Feddie v. Publius: On Original Meaning and the Second Amendment
By Feddie Posted in Analysis and Predictions — Comments (11) / Email this page » / Leave a comment »
While it is true that the "colonial era has passed," the colonial Constitution is still with us. You may recall that "we the people" entered into a compact of sorts vis-a-vis this Constitution, and agreed to certain terms. We also recognized certain natural rights "retained" by the people, some of which were enumerated. One of those rights was to right to "bear arms." And while I understand that you and others like to think that there is a case to be made for viewing the Second Amendment as a collective-based right (i.e., that the people only have the right to own guns as members of a militia), no legal scholar worth his salt really believes that to be the case. Heck, even Larry Tribe has conceded the obvious. But why take his word for it. Let's see what Justice Joseph Story has to say on the matter, shall we?:
The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.
If you're really interested in delving into the original understanding of the Second Amendment, you can, of course, read the D.C. Circuit Court's marvelous majority opinion in Heller (or the corresponding Supreme Court briefs), but I think you and I both know how the evidence stacks up.
But as you concede, this really isn't about law; it's about policy.
You also use your post to make a broader point:
And that leads to one of my broader criticisms of American conservatism -- from the Progressive era on through to today. Certain strands of American conservative thought have never quite come to terms with the realities of modern life -- and more specifically, with the shift to industrialization and urbanization. The failure to look at modernity squarely in the face is particularly evident in law, but extends to non-legal contexts as well.
To repeat, the broader point is that several strands of conservative jurisprudence seem to assume a world that doesn’t exist anymore. Specifically, they assume a world where urbanization and industrialization hasn’t happened.
Your point, of course, leads me to my broader criticism of penumbra lovers. The legal left has never come to terms with the fact that we have a Constitution that has a static meaning; one that is fixed in time except to the extent that meaning is changed by way of a constitutional amendment. It may very well be that "modernity" requires us to rethink some constitutional provisions, perhaps even the Second Amendment. And that is exactly why the framers/founders provided us with a little thing I like to call "Article V."
You see Publius, I don't have a problem with your opposition to the original meaning of the Second Amendment on policy grounds. That's cool by me. We can still drink bourbon together, and discuss how wrongheaded your worldview is on just about everything. No. What troubles me is that you and other liberals believe that the policy goals you desire can and should be accomplished in a countermajoritarian fashion (i.e., by judicial fiat).
I also find it interesting that when my liberals friends are confronted with a constitutional provision they don't approve of on policy grounds, like say the Second Amendment, they all of the sudden become enchanted with federalism, and start singing "it takes different strokes to rule the world." But you see, every so often, dear Publius, that ol' incorporation doctrine can come back to bite you in the arse.
One other thought before I conclude. Let's say, for the sake of a Supreme Court Fantasy League, that Publius is right, and that the collective-right view of the Second Amendment is indeed plausible. Let's also say that this is the understanding of the amendment adopted by the Supreme Court in Heller. Then what?
Does this mean that I and other citizens have a constitutional right to form a militia like those that existed during the colonial age? One independent of the State hierarchy or its control? Because if that's the case, then I am definitely down with that. I strongly suspect, however, that this understanding of the Second Amendment would also be frowned upon by our liberal friends. "Times are different. Ignore the text of the Constitution. Blah. Blah. Blah."
But surely our liberal friends are not suggesting that the Second Amendment is superfluous. But if not, then what rights do they believe the Second Amendment affords Americans?
[Cue crickets chirping]
*Oh, and fwiw Publius, I do agree with you that the HBO series on John Adams is most excellent.
Update: Publius responds in an update to his original post. In a nutshell, he sticks to his belief that there remains "a indeterminacy problem" with the Second Amendment. I respectfully dissent from this viewpoint. When one considers the text, history, and structure of the Second Amendment, there can be no question but that the amendment was meant to recognize and protect an individual right to bear arms.
Oh, and Publius, I am still waiting for your response to my question as to the impact/application of a collective-right interpretation of the Second Amendment. What would this mean for Americans as a practical matter? I know how keen you are on consequences, so I am curious as to how one would be able to exercise his Second Amendment rights if those rights were collective, rather than individually held. Would such an interpretation permit Americans to form local militia groups that operate independently from the federal or state governments? I am just curious whether you and other legal liberals are taking the "ink blot" approach to the Second Amendment.
Update II: Klerk weighs in over at COA Review.
I like Palin
by helveticus
But especially with her being 7 months pregnant and all the other stuff added on, she's probably a long shot.
That said, in running against Obama, if the GOP is able to find an impressive woman to put on the ticket, it would just about ensure that McCain wins. So they should start looking.
As an aside, it looks like this term is going ot be another good one for conservatives. The conservatives won in Medellin. They won in Stoneridge. Based on the sittings they won in US v Williams, and it looks like they won in Boumedienne as well. And based on oral arguments, they appear to have won in Baze, Crawford and Heller.
All in all, an impressive term and even moreso when you add last year to this year.
Roberts seems to have been able to keep Kennedy on board to an impressive degree.
Roanoke Times Editorial: Agee deserves quick confirmation
by ConfirmThemFan
Justice G. Steven Agee -- DOJ Talking Points
by ConfirmThemFan
http://judiciary.senate.gov/meeting_notice.cfm?id=3236
Next Thursday (4/3), the SJC has scheduled another vote at 10:00 am on Catharina Haynes.
http://judiciary.senate.gov/hearing.cfm?id=3227
On the same day as Haynes' new vote, there is a hearing for four district court nominees at 2:15 pm.
Sarah Palin
by Whacker77
She seems like a pretty good choice to me. I don't think it will happen though. McCain appears as though he's going to run a Bob Dole like campaign. If the last few weeks are any indication, his campaign is going to be close to the vest and just plain boring. A boring campaign isn't going to pick a woman. As someone who has spoken strongly in favor of Chris Cox, I would have no problems supporting Palin. By the way, Bob Novak said today that Rob Portman is the choice of McCain insiders.
John Thune for VP
by TrueConservative
He's young, handsome, conservative, has an adorable family. He is the perfect counterweight to Obama. And obviously he has even more credentials than Obama. He could even flip Minnesota, possibly wisconsin.
I hope he's at least in the running for VP.
Let's face it, the media is going to portray mccain as an 'old, white male'.
Well, adding thune gives you a young, energetic, attractive, "white male" and should silence the dissent against mccain. I think the pick would make conservatives, and even Reagan Democrats happy.
John Thune
by TrueConservative
Re: Whacker
by zendari
So what if McCain is like Bob Dole?
Clinton in 96 was a white, 'moderate' incumbent in a time of relative prosperity and peace.
Obama in 08 is a black, far left Senator with no government experience who wants to give up the last year of progress in Iraq.
When has this country ever elected a surrender President?
Surrender Presidents
by TrueConservative
Woodrow Wilson 'kept us out of war'.
Eisenhower promised to end the Korea conflict.
Just to name a couple. It's going to be another extremley tight election. I think mccain will pull it out though. I think he loses NM, NV, CO, and VA, possibly IA - they've been trending Dem lately. He'll have to pick up OH, PA (neither of which will be a problem if Obama is his opponent), NH, and probably MI. That's where Romney would come in very handy. He has a shot at MN too. FL should be a sure thing for mccain. It's just going to be another hard fought election. And the fate of the Courts are in the balance.
Here's a recent piece from John Gizzi, political editor of Human Events, about Sarah Palin as a possible Veep for McCain. Even if this year is not hers, how about a Palin/Jindal or Jindal/Palin ticket in 2016 (or 2012 should McCain lose)?
"Since John McCain captured the Republican nomination for President last month, speculation in the press mounts about who he will name as his runningmate. Possibly the most intriguing name in the “veepstakes” is that of Sarah Palin, the first-ever woman Governor of Alaska, its youngest (44) governor, and the first to have been born after Alaska became a state. A onetime beauty queen, high school athlete, and TV reporter Palin was elected mayor of Washila in 1996 and, two years ago, made national headlines by defeating present and past governors to win the state’s highest office. Running on a solidly conservative platform and calling for Alaska to be more independent of Washington, Palin dispatched incumbent Gov. Frank Murkowski in the 2006 GOP primary and went on to defeat former two-term Democratic Gov. Tony Knowles in the fall by a margin of 48% to 41%.
Dedicated to making her state more self-reliant and freeing Alaska from unique federal constraints placed on it when it joined the union in 1959, Palin is a stalwart conservative on cultural issues. A proud member of Feminists for Life, the governor also opposes same-sex marriage or benefits going to couples that would equate to same-sex marriage. When a state court ruled last year that civil unions are to be permitted for same sex couples, Palin called for amending the state constitution to upend the ruling and to place it on the ballots before the voters.
The attractive and articulate Palin appears to be a candidate right out of Central Casting: she and dentist-husband Todd have four children (eldest son Track just joined the U.S. Army and is soon expected to be deployed to Iraq) and the governor is expecting their fifth child in May. “Why can’t she just be from another state?” is a lament heard often by Republicans who feel Palin is a natural for national office, if only she weren’t from a state that is not contiguous with the continental United States and brings only three electoral votes to the electoral column.
But the speculation persists and this was one of the questions colleagues Jim Seminara and Kami Dalton pressed Gov. Palin on in a recent interview. Would she accept second spot on a ticket headed by McCain, who disagrees with the governor on drilling for oil in the Alaskan Natural Wildlife Reserve?
“I’ll tell you, I think that the possibility of this ever happening is so far out there, that it’s tough to get my arms around and even contemplate,” Palin told us, so I don’t have an answer.” But, she quickly added, “I would like to see a governor on that ticket. I do think a governor understands, being on the front lines there, serving the constituents, how to administer. I think that’s very important for a team that would be serving in the White House.”
Palin also made it clear she didn’t believe that her differences over drilling for oil in ANWR with her party’s certain presidential nominee were insurmountable. In her words, “ I think he needs a running mate who sees the light regarding resource development, and how domestic resource development can help secure the United States. I’m very encouraged by McCain’s candidacy, though, because he so understands our national security issues. Much more so, obviously, than the Democrats who are running. So there’s encouragement there, and there’s hope there. I don’t think there’s any hope for Hillary or Barack to ever want to explore this idea of allowing federal lands that happen to be in the 49th state to be opened up for development.”
On ANWR drilling, which President Bush failed to get through the Senate when it was in Republican hands, the governor is still hopeful. “We want it to happen,” she said, “Alaskans want to open up the lands for that development, for the contributions that are potential here for the rest of the US.” Palin went on to note that “it’s really a pathetic situation
“And I have to ask lawmakers in Washington, DC, who have prohibited this drilling in ANWR if they’re doing all they can to secure the United States. When you consider, too, the geology that we’re talking about here, and the physical space that’s even needed to drill now, about a 2,000 acre plot, because of directional drilling and new technology, allowing such a small footprint to even be placed upon the tundra up north, it’s about 2,000 acres, which is smaller than the size of LAX and other big-city airports, that we would need to drill, and allow these resources to finally be tapped and to flow into hungry markets, and make us more secure. I think it’s so short-sighted.”
Less than a week before our interview, Palin sent a political shockwave out from the state Republican convention in Anchorage when she endorsed Lieutenant Gov. Sean Parnell in his challenge against the state’s 35-year Republican congressman-at-large, Don Young. The governor explained that the move is part of her vision of Alaska now “in a prime position to contribute more to the United States and to quit relying on the federal government to pay our bills for us.” As all these changes take place, she told us, “it’s going to take a change of character, and a change of personality, even, in terms of the representation that we have in Washington, D.C. coming from Alaska. Sean Parnell is, I think, a perfect person to manifest that change that is coming, that is needed, on behalf of Alaska. He wants to serve for the right reasons. He’s very selfless. And he’s very much a person taking ‘public service’ literally” -- a not-too-subtle reference to VEECO Corporation head Rick Smith, a longtime Young associate, to bribery and conspiracy charges.
As for whether she would take the same stance against 40-year Republican Sen. Ted Stevens, who is the subject of an FBI investigation as he seeks re-election, Palin would only say “I’m going to withhold judgment there. I don’t see a candidate who’s jumped into his race yet who I would feel wholeheartedly in support of at this point. So there’s still weeks, a couple months, even, to go, before we make the decision on Sen. Stevens.”
A McCain-Palin ticket in ’08? Unlikely. But Gov. Palin as a future Republican leader and politician worth watching? There’s little argument there."