaning of citizenship for all citizens just as the Living Constitution hermeneutic already has.

The authors insist that this dual-context hermeneutic is not smuggling the Living Constitution in by the back door because they do not apply the continuous process usually implied by "LC". They correctly note that 1866 is an unambiguous fixed point, and their results are fixed and unchanging. They are correct that their results differ in that respect. However, it is not so unlike the LC hermeneutic as they claim--on the contrary, it is explicitly dependent on it. In fact, what they have done is to claim that while it is invalid to continuously evolve the operational meaning of a text, taking one step of the LC hermeneutic is not only acceptable but necessary. The authors' implicitly accept the following thesis:

While not every "Living" meaning is valid, the meaning incorporated against the states is that obtained by a Living Constitutional analysis performed in 1866.

I think this is unacceptable.

One might ask why someone (I say "someone" because I certainly cannot say anything about the motives of the authors themselves) might prefer this hermeneutic--Gene certainly implies that the dual-context hermeneutic is likely to be persuasive on the court. He would know more about that than I. But we can consider why it might be persuasive.

The answer might well have nothing to do with the 2A. Whatever hermeneutic is to be used in understanding the 14A must be applied uniformly, and that means that the entire BoR is at stake in so far as it's application against the states is concerned. If the Incorporated 2A right is to be evaluated against the context of 1666, then so are the Incorporated rights codified in the 1A and all the rest. Perhaps this view might gain traction with a view to future arguments about another right of greater interest. Given that it appears that there is liberal support for resurrecting the P&I clause from the dead in order to support modern agendas, it is not unreasonable to suggest that there are many who will think strategically in this way (no matter what their ideological preference). It would be enlightening to apply the methodology of this paper to the full array of hot-button civil rights issues of today and see if any of the results are more congruent with the preconceived prejudices of some significant group than the methodology I suggested.

OTOH, scholars have a notable tendency to wish to save a position they've devoted their life too. Because this paper accepts LC as a discrete step, if not a continuous process, it might be much more soothing to the somewhat damaged pride of those who prefer LC in toto.

In any event, what is discussed in the first two pages of this paper potentially affects nearly everything we regard as a protected civil right as far as the states are concerned. To misuse Suzanna Hupp's famous line, "the Fourteenth Amendment ain't just about guns." That's why it's important, and why I wanted to question the thesis before even reading the rest of the paper.

Why yes, that IS a great big target I just painted on my chest. Feel free to tear it apart line by line. I posted it precisely so that could be done.

7x57

[wash]

This sounds promising and not only for guns.

I can see a lot of knife laws changing as well.

[dantodd]

But, as looked through this, I was reminded again of footnote 8 from Heller; restrictions against concealed carry are going to be allowable. The paper is just chock full or Decisions that label the Right as an individual one, but that also state that laws against concealed carry are perfectly permissible under Constitutional (either state or federal) law. As I see it then, LOC is going to be the Minimal Constitutional Standard.

LOC is definitely the minimum we would get from full incorporation. However; along with incorporation comes the whole 14th amendment, including "equal protection." If CCWs are available they will need to be available to everyone without undue restrictions. (i.e. you can't require 2,000 hours of training and $2,000 annual fees)

[wash]

7x57, If you read further, you'll see that by 1866 the thought was that RKBA was an individual right entirely divorced from the militia. That individual right was what they wanted to incorporate against the states because "militias" were disarming freed men.

If you go back to the English common law, I think they saw a fundamental right to self defense and RKBA. If this was understood before the constitution was written and in 1866, is there any chance that the second amendment did not mean that in 1791?

I would say no, the second amendment was always meant to codify an individual right that no level of government can infringe.

[7x57]

Postscript: in honor of co-author Clayton Cramer, who is a software engineer, I am going to make a point that is not merely geeky, as the previous post was, but cross-disciplinarily geeky.

The issue the paper raises is very similar to the computer-language issue of scope. (With a view to writing this postscript I even used some similar language in my critique.) The analogous computer issue revolves around what entity a symbol in the text of a program (such as 'x') refers to. To determine this, one needs to evaluate the text against a particular context, just as one must do to read any human-language text.

When the entity is defined in the text itself, this is fairly unambiguous. This would be analogous to the 14th amendment re-iterating the rights it proposes to incorporate. But it is ambiguous when the symbol ("x") refers to an object defined in another context, similar to how the 14A actually references the rights it incorporates. In both cases, the ambiguity must be resolved in order to determine meaning.

There are two basic answers to how a language should determine the context: dynamic scoping and static scoping. In dynamic scoping, "x" refers to the context in which the code was called. It is different at every calling point, and so the meaning of x is (potentially) different on every call.

By contrast, in lexical scoping, "x" refers to the lexically enclosing context at the point of definition. It has the same binding on every call. If that's unfamiliar, just understand that lexical scoping always uses the single context of the point of definition (of which there can only be one). Dynamic scoping uses the many scopes of the point of calling, of which there are as many as the number of calls in the text of the program.

In this analogy, the authors have proposed that one amendment's references to other parts of the constitution be resolved by the dynamic scope of the referencing text. I have proposed instead that the references be resolved by the static scope of the referenced text.

As a playful poke that Mr. Cramer at least would understand, I note that in practice dynamic scoping is always a mistake. It's been done many times (starting with the second oldest language lisp, I think, as I believe Fortran did not allow nested scopes in the first place), because it's easy to implement in an interpreted language. And every single time it becomes a burden when the language is used for large programs. A great many languages that started with dynamic scoping switch to static scoping (introduced in the also ancient Algol) because of this--lisp and perl are the first two that come to mind. This switch is painful because it breaks old code or uglifies new code, but it is often done anyway. I am not, however, aware of any language which switched from static scope to dynamic scope.

So my playful question to Mr. Cramer is why he wishes to import this failed scoping rule into the Constitution when the problem is as old as lisp and the better solution is as old as Algol.

That has been today's instalment of "strange analogies that only six people in the world understand or care about." We now return you to your regularly scheduled, singly-geeky legal discussion.

7x57

[wash]

Another way to say it is that the 14'th amendment was always intended to incorporate the second amendment as written. At the time they thought that meant an individual right to keep and bear arms.

So the argument in the article isn't really about incorporation but rather scrutiny.

If they were afraid of the consequences of incorporating the second amendment as they understood it in 1866 (as an individual right), they wouldn't have ratified the fourteenth.

The context in 1791 was right after fighting a revolution, thus they talked about militias and overthrowing tyrants.

The context in 1866 was right after fighting a civil war and trying to ensure the rights of freed men, thus they talked about individual rights.

They are both important and they are not mutually exclusive, they were just the issue of the day.