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

[curtisfong]

On LC vs OI

First, an offtopic preface of sorts:

7x57, as usual, you have a lot to say, but most of us really can only grasp a portion of the whole thing. Some will complain that it's your fault; that you fail to express yourself in a way that is easily understandable. Others (myself included, for the most part) would more easily attribute that failure to the readers' (myself included) laziness.

That said, I do think you need to step back sometimes and break down your thoughts into smaller, digestible chunks. Clear writing is very difficult, especially when you are trying to convey difficult concepts. Richard Feynman, in particular, was fond of saying that if you can't explain something to a 3rd grader, you don't really understand the material.

Now, on to the meat of OI vs LC, which, ultimately, is what your post is about (i think). Namely, the attempt by the authors of the paper to have it both ways. I agree. But IMO it is impossible to discuss any *legal* interpretation of the constitution w/o some LC component, and thus will always run into the (inconsistent, illogical, unstable) tension you describe. Why? Our system of government is built on a social contract, which describes two things

1) there is a set of inaliable (axiomatic) rights. These are the *bare minimum* of "things we can all agree on".

2) there is a means by which laws can be passed/changed such that we find compromise on the things we don't necessarily agree upon.

Why do we need the latter? Because the former isn't enough for a (sufficiently) large and diverse population to stay "properly governed". Implicit in every social contract is the idea that there will always be rules that some participants disagree with, but that they will (necessarily) agree to abide by assuming they agree (uniformly) on the method by which those rules are both formed and enforced.

However, that *method* requires the axioms of 1), or the social contract breaks down, and inevitibly becomes corrupted by the forces of authoritariansm/ogilarchy/kleptocracy, and your representative form of government collapses.

The duality occurs when people confuse the (original intent) axiomatic universal rules with the meta-rules for the (living) formation/enforcement of non-axiomatic rules.

Hell, the duality is right there in the history of the Bill of Rights. They are axiomatic rules added as amendments to the meta-rules.

Now, I have painted my own target on my own chest, because I haven't really answered your question (assuming you actually asked one).

[yellowfin]

If you go back to the English common law, I think they saw a fundamental right to self defense and RKBA.

There's a bad problem with bringing the English into it, wash, dating back to the 1300s. The English were allowed and in fact required to have bows in their homes ready for defense of self and more importantly of state. It was acknowledged that self defense was good and the advantages of a well practiced citizenry in use of arms served the country well. This is undoubtedly the origin of the first clause of the 2nd Amendment. There were two trapdoors in it, however, which are poisonous to their freedom and eventually were used to bring it down: the law applied only to Protestants and chisel points were strictly forbidden from private ownership and possession punishable by death. These three problems, class distinction, difference of weapons of war and weapons of civil use, and possession as a crime, are the three roots of evil in our present situation in California, New York, and elsewhere and present a threat to the entirety of the 2nd Amendment as first presented by the Sullivan Law then the NFA. Even worse you can see the case of Massachusetts having had a RKBA clause but with exception/loophole clauses in it allowing for easy sabotage justified by them to the point of taking a right and rendering it meaningless, as they have.

To address the first, the matter of right to arms only able to be claimed by Protestants established precedent of acceptable prejudice of law rather than equal protection and application. Of course medieval Europe and England had no qualms with a complex tiered system of social and legal classes, that was an accepted norm that few questioned, but as a matter of disparate treatment in civil law going out of their way to put it on paper is quite a step. Having it as a starting point naturally allows for whatever arbitrary and unfair distinctions and stipulations they can fashion so long as they could concoct a reason for it--sounds a lot like good cause and permits, rational basis and even intermediate scrutiny, doesn't it?

Secondly the matter of chisel points. What is a chisel point? Remembering we're talking about archery here, each arrow has a head which adapts it to its purpose. Most common target practice would have a rounded, semi blunt point, so nothing objectionable about that. Then you have broadheads, or whatever they'd call them back then, for taking of game, having a sharp point and cutting edges. This would also probably be what they'd use for self defense, and when they could, feeding their families, albeit by permission as the nobles owned the land. But now as we get to the other purpose, the purposes of war, we arrive at the chisel point. This was an arrowhead which was made to pierce armor, undoubtedly mostly intended for that of the common foot soldier who might have some thick and tough leather shielding and maybe chain mail but it was good for stuff up to and including the plate armor worn by a knight. That's perfectly fine when you're fighting for merry ole England and putting down the French or whoever they don't like at the time, but in time of peace that's a big no no because their knights were a noble class and also the enforcers of the crown's policy. The lower class citizenry could effectively resist the nobles if they could take down knights--think shoulder launched missiles like the Stinger against F16's and B52's. This wasn't something the king would like to allow, so possession and ownership of chisel points outside time and place of war was a hanging offense. A perhaps more draconian version but nonetheless the exact same concept as the NFA for the same reasons, and then later the CGA's "sporting purposes" distinction.

Thirdly, as a subset of the chisel point prohibition, the establishment of possession as a crime in and of itself. A rather nasty violation of the notion of rights, privacy, property, and due process, don't you think? It makes you wonder why prior restraint is acknowledged as unlawful yet is conveniently ignored when it comes to arms. It probably originates in custom at that point, then of course we have the Sullivan Law as its modern reincarnation.

So no, wash, we DO NOT want to copy the English on this matter AT ALL in a few aspects. I for one am really, REALLY leery of having the 2nd Amendment post 1866 being read in a Civil War context of citizens being stripped of the right to revolution and resistance of government oppression by removal of parity of force. That crosses back to another thread, of course, of where the line exists on 2nd Amendment limitation, and it needs to be said as often as necessary till we can get the point across: like self defense against criminals, the right to preservation against larger threats exists not just in the right to have the means to have a small token opposition, but that to be able to prevail.

[7x57]

Some will complain that it's your fault; that you fail to express yourself in a way that is easily understandable.

Sometimes that is indisputably true. As explanation, if not defense, arguments I make here are arguments I make to myself and to others--and what I post is what I believe to be the strongest case I can make to myself. The really useful critiques are when someone can successfully attack the position precisely as I hold it. If I simplify too much, then it is too easy for me to dismiss the critique as not applying precisely to my real position.

That could simply be understood as me saying that I am often unable to simplify without losing precision, at least in my own mind. I accept that critique of a personal limitation.

That said, I do think you need to step back sometimes and break down your thoughts into smaller, digestible chunks.

I'm not sure how one would actually break down my criticisms. I essentially make one--that the paper's method evaluates texts in alien contexts. The rest is an attempt to explain how that happens and what it means. I suspect if I'd simply posted "the paper evaluates texts in alien contexts" no one would have understood the point and I'd have had to try to explain in the same way.

How would you make the argument in a more cleanly partitioned manner?

Clear writing is very difficult, especially when you are trying to convey difficult concepts. Richard Feynman, in particular, was fond of saying that if you can't explain something to a 3rd grader, you don't really understand the material.

Richard Feynman >> 7x57



7x57 is absolutely incapable of the transparent precision of QED (or The Character of Physical Law among others). That book is probably near the absolute limit of simplification without inaccuracy. There have been quite a few physicists as great as or greater than Feynman. There may never have been another of his rank capable of that kind of writing, just as there was no other philosopher of Plato's rank capable of his writing. Consider the quite opaque popularizations done by Einstein or Hawking. You can't really understand them without actually knowing the supposedly more complicated physics they attempt to simplify--but you can profitably improve your practical understanding of the full implications of the mathematical theory of relativistic quantum fields by reading QED. That's...amazing.

I can't do physics at their level, you will not be surprised to know, but I fear I write closer to their level. Not Feynman's.

Anyway--thanks for a serious reply. I have to try to fix a car today so I can hunt tomorrow, so if I don't end up replying soon it isn't because I didn't think your post worth replying to but because on the contrary it deserves some real thought.

ETA: a very picky quibble. It wasn't a "3rd grader," it was a Freshman. A Freshman at Caltech (who is a different creature than a Freshman most places). Feynman was speaking precisely, and he did not really believe he could explain field theory and all the rest of physics to a 3rd grader (though he'd be willing to try, just as I've explained a fair amount of astrophysics to my kindergartener--my favorite Feynman story is turning to a child as bored as he was and starting a conversation about infinity by saying "Did you know there are more numbers than there are numbers?"). He did, however, believe he could explain it to undergraduates and did so habitually (he met with them in the basement of one of the undergrad houses where, I think, professors and grad students weren't allowed because they'd intimidate the undergrads he wanted to get really thinking). And once when asked to explain spin to the undergrads he finally said he couldn't do it, which meant they (probably meaning the whole field--Feynman didn't have the personally to suggest anyone knew anything "important" he didn't) didn't really understand it.

Feynman died a couple of years before I got to Caltech, which is something I very much regret.

7x57

[curtisfong]

How would you make the argument in a more cleanly partitioned manner?

I wish I knew. I suffer from a very similar affliction. I try to express concepts I don't think I fully understand and when I do actually understand the concepts, I'm almost invariably bad at simplifying it in a way that makes sense.

Richard Feynman >> 7x57

I already know I don't have his intellect, and never will. I would settle for .00001% of his ability to distill and convey information.

[7x57]

You know, one thing I can do quickly is actually try curtisfong's suggestion. So:

The problem with this paper is it evaluates texts in alien contexts unknown to their authors.

All done. If that helps, argue away. Seriously--I'll keep checking in, because auto mechanics is boring without something for the mind to chew on. If it does not help, see my previous tome for turgid elaboration.

7x57

[wash]

So no, wash, we DO NOT want to copy the English on this matter AT ALL in a few aspects. I for one am really, REALLY leery of having the 2nd Amendment post 1866 being read in a Civil War context of citizens being stripped of the right to revolution and resistance of government oppression by removal of parity of force. That crosses back to another thread, of course, of where the line exists on 2nd Amendment limitation, and it needs to be said as often as necessary till we can get the point across: like self defense against criminals, the right to preservation against larger threats exists not just in the right to have the means to have a small token opposition, but that to be able to prevail.

I'm not saying copy English common law. I'm saying that's the historical context of 1791.

In 1776, the founding fathers said all men are created equal. That eliminates the classes. If the bill of right gave one man the right to keep and bear arms, it gave it to all of us.

The U.S. failed to appoint a king or outlaw chisel point arrows so I don't see a conflict.

[Legasat]

It is a fascinating read to a legal noob like me.

Thanks for the link!

[curtisfong]

The problem with this paper is it evaluates texts in alien contexts unknown to their authors

Perfectly stated. I'll give it a shot. The fundamental problem is that all arguments for a LC interpretation rely on the premise that every single portion of the constitution is sensitive to contemporary context, that would be alien to not only courts of the past, but the framers (and signatories) themselves. Therefore, by necessity, we must have a living constitution to help frame the original intent in contemporary context.

I propose to cut the gordian knot by submitting that it is not up to the judicial branch to entirely recast and reinterpret the constitution for every generation or contemporary circumstance but rather to intentionally put the framers and past court decisions in alien contexts, and synthesizing (as best they can) what their interpretation would be given the contraints of OI.

To that end, IMO the paper has it right: I don't think there is anything fundamentally wrong with evaluating texts in alien contexts, as long as there is a strict understanding that OI is incorruptible. Furthermore, there must be an understanding that the text of the constitution itself may not fully express OI properly, even in its proper context, given the politics of the time giving rise to unclear wording just to get people on board.

That last bit is a far stickier issue than interpreting text in an alien context...

[7x57]

I'm going to get some tools (when do you stop buying tools? when you're dead). In the mean time, to ensure I'm playing fair, I offer what I believe is the strongest critique of my position (and probably the motivation for theirs):

My position can lead to people ratifying a law whose consequences they do not understand or intend.

There is much more to be said about that, but but let's leave it at that and the idea that the authors are probably motivated by their dislike of that effect.

In fact I believe it may be true that when a text references another separated in time one *must* give up either the congruence between Original Intent and Original Meaning (normally we assume intelligent people know the meaning of a text in a context they share with the author) or the idea that the understanding *at ratification* is the controlling understanding.

I have to admit that I am even more interested in the light that this paper sheds on the whole concept of Original Meaning than I am in the 2A implications (important as they are). This clarifies issues of interpreting texts generally, of interest for example to protestant theologians (possibly muslim theologians, but I can't say how their exegetical methods work).

7x57

[curtisfong]

My position can lead to people ratifying a law whose consequences they do not understand or intend.

I'd ask if the law we are newly ratifying is changing the axioms, or simply one of the fungible rules.

If one of the fungible rules, certainly one of the features of any rational legal system is that unintended consequences of laws should be fixable. Alien
consequences (the "not understand" category) are only fixable if we agree we can frame OI in an alien context. I'm not sure if that is your point.

the authors are probably motivated by their dislike of that effect.

I would say that dislike should be almost universal. Hopefully.

the congruence between Original Intent and Original Meaning

Before commenting, I'd like you to explain your terms

I could make an educated guess, but I would rather not.

the understanding *at ratification* is the controlling understanding.

Which only helps us with "unintended" consequences, unfortunately. Not the "not understand" class of consequences.

This clarifies issues of interpreting texts generally, of interest for example to protestant theologians

While theology is somewhat interesting to me (from a historical/literary/sociological perspective), I generally have very little interest in interpreting non-functional law in either contemporary or alien contexts. I prefer to assume they only have meaning in their own native, narrow context.

[wash]

Let me try to distill this:

Origional intenet means what they meant when they wrote the BOR.

We try to determine origional intent by the plain writing along with letters, speeches and news accounts of the day.

"living constitution" means what people will try and twist the meaning to based on their agenda today.

7x57 is saying that looking at the second amendment through 1866 eyes, you are 1/2 way accepting a "living constitution" because the letters, speeches and news accounts of 1866 are different from 1791.

The way I see it is that in 1866 they saw the second amendment as more expansive than in 1791, so there's nothing about the 1866 context that should limit the scope of the incorporated second amendment to anything less than the most expansive views in 1791.

Then if you look back at 1791, you know why they are talking about militias, they just got done fighting a revolution and they don't want their fight to become meaningless by allowing the new government to degenerate to something just as bad as English rule.

English common law is important because of the anti-federalists. They thought that there should not be a bill of rights because it would tell the government exactly where our rights could stop. They believed that the rights we have are intrinsic which is a nice thought but hard to protect. The federalists and anti-federalists idea of a free man's rights was based on English common law.

In 1791 everyone (except possibly the English) thought that we have the right to keep and bear arms. The second amendment was just what they decided to write down.

[dantodd]

Origional intenet means what they meant when they wrote the BOR.

We try to determine origional intent by the plain writing along with letters, speeches and news accounts of the day.

No, original intent means interpreting law based on the understanding and meaning at the time of the writing. (a small but important difference)

"living constitution" means what people will try and twist the meaning to based on their agenda today.

7x57 is saying that looking at the second amendment through 1866 eyes, you are 1/2 way accepting a "living constitution" because the letters, speeches and news accounts of 1866 are different from 1791.

I think you are mostly correct here though using words like "twist" and "agenda" you do a disservice to those who hold a living constitution belief.

The way I see it is that in 1866 they saw the second amendment as more expansive than in 1791, so there's nothing about the 1866 context that should limit the scope of the incorporated second amendment to anything less than the most expansive views in 1791.

Then if you look back at 1791, you know why they are talking about militias, they just got done fighting a revolution and they don't want their fight to become meaningless by allowing the new government to degenerate to something just as bad as English rule.

I suspect that since we had just put down a serious uprising in 1866 it is highly unlikely that the legislature was very excited about the idea of firearms for the purpose of arming militias for insurrection. This is likely why there was so much more focus on self-defense.

English common law is important because of the anti-federalists. They thought that there should not be a bill of rights because it would tell the government exactly where our rights could stop. They believed that the rights we have are intrinsic which is a nice thought but hard to protect. The federalists and anti-federalists idea of a free man's rights was based on English common law.

Can you support this? My understanding is that the BoR was written in response to concerns of the anti-federalists, not over their objections.



I think the dual-context model is attractive because it is more likely to attract a majority than a more traditional Originalist interpretation. Yes, a political compromise. For SCOTUS to recognize the 2A to be incorporated against the state as written it would open a very large number of militia weapons up to private ownership. I think they will be much more comfortable transferring certain rights to the States rather than relinquishing them to the people. (Sad, I know.) This could mean a lot more freedom to people in pro-gun States but still provide a lot of relief to those of us in anti-gun States. Interestingly it may also alleviate some of the firearms-based states rights battles that are currently gaining steam.

One problem with a dual-context interpretation, is that it assumes a "living rights" model instead of the "living constitution" model. If we assume that the meaning of the 2A didn't change before 1866 (i.e. orignialism) but the rights protected against State interference aren't the same as the rights protected from Federal interference then what DID change? The only logical item to look at is the right itself. I think that this logical inevitability may prove difficult for some members to stomach.

Of course this could also open up a Pandora's box of potential civil rights roll backs. It could be argued that any infringement considered acceptable in 1866 was essentially codified by the 14th amendment and can be infringed by the states.

It is quite possible that this model may attract a majority of the court with 4 of the Heller 5 either dissenting or relying on a concurrence rather than signing the majority opinion.

[bsim]

Where's the quote I'm thinking of?

Something along the lines of "...how can a person "keep and bear arms" in deference to the Federal government if the states may deny that right..."

[bsim]

Found it. From HERE.

"A Second Amendment right valid only against the federal government is meaningless to Americans disarmed by state officials..." -Alan Gura

[wash]

Maybe my terminology is not correct but my idea of a living constitution point of view is a person that will say "well it says militia so lets limit RKBA to militias because it doesn't make sense to have people owning guns today" or at worst "well, I don't care what they said, guns are bad so we can ignore that part of the constitution because the founding fathers didn't have anything better than a musket".

The reason I think the two time contexts are appropriate is that the first question is what does the second amendment mean and the second question is what did they think the fourteenth amendment meant. If the fourteenth amendment meant incorporation of the second amendment, then it's legitimate to ask what they thought they were incorporating.

If the answer is that the second amendment was an expansive individual right and that the right to self defence was implied, then the scrutiny required for gun laws will be quite strict. Shall not be infringed will finally have some teeth.

If they find that we don't have a right to self defense, I'll sign up for my government issue body guard right away...

Oh, I might be mixed up but I thought the Federalist papers were letters going back and forth between the federalists who wanted a bill of rights and anti-federalists who did not.